The evidence of expert witnesses has been placed under the microscope recently, with Panorama’s ‘Justice for Sale’ investigation (broadcast on 9 June 2014) showing experts aren’t always impartial.
The timely expression of Head of the Technology and Construction Court Sir Robert Akenhead’s views on expert essentials in an article for the Academy of Experts Journal The Expert and Dispute Resolver, is therefore very welcome.
Mr Justice Akenhead considered that the key attributes of competent expert witnesses should be:
- Relevant expertise;
- Willingness to concede;
- Getting the basics right.
The role of expert witnesses
Mr Justice Akenhead expressly stated that the parties should call experts “who actually know and are experienced in what they are talking about.” Choosing the right expert is therefore key: paper qualifications are not always essential, as it is relevant knowledge and an understanding of the expert’s role that counts.
The first and last of the above bullet points are illustrated in the recent Scottish case of Kelly v Riverside Clyde (Property Holdings) Limited . Both sides called experts to give opinion evidence on the behaviour of seagulls in urban areas, specifically when gulls would ‘strike’ at pedestrians.
The claimant’s expert was from the RSPB and was found by the judge “to be an impressive expert who was straightforward, frank, helpful and based his opinion on common sense and years of experience.” The defendant’s expert was a retired teacher who spent his time ‘ringing’ birds and researching urban gulls. The judge found him to be “authentically an expert in the area of urban gulls,” and said that “he gave thoughtful and articulate evidence based on his own extensive experience and a thorough knowledge of the relevant statistics.”
Both experts were impressive as far as the court was concerned. The expert from the RSPB was more of a generic expert, lacking specific expert knowledge on basic gull behaviour, while the defendant’s expert knew the gull colony in question from personal study. The experts’ evidence was disputed. The case eventually turned on witness testimony.
On paper, the court should have been persuaded by the RSPB expert (as he was ‘better qualified’ to comment) but it wasn’t. The judge instead preferred the defendant’s ‘lesser qualified’ expert evidence, saying: “of two very good experts, he was the more impressive on matters of detail. He was in complete command of his subject.” Relevant expertise and getting the basics right counted in the defendant’s favour.
In most disputes, expert opinion evidence can make a telling impact. The expert’s qualifications to comment do not rest solely on a professional certificate and it is a long-accepted tenet that an expert may be qualified by experience as well as by professional qualifications, as shown most recently in Kelly. However, whatever their experience, the independence of the expert is the bedrock of their credibility. It does not matter that an expert has relevant expertise or gets the basics right, if they fail to maintain their independence, impartiality or lose the willingness to concede.
Not too long ago, I was instructed by a client who had found their own expert prior to my involvement. Their faith in him was unshakeable. He rewarded that faith by arbitrarily dismissing any challenge to the client’s claim. Such certainty from an expert is not reassuring: it smacks of a lack of independence, impartiality or a willingness to concede. Warnings to the client that such a dogmatic approach would cause issue at trial were ignored. The court found the expert’s evidence to be fatally flawed and he was accused of having acted as an advocate for my client and of forgetting his obligation to the court.
In another claim, the parties’ experts offered reports and addenda, in which the defendant’s expert repeatedly rejected the claimant’s expert’s point on the grounds they had not proved the claim to his satisfaction. The claimant’s expert considered the facts as they came to light and, where his opinion changed as a result, he duly reported this. The defendant proclaimed this to be evidence of inconsistency and saw it as weakness. The defendant trumpeted its own expert’s clear, consistent and unshakeable opinion evidence. Just three weeks prior to trial, the defendant’s insurers finally got a look at the experts’ reports. No doubt an eyebrow was raised by the dogmatic attitude exhibited by the defendant’s expert; certainly both eyebrows would have gone up at the costs that had resulted. By that point the statements were in, the evidence had crystallised and both parties were geared up for a trial. Efforts at persuading the defendant that their expert had forgotten his obligation to the court fell on deaf ears. The defendant’s insurers, who were not blinkered to the risk of presenting expert evidence that appeared less than unbiased, saw the folly. The defendant settled.
Mr Justice Akenhead says that “an expert who refuses to make concessions even when forced into a corner will be less likely to be considered acceptable.” This seems obvious, but it was a point lost on the above defendant.
Sir Robert Akenhead considered in the conclusion of his piece that the “role [of an expert] can only be affected if the evidence of the expert is capable of belief. That can only flow from the independence of the expert [and] the expert must try to be accurate […] otherwise an expert will appear unreliable [and be] forced to concede the opposite to what is being put forward.”
We should remember that picking the expert carefully is absolutely vital but also that blindly following the advice of an expert that is contradicted by the facts is dangerous. Expert opinion that deviates from the facts quickly loses its credibility and persuasive weight, and it begins to look like dogma or partisanship. If your client depends upon such evidence to support a claim, it is better they are advised on the risks of doing so, than left blind to them.
For more information on any of the issues raised in this article, please contact Lyons Davidson’s Civil Litigatio team by phoning: 0117 904 6000.