REUTERS | Kim Hong-Ji

Revisiting expert evidence again

In the last 15 months I’ve posted a blog about expert evidence on five occasions (I know, I’ve counted them). The overwhelming message from all of these posts is that the experts parties appoint could do better, either in the quality of their expert testimony, not being partisan or biased and in having the appropriate expertise for the dispute.

It was therefore interesting to read Akenhead J’s views on experts in his article for the Academy of Experts journal, The Expert and Dispute Resolver, earlier this year.

Akenhead J’s paper

Sir Robert was looking at what he considers to be the “key attributes” of a competent expert witness. I’m sure he will not mind if I list them here:

  • Relevant expertise.
  • Independence.
  • Impartiality.
  • Willingness to concede.
  • Getting the basics right, by which he means getting the facts right.

The article makes some very good points and what follows are my “key highlights”.

Relevant expertise

As Sir Robert says, “it should be axiomatic that the parties should call experts who actually know and are experienced in what they are talking about”. He refers to three problems:

  • An expert that lacks expertise in the area that he is giving evidence on.
  • An expert who is a “jack of all trades”.
  • An expert who is out of date because he is no longer practising.

I touched upon some of these issues when I wrote about HHJ Mackie QC’s judgment in Proton Energy Group v Orlen Lietuva. There one of the experts lacked the relevant experience and the court described his evidence as “hypothetical and involved taking a view on contractual interpretation in a context where there is no claim of custom and usage”. The judge felt the expert’s principles were “a set of impressions, not based on firm evidence or solid experience, which he then applied to the facts of this case to reach conclusions”.

Being out of date is also something to be aware of, and it cropped up in Pickard Finlason Partnership Ltd v Lock, which I considered earlier this year. There HHJ Stephen Davies highlighted that both experts’ experience was somewhat historic, as both had acted more as “experts” than “architects” for 20 years or so.

Independent and impartial

Being independent and impartial doesn’t just apply to experts. Judges and tribunals also have to be independent and impartial, and being seen to be independent and impartial is just as important as being so. Peter Smith J will know all about this, following Lady Arden’s judgment in Mengiste v Endowment Fund for the Rehabilitation of Tigray. I discussed both the recusal application and the Court of Appeal’s judgment at the time.

In Mengiste, Lady Arden explained the importance of having an independent judiciary – not only that it is independent but that it is seen to be independent:

“of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially.”

A case of justice not only being done, but also being seen to be done.

Sir Robert suggests an expert’s independence is a key issue for the court. He refers back to the Ikarian Reefer principles, noting that they are still good today. He also suggests that judges are pretty good at spotting an expert who is a hired gun. He cautions against using an expert who asks those instructing him what he should say.

In National Museums and Galleries on Merseyside v AEW, Akenhead J was less than impressed when one of the witnesses admitted to “seeking to defend the indefensible”. At the time, I said that those instructing experts should ensure the expert sticks to the expert’s path, and doesn’t stray into the realms of partisan evidence.

Willingness to concede

Sir Robert highlights some interesting points about the importance of an expert being flexible in the witness box, realising when it is necessary to concede a point, and also realising that such concessions will not necessarily count against the expert. In fact, it may work in the expert’s favour as the judge may be impressed by the expert’s integrity:

“An expert who refuses to make concessions even when forced into a corner will be less likely to be considered acceptable.”

Getting the facts right

You’d think this goes without saying but, as Sir Robert notes, there are many examples when experts build cases on “theoretically possible causes” rather than focusing on the agreed facts and building a case on those.

Examples and concluding remarks

The article contains some examples of how Sir Robert described experts in a number of his recent cases. Although he doesn’t name the cases, after a bit of detective work, I think he’s referring to:

He sets out a number of his thoughts drawn from his experience and these cases. I will leave you with his concluding remarks, which relate to the experts role:

“That role can only be effective if the evidence of the expert is capable of belief. That can only flow from the independence of the expert… the expert must try to be accurate… otherwise an expert will appear unreliable or… might be forced to concede the opposite to what is being put forward.”

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