Critical thinking

Expert witnesses have found themselves increasingly in the spotlight in recent months, following the abolition of expert witnesses' immunity from suit in Jones v Kaney. Given that there have been several recent cases in which the courts have criticised expert witnesses, this is perhaps a good time to consider the consequences of such criticism, both for the expert and their instructing client.

Cross-examination

In the recent unreported case of Vickrage v Badger (April 2011), the claimant (as executrix of her late husband's estate) was claiming damages in respect of his death in a plane crash. The defendant applied for an order that the claimant be debarred from using her expert's report at trial. HHJ Yelton agreed that there were 'serious deficiencies' in the report: the expert had 'overstepped his position'; for example, by using the word 'negligence' in respect of the pilot's conduct.

Moreover, the expert had, in several respects, failed properly to analyse the evidence given to the coroner. While he did not find that the report had been prepared in bad faith, HHJ Yelton did note that at certain points it went beyond the Protocol for the Instruction of Experts in Civil Claims.

However, he highlighted the difference between the report being defective and it being so severe a breach of the protocol that the claimant should not be permitted to rely upon it at trial. Instead, the serious deficiencies could be the subject of cross-examination.

While both the claimant and the expert may have been relieved that the report did not need to be redrafted, which would also have delayed the trial, there must be a genuine risk that the expert's evidence may be rendered almost worthless on cross-examination. Under such circumstances, a party might conceivably be better off going back to the drawing board. So, post Kaney, might an expert.

Discounted evidence

By contrast, in Double G Communications Ltd v News Group International Ltd [2011] EWHC 961 (QB), Mr Justice Eady discounted both parties' expert evidence. The claim concerned a license agreement dated December 2008 under which Double G was licensed by NGI to produce and distribute a Page 3 board game. In May 2009, NGI told Double G that the project was being abandoned. Double G accepted NGI's repudiatory breach and brought a claim for damages.

The court's task was to assess the damages, in particular by reference to lost profits which would have arisen during the course of the three-year agreement. The expert evidence was intended to assist in calculating these damages on the basis of experience of the retail trade and the relevant market sector. The experts took very different approaches and were unable to find any meaningful common ground.

In Mr Justice Eady's view, neither expert inspired great confidence. One expert was criticised for being incapable of answering questions in an illuminating or straightforward way, and appearing to be more of an advocate than an objective assessor. The other was criticised for sticking to his theories through thick and thin to such an extent that it fundamentally undermined his credibility, and meant that little weight could be placed on his judgement or objectivity.

Accordingly, Mr Justice Eady held that he could only rely on the experts for purely factual information, although even this reliance was very dependent on the reliability of their sources. He concluded that 'neither provided the court with a convincing methodology for estimating the damages. I was left, in effect, to evaluate two competing stabs in the dark.' Damning with faint praise, indeed.

Conflicting duties

In Stanley v Rawlinson [2011] EWCA Civ 405, a claim for damages relating to a boundary wall, the Court of Appeal considered the trial judge's criticisms of the claimant's expert. In summary, HHJ Moloney QC considered that the expert's opinion remained favourable to the claimants even when there had been adverse developments in the evidence. He further criticised correspondence in which the expert had, in his view, gone 'beyond the usual role of an expert witness by advising the claimants on the evidence they needed to meet the opposing case'. He was also impliedly critical of the expert for maintaining during cross-examination that he owed a dual duty to the court and his client.

Tomlinson LJ held that the expert was quite right to observe that he owed a duty to his client as well as the court; this is inherent in CPR part 35.3.1 and explicitly stated at paragraph 4.1 of practice direction 35. He concluded: 'Experts are often involved in the investigation and preparation of a case from an early stage. There is nothing inherently objectionable, improper or inappropriate about an expert advising his client on the evidence needed to meet the opposing case, indeed it is often likely to be the professional duty of an expert to proffer just such advice.'

Accordingly, Tomlinson LJ found that the trial judge had been unduly critical of the expert. However, the appeal was dismissed as the judge's decision had not been affected by his approach to the expert.

Potential pitfalls

These cases highlight several potential pitfalls for expert witnesses. The first is the need for an expert to remain impartial and independent and not to become an advocate for their instructing client. Balancing the potentially conflicting duties owed to the court and the instructing client is not always going to be straightforward. Even (or perhaps especially) post Kaney, experts need to remember that their prevailing duty is to the court. They can at least take heart from the common sense approach employed by the Court of Appeal in Stanley.

Second, experts should beware of being too dogmatic or inflexible. It is important to revisit an expert's report whenever there are any significant evidential developments which might impact on an expert's conclusions, whether positively or negatively. Equally, the judges in Stanley and Double G were clearly troubled by the experts' inability or refusal to consider alternatives or concede a point. Rather than being impressed by the strength of their conviction, they appear to have seen this as a weakness which crucially undermined their credibility.

Finally, experts should always be clear and open about the limits of their knowledge or experience, and of any sources used in collating their report. NGI's expert in Double G came under fire for being unable to provide direct evidence himself and instead resorting to total strangers located by a search on Google, who had moreover stated that they did not consider themselves to be qualified to help with his queries.

Double G's expert was also criticised for declining to identify much of the data which he relied on in reaching his conclusions, for reasons of confidentiality. While experts are entitled to take into account unpublished data, market intelligence and general knowledge within the relevant field, they are also required to state the facts or assumptions on which an opinion is made. Given the expert's inflexibility on his evidence Mr Justice Eady was not prepared to place any weight on his evidence without analysing and assessing his reasoning processes.

Any reservations about a source used or evidence obtained should therefore be addressed up front, rather than waiting for the other side or, more importantly, the court, to take the point and/or make the criticism.

To prevent an expert's report from being criticised by the court, it is imperative that the expert is fully up to speed with part 35 of the Civil Procedure Rules, practice direction 35 and the protocol. Instructing solicitors should bring them to their expert's attention when instructing them, and remind experts of their duties under them throughout the litigation process.

Experts should remember that the courts can be vocal in their criticism, and that the ensuing reputational damage can be extensive, particularly if the case makes the (inter)national media. Judicial criticism may also raise the spectre of professional disciplinary proceedings. However, while the courts do have the power to make wasted costs orders against experts where they have acted 'recklessly or in flagrant disregard of [their] duties to the court' (Phillips v Symes [2004] EWHC 2330 (Ch)), there is no evidence that any such order has yet been made.

As regards the parties, it seems that the courts are generally sensitive to the need not to penalise them for their experts' failings. Recent cases show a preference to place less weight on evidence that is doubted or to allow an expert to be probed under cross-examination rather than taking what HHJ Yelton characterised as 'the extreme step' of preventing reliance on such evidence at trial. It should also of course be remembered that any judicial criticism will not necessarily equate to negligence on the part of the expert as towards his instructing client.