Practical Law

I’m often asked why I rarely blog about what it takes to be a “good” expert witness, instead of focusing all the time on examples of “bad” expert witnesses.

My answer?

Because the cases containing examples of “bad” behaviour are far more bloggable than those brief sentences where the judge applauds a witness for their behaviour, whether that is in the witness box or prior to that, in their conduct throughout the dispute, including in writing their expert report. That is clear from the good, the bad and the ugly that follows.

The good

What makes a good expert?

The starting point has to be understanding and complying with the requirements for expert evidence, which are set out in three main places: CPR 35, its Practice Direction (PD35) and the Guidance for the Instruction of Experts in Civil Claims:

• CPR 35.10 provides that an expert’s report must comply with PD 35.
• PD 35.3 explains the form and content of an expert’s report and includes matters such as:
  • giving details of any literature or other material that has been relied on (paragraph 3.2(2));
  • making clear which of the facts stated in the report are within the expert’s own knowledge (paragraph 3.2(4)); and
  • saying who carried out any “examination, measurement, test or experiment” that the expert has used for the report (paragraph 3.2(5)).
• The Guidance, in particular paragraphs 48-60.

Importantly, an expert’s report must:

• Contain a statement that the expert understands their duty to the court, that they have complied with that duty and that they are aware of the requirements of CPR 35, PD 35 and the Guidance (paragraph 3.2(9), PD 35.3).
• Be verified by a statement of truth:

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”

It is clear from the case law (see The Bad below), that not all expert witnesses understand and comply with these requirements. However, many do and perhaps the fact that judges don’t always comment is a reflection of that.

A good expert is extremely helpful to a tribunal. What makes an expert “good” may depend on the circumstances of the dispute but, in broad terms, I think it is where they are genuinely looking to assist the tribunal. They may do this in a number of ways, such as identifying the issues and areas of disagreement between the experts or by providing a reconciliation of the parties’ positions (financial or otherwise). This is particularly helpful  when the parties’ submissions are complex and/or muddled, or where the accounts or delay analyses have been prepared using different formats or methodologies. Also, providing alternative opinions on disputed liability points such that the tribunal has a “shopping list” to work from. Similarly, categorisation of differences and/or the provision of spreadsheets that enable the tribunal to input its finding on a recurring issue (like a labour rate or a mark up) and which will perform calculations for the tribunal. In my experience, these things save me time and the parties money.

The bad

Rather than writing anything new here, I thought people could just look back as some of my previous posts. Examples include:

• Fraser J seeks an end to “preponderance of partisan experts” (August 2018).
• Expert’s evidence was extraordinary and “shot through with breath taking arrogance” (October 2017).
• The parties cannot agree whether a cow that is stuck in the mire will moo (August 2016).
• Is expert shopping like parties manipulating the adjudicator appointment process? (June 2016).
• Twelve reasons why expert’s evidence was “entirely worthless” (December 2015).
• Experts take it on the chin as Akenhead J’s “gloves are off” again (October 2014).
• Expert evidence and kitchen sinks (September 2014).

and the ugly

One case above all others is worthy of mention in the ugly section, as it concerned contempt of court proceedings brought against an expert witness.

In Liverpool Victoria Insurance Company Ltd v Khan and others, the court committed a lawyer and a medical expert for civil contempt for making false statements in evidence.

The medical expert, Dr Zafar, produced medical reports on an “industrial scale”. According to the judgment, it was about 5,000 a year, each taking around 15 minutes to produce including an examination of the client. I worked this out. That means if he was producing four reports an hour – assuming a seven-hour day, five-day week – he was working solidly for 36 weeks a year. Some production line, no matter how fancy the software installed on his laptop was.

In this case, he had made revisions to his report without re-examining the client and without exercising any professional judgment. He revised a whiplash prognosis from one week to “6 to 8 months” because the lawyer had suggested that period was appropriate.

The judge found the expert did not care whether the revisions were true or false, or whether they would mislead the court. The judge held that making false statements in documents verified by a statement of truth was reckless and that was sufficient for a finding of contempt.

Consequently, the medical expert was sentenced to six months imprisonment, suspended for six months, and the lawyer was imprisoned for 12 months for fabricating a letter and file note in an attempt to build a dishonest case, then lying about their origin in court. He also forged a client’s signature on a witness statement.

Interestingly, on appeal, the Court of Appeal found the expert’s sentence was too lenient. As part of that judgment (which included Sir Terence Etherton, the Master of the Rolls, on the panel), the court said:

“… the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient.”

It went on to add this applies regardless of whether the false statement is made by:

“… a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth.”

However (and these are the really important words):

“In the case of an expert witness, the fact that he or she is acting corruptly and makes the relevant false statement for reward, will make the case even more serious; but it will be a serious contempt of court even if the expert witness acts from an indirect financial motive (such as a desire to obtain more work from a particular solicitor or claims manager), or without any financial motivation at all, and even if the expert witness stands to gain little financial reward by it. This is so because of the reliance placed on expert witnesses by the court, and because of the corresponding importance of the overriding duty which experts owe to the court.”

Gulp.

Conclusion

Thankfully, such extremes as the ugly example are rare in construction disputes (at least I hope they are), but we still get experts acting as hired guns. As Clint Eastwood’s character (Blondie) said to his side-kick (Tuco) in the Sergio Leone classic:

“You see in this world there are two kinds of people my friend. Those with loaded guns, and those who dig. You dig.”

I’m not sure if I’m holding the gun or the shovel but I know for sure that judges have guns and have experts in their sights.