Practical Law

Sometimes the old cases are the best ones and that surely has to be true of the Ikarian Reefer. Even now, over 25 years since the judgment at first instance was handed down (and countless other pieces of guidance have been published) we still see experts getting it wrong.

I’m not sure if anyone remembers what the case was about (I certainly didn’t) but, even without looking it up, I’d have guessed it was a shipping case (the clue is in the name!).

The Ikarian Reefer 

The case was all about the loss at sea of the Ikarian Reefer, which had run aground and then caught fire, causing it to be abandoned off the coast of Sierre Leone. The question was whether those acts were deliberate or accidental, and much depended on the expert evidence. Interestingly, the parties were entitled to call up to eight expert witnesses. Imagine footing the bill for that!

However, the judge (Cresswell J) was of the view that several of the expert witnesses misunderstood their duties and responsibilities, which meant the trial took longer than he considered necessary (even allowing for the complexity of some of the evidence). Therefore, he took the opportunity to set out what those duties were.

Cresswell J said the duties and responsibilities of expert witnesses in civil cases include the following:

• Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
• An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise.
• An expert witness in the High Court should never assume the role of an advocate.
• An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts that could detract from his concluded opinion.
• An expert witness should make it clear when a particular question or issue falls outside his expertise.
• If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one.
• In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
• If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report (or for any other reason), such change of view should be communicated (through legal representatives) to the other side without delay and, when appropriate, to the court.
• Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.

Even though an experts’ duties are now embodied in CPR 35, PD 35 and the CJC Guidance, I think the case has stood the test of time and is a good starting point when it comes to looking at expert evidence. It still makes me chuckle when I think about the Coulson J reference to the Ikarian Reefer being “a ship that passed in the night” to the expert in Bank of Ireland v Watts Group plc (which Jonathan flagged at the time).

However, I sometimes wonder if all expert witnesses pay heed to the guidance that is out there. I don’t profess to know the detail of an expert’s duties in a personal injury context, but assume they are similar to those I am familiar with. In that respect, a recent case is worth mentioning because it clearly illustrates an expert’s failure to comply with his duties (regardless of which document you refer to to understand what those duties are). It is the pain expert in Ruffell v Lovatt (and I have Crown Office Chambers to thank for highlighting this one on their website).

Ruffell v Lovatt

Ms Ruffell was injured in a car accident and claimed damages in excess of £1.6 million for complex regional pain syndrome (CRPS), which she said was caused by the accident. This was denied by the defendant (the car driver). Ultimately, the court agreed with the defendant and awarded the claimant only £12,500 for general damages.

It is the court’s comments on the claimant’s pain expert (Dr Jenner) that are of particular note. For example:

• Dr Jenner “had not mastered this topic [CPRS]: he had cited papers no-one else considered them relevant”.
• The claimant’s psychological problems predated the car accident (she had had them for most of her adult life) and yet he “put the cart before the horse” and considered the car accident as “year zero” when it came to the claimant’s medical problems. He treated everything as flowing from the accident and did not “read and consider the claimant’s entire medical records before he first reached his conclusion”. This led to him describe her as “fit and well” before the accident: a view which he continued to maintain throughout his reports (which spanned the period 2013 to 2017).
• The court said the claimant was not a “reliable historian”. That meant that as Dr Jenner relied on her evidence (he “accepted what he was told by the claimant without reservation”), his conclusions were based on unreliable evidence.

This led the court to question Dr Jenner’s credibility, concluding that his evidence was “so flawed”, it could not be relied on in “any contentious respect”:

• Dr Jenner was “dismissive of those who did not agree with his rigidly held opinions” and adopted a dogmatic approach in one exchange with counsel, which the court said was:
  

  “… inconsistent with the obligation on an expert witness to consider and acknowledge where there is a range of opinions, even if the expert, for his own reasons, rejects them.”

• Dr Jenner’s evidence was “combative” and he repeatedly acted as the claimant’s “advocate”:
  

  “There was a lack of balance and much argument in his evidence. Rather than answer a question directly Dr Jenner would often sidestep and respond with an argument to support the claimant’s position.”

Ultimately, the pain expert’s evidence was rejected.

It is another example of what happens when something goes wrong with the expert evidence. One can only speculate on how the outcome may have been different, if the expert had approached his duties differently. If he had, the parties may have been able to narrow the issues, unravel things and assist the process.

Thankfully my recent experience has been positive in this regard.