Expert Evidence - Lessons learnt From 2023 - Part 2

In the concluding instalment of our reflection on the topic of judicial comment relevant to expert evidence in 2023, Emma Hague and Marc Harries of the Clyde & Co Expert Subject Matter Group highlight six further decisions considered of interest to both experts and practitioners.

Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2361 (Pat) (25 September 2023)

The issue – Was the expert’s evidence within the scope of their expertise.

“The starting point in both CPR Pt 35 and the accompanying Practice Direction is therefore that the expert witness must give evidence on matters which fall “within their expertise”.” 

The Judge found that one of the Claimant’s witnesses was giving evidence which “fell well outside the scope of her expertise.” This was apparent from cross-examination and continued throughout her oral evidence. She had sought to understand and educate herself on an issue, but it was not within her field of expertise, and she should not have been giving evidence on those points. 

Wambura & Ors v Barrick TZ Ltd & Anor [2023] EWHC 2582 (KB) (23 October 2023)

The issue – Should the court allow expert opinion evidence.

“I do not believe the way to assist the court is to permit expert evidence to try to complete the evidential matrix upon which the trial judge will make their decisions, when the nature of that expert evidence would be subjective opinion.”

The Claimants applied for permission to bring evidence from a security expert. They proposed an expert "specifically experienced in issues of the use of firearms and the use of force". They noted that the defendants had denied "unreasonable and excessive force was used by the police in the relevant incidents" and their denial that "the Defendants were aware of a likelihood that the police would use unreasonable and excessive force against trespassers". The Claimants expressed a belief that the court would benefit from expert evidence on those contested issues and indicated that they had identified an appropriate expert.

The Court considered the Kennedy test and held that such evidence would not assist the Court. The Judge accepted the defendants’ submissions “that this analysis is precisely the task that Trial Judges have undertaken without apparent difficulty, or the assistance of expert evidence, in the authorities placed before me.” The international standards governing use of force were not so technical that the trial judge would need expert evidence to interpret them. As this strand of the Kennedy criteria was not satisfied the application for permission failed. 

Nash v Volskwagen Financial Services (UK) Ltd [2023] EWHC 2326 (KB) (21 September 2023) 

The issue – The expert’s use of language.

“In my judgment, it was a change in the evidence about a matter at the heart of expert evidence, namely the question of probability.”

The expert changed his opinion from asserting that a vehicle fire ‘must’ have resulted from a defect in that vehicle to it being ‘more than probable’. He did not change his written report to reflect his significant qualification to the degree of probability that the cause of the fire was from a defect in the vehicle.

The Judge did not agree with the submission that it “was simply a use of language.” It was noted that the Trial Recorder had significant concerns about the expert which affected the extent to which the Court could rely on him, particularly his retreat in his evidence and his failure to qualify his written report.

Crypto Open Patent Alliance v Wright [2023] EWHC 2408 (Ch) (03 October 2023)

The issue – Expert evidence as hearsay.

“The hearsay evidence would therefore be wholly duplicative.”

The Claimant served a CEA Notice in relation to expert reports served in previous proceedings involving the Defendant. The Defendant applied to exclude the material from evidence. He submitted that “the upshot of this is that [the Claimant] intends to rely at trial on expert evidence from no less than three experts in the same discipline (albeit that in respect of two of these experts it seeks to do so by way of hearsay)”. The Claimant maintained that the material was admissible, relevant and ought not to be excluded, while accepting that the Defendant may make any points he wishes at trial as arguments as to weight.

The Court has a discretion under CPR 32.1 to exclude hearsay evidence. The Judge decided that the evidence sought to be adduced by the Claimant would be excluded. The Claimant only sought to rely on passages which dealt with the same documents as in another expert’s report already prepared in the proceedings. The hearsay evidence would therefore be wholly duplicative, and the Trial Judge would not benefit from their inclusion. The admission of the reports would also result in disproportionate cost. 

Rowe v HDI Global Specialty SE [2023] EWHC 2722 (KB) as heard in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) (31 October 2023)

The issue – Breakdown of relationship with the expert. 

“Absent an expert's report, the claim was bound to fail”.

The Claimant applied for permission to substitute the expert due to the breakdown in relationship between the expert and her solicitors. In addition, a stay was sought with the Trial date to be vacated. There had been a concession that the case depended on expert evidence being adduced for the Claimant and the Court had already refused to admit the report of the expert, and by this stage, there were concerns expressed about the fitness of the expert to give evidence. At the pre-trial review the Judge dismissed the Claimant’s application and ordered that the Trial date be vacated and the claim be dismissed with costs.

The Claimant appealed and failed. The Appeal Judge found the judge had taken into account a number of factors in deciding to refuse an application for an adjournment and to give an opportunity for the instruction of another expert in the knowledge that this deprived the Claimant of her ability to make her claim at trial. The relevant factors included there being no full explanation as to why the application was being made so close to the Trial date and the chronological account was full of gaps and did not provide the Court with the detail that was required. On Appeal there was a much fuller chronology, but this didn’t excuse the nature and extent of the delay. There was evidence that there were problems with the expert months before the application was made and whilst other experts had been located, there was no evidence as to whether they had capacity to prepare a report for the Claimant. The Judge also found there had been a lack of candour shown by the Claimant’s solicitors. These matters had been weighed against the view that absent an expert report the Claimant’s claim was bound to fail but it was determined that the Judge had not exceeded the generous ambit of his discretion in refusing to grant a stay or by vacating the trial and in consequence not permitting the Claimant to rely upon a new expert report.

TUI UK Ltd v Griffiths [2023] UKSC 48 (29 November 2023) 

The issue – cross examination of an opposing party’s expert

“If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected”

The claimant brought a claim for damages for personal injury and, in doing so, obtained an expert report. The defendant put questions to the expert but did not call any evidence of their own nor ask that the claimant’s expert attend trial to be cross-examined. The trial Judge dismissed the claimant’s claim and discounted the claimant’s expert evidence. This decision was appealed, and a High Court Judge found that since the defendant did not call evidence to counter the expert’s evidence, and it was not challenged at trial, then it was not open for the trial Judge to discount the evidence.   This decision was subsequently overturned by the Court of Appeal.

A further appeal by the claimant to the Supreme Court of the Court of Appeal decision was successful. The fact that the defendant had not asked to adduce their own expert evidence nor sought to cross-examine the claimant’s expert, meant that the trial was unfair. The general rule being that in civil cases, a party is required to challenge by way of cross-examination the evidence of a witness or expert if that party then wishes to submit to the court that the evidence should not be accepted. This decision will be particularly of impact to claims under £25,000 where permission for expert evidence is usually reserved for the claimant and may result in a defendant having to incur the cost of obtaining their own expert evidence in a case which may not typically justify the cost of doing so.

Finally, a summary of 2023 wouldn’t be complete without reference to Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) (31 October 2023) and a reminder to ensure your experts are paid ahead of Trial or else run the risk of them not attending!

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