Expert Evidence - Lessons Learnt From 2023 - Part 1

Over the course of 2023, the Courts have continued to wrestle with important issues surrounding the wide encompassing topic of expert evidence. In our annual review of lessons learnt, we highlight those considered of most importance to experts and practitioners alike.

Fawcett & Ors v TUI UK Ltd [2023] EWHC 400 (KB) (15 December 2022)

The issue – Challenging expert evidence before trial.

"I find that this particular objection is classically a matter for the trial Judge's judgment and discretion."

The Claimant’s applied to exclude expert evidence before trial. It was claimed that the Defendant’s expert did not have the requisite expertise, expressed opinions outside the area of his expertise, and lacked impartiality. 

Mr Dexter Dias KC (sitting as a Deputy Judge of the High Court) held that assessing expertise would require the Court to hear oral evidence and have the expert’s expertise probed and dissected. He deemed that neither a necessary nor a proportionate course of action at the procedural stage, adding that’s precisely the purpose of a Trial. Regarding the alleged expressing of opinions outside of the expert’s area of expertise, the Judge found that to be a matter for the Trial Judge’s judgement and discretion. When considering the allegation of a lack of impartiality the Judge agreed with the Defendant and found that tantamount to an allegation of bias. 

The application was held to be fundamentally misconceived and was dismissed. 

Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC) (05 April 2023)

The issue – Should the Court allow the Claimant’s experts to be replaced?

"The Court has a general discretion to permit a party to change the identity of the expert on which it relies, pursuant to its specific power to control the use of expert evidence under CPR 35.4 or as part of its general case management powers under CPR 3.1(2)."

The Claimant’s applied for permission to call a new expert in place of a forensic scientist and a fire engineer (whom they already had permission to call). The Defendant’s did not oppose in respect of the forensic scientist, but their position was that the Court should make permission subject to conditions that the forensic scientist’s earlier reports, opinions and investigation notes be disclosed. They opposed the application in respect of the fire engineer on the basis that no proper explanation was provided for the proposed substitution; alternatively, if permission was granted by the Court, it should be on condition that his earlier reports, opinions, and notes should be disclosed.

The Claimants were forced to replace the forensic scientist due to serious illness. In those circumstances the Judge considered that it would be unjust to impose a condition that the Claimants must disclose her reports, draft reports or other documents setting out her opinion. However, an order was made for the disclosure of the forensic scientist’s reports and notes of site inspections and interviews on the basis that those documents contain relevant, primary information that is no longer available to the other experts.

With respect to the fire engineer the Claimants were dissatisfied with him as an expert. The Judge found that “It is in the interests of justice that the Claimants should have permission to rely on an expert in whom they have confidence.” Permission was therefore granted for him to be replaced on the proviso that the Claimants disclose his expert reports, draft reports and any other report (draft or final), letter, email, note or other document.

Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB) (25 April 2023)

The issue – The expert did not deal with all the evidence fairly.

"He did not appear to me to understand the obligation of an expert fairly to deal with all the evidence and not simply to address the points that support his hypothesis."

Following a road traffic accident, the Judge heard from three accident reconstruction experts. The Judge concluded that he could not rely upon the evidence of the Second Defendant’s expert. This was due to him advancing “propositions of physics that were obviously incorrect.” The Judge also found that the expert in question “was happy to emphasise the witness evidence that supported his theory whilst remaining silent about those witnesses whose evidence did not.” 

Specifically regarding a live issue of there having been no evidence on the road after the accident occurred, the expert advanced an explanation during cross-examination. The Judge was critical that this had not been raised during the experts’ discussion or in the joint statement. The Judge formed the opinion that the expert made this explanation up as he was giving evidence. He concluded that the expert “has not complied with his obligation to help the court understand the expert evidence and in explaining his conduct to me, he has given inaccurate and unreliable evidence.”

Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565 (KB) (29 June 2023) 

The issue – The Claimant’s care expert’s evidence was found to be unsatisfactory and ill-thought out.

"Significant parts of her evidence were unsatisfactory and/or ill thought through. I find it very concerning indeed that such evidence underpinned a very large, and when properly tested, in part clearly unsupportable claim within the schedules."

The case was pleaded at £6.1m but damages were ultimately assessed at £275,000. It was alleged that the Claimant’s orthopaedic injury had deteriorated to such an extent that he was unable to work for the rest of his life, had significant care needs and was unable to care for his two severely disabled children. The Judge found the Claimant’s care expert had not stress tested how the Claimant’s household would have functioned but for the accident, and had failed to appreciate that what she put forward was unrealistic.

Further, prior to the parties respective pain experts giving evidence the Judge had to ask both Counsel to remind the experts about their duty to notify both the parties and the Court of any change of opinion. The Judge stated that he “found it very concerning that the intention was that [two of the claimant’s experts] would give oral evidence without adequately addressing the obviously relevant and important changes in evidence which had occurred since they complied their reports.”

Gheewalla v Rasul & Ors [2023] EWHC 2074 (Ch) (09 August 2023)

The issue – The parties failed to agree a joint expert, thus an application to Court was made.

"The current application before me could have been made by consent and it is unclear why the Claimant withdrew from a previous proposition that it would be."

The parties had failed to agree a joint expert. The Claimant applied to the Court and requested that the Judge appoint an expert from amongst those proposed by the Claimant and First Defendant. 

The Judge was critical of the Claimant stating that “The appointment of an expert has been unduly protracted and this, in my view, is almost entirely due to the Claimant not properly engaging with the process by finding an expert suitable and willing to act and thereafter procuring CVs for those experts so that the First Defendant could properly evaluate their suitability. This was only done by the Claimant at a late stage.”

For more information and insights from our Catastrophic Injury Experts subject matter group visit here.