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11

www.solicitorsjournal.com

Experts should be

able to give lucid

evidence-in-chief,

conscious of their

obligations to the

court

>>

of an advocate, and also when they should

not accept instructions due to conflicts of

interest;

„

„

Be able to write an expert report that is clear,

balanced, comprehensive, and logical, and

which meets the needs of the court as well

as the client; and

„

„

Be able to give lucid evidence-in-chief,

conscious of their obligations to the court as

well as their client, and to be able to withstand

the pressures of cross-examination, knowing

when it is proper to make concessions. Expert

witnesses are increasingly also needed to

make a sensible contribution when giving

contemporaneous evidence with the expert

from the other side (or ‘hot tubbing’, as it is

often called).

The areas of principle which RICS sees as

causing the most challenges are expert witnesses’

understanding of the nature of their primary

duty to the court and the associated distinction

between being an expert and being an advocate.

The most challenging areas of practice relate to

writing expert reports, giving evidence, and

coping under cross-examination.

Duty to the court

The past 20 years have seen professional bodies

develop ever more sophisticated and stringent

codes of conduct and ethical rules which set out

the duty of the expert witness to the court or

tribunal. This evolution started in the UK in 1993

with the seminal

‘Ikarian Reefer’

case (

National

Justice Compania Naviera Sa v Prudential Assurance

Co Ltd

[1993] 2 Lloyd’s Rep 68), which established

the principle that the expert witness’s duty to the

court overrides any duty to the client. Mr Justice

Cresswell held:

„

„

Expert evidence presented to the court

should be, and should be seen to be, the

independent product of the expert,

uninfluenced by the exigencies of litigation;

„

„

An expert witness should provide

independent assistance to the court by way of

objective and unbiased opinion to matters

within their expertise;

„

„

An expert witness should never assume the

role of an advocate;

„

„

An expert witness should not omit to consider

material facts that could detract from their

concluded opinion;

„

„

An expert witness should make it clear when a

particular question or issue falls outside their

expertise; and

„

„

If, after the exchange of reports, an expert

changes their view on a material matter,

having read the other side’s report or for any

other reason, such change of view should be

communicated to the other side without

delay and, when appropriate, to the court.

Advocates and experts

The roles of advocate and expert witness are very

different, requiring distinct skills, and cannot

normally be carried out by the same person.

However, in certain circumstances some tribunals,

usually lower order tribunals, do allow experts to

act in the same case both as advocate and as

expert witness where it is in the public interest, and

where not allowing such a dual role would limit

access to justice by certain parties.

RICS practice statement (PS) 9.1 provides that

a member may only act in a dual role as advocate

and as expert witness where neither the rules nor

the customs of the particular tribunal prohibit

them from so acting, and other relevant factors

make it appropriate (e.g. the disproportionality

of retaining two persons in separate roles).

PS 9.2 then provides that should they intend, or

be invited, to act in a dual role as advocate and as

expert witness, they must consider both whether it

is permissible to do so and also whether it is

appropriate. They should promptly communicate

to their client the results of such considerations,

setting out in writing the likely advantages and

disadvantages of acting in a dual role in the

particular circumstances of the case, so as to

enable the client to decide whether they should

indeed do so. In such communication the expert

must detail:

„

„

The possible impact on their impartiality as

expert witness, any possible impact in terms

of the perception of that impartiality by

others, and any possible impact on their

advocacy submissions;

„

„

Whether or not they will be able to fulfil both

roles properly at all times; and

„

„

Whether or not it would be disproportionate

in all the circumstances, or otherwise in the

client’s best interests, for a separate person to

be retained to undertake one of the roles.

Having complied with the above, they may only act

in both roles if the client instructs them so to act.

Where they confirm instructions to act in a dual

role, the expert must clearly distinguish between

those two roles at all times, whether in oral

hearings or in written presentations.

An expert acting as an advocate is bound to act

in the best interests of their client, and is absolutely

entitled to be partial. In such circumstances, the

duty owed by the expert falls some way short of

the overriding duty generally owed by an expert

witness. Nonetheless, as is the case with a legal

practitioner, a duty is owed to the tribunal (usually

an arbitrator) to act properly and fairly, and the

tribunal should not be misled in any manner.

SJ

FEATURE

PRACTICE

SJ 160/6

Expert Witness Supplement Spring 2016