The modern expert: personal insights and current issues - Lord Hamblen of Kersey addresses expert witnesses at EWI's annual Conference

In his talk, Lord Hamblen initially summarised his professional background and the various kinds of expert evidence which he had encountered, both as a barrister and as a judge. He further explained how he used to work with experts as a barrister, what he had found particularly useful in terms of expert assistance, and how he would seek best to deploy that assistance. In discussing his experience as a judge, he offered suggestions as to how an expert can best assist judges, including some key ‘do's and don'ts’ based on his general experience. Finally, he addressed current issues relating to expert evidence as flagged up in recent case law.

Over his career, Lord Hamblen has encountered a great variety of different areas of expertise and experts.

From 1982 to 2008 he practiced at the commercial bar, and one of the leading London commercial sets of chambers, 3 Essex court, later 20 Essex. His main areas of specialism were shipping, international trade, commodities, insurance and reinsurance. Shipping in particular, involved dealing with a wide range of different areas of expertise. And most cases of any length would involve expert evidence. Ranging from engineering experts to expert mariners, and including chemists, physicists, fire experts, metallic jurists, naval architects, cargo surveyors, ship surveyors, agronomists, oil experts, Weather experts, and more.

After joining the High Court bench in 2008, Lord Hamblen sat regularly in the commercial court, where again, much business-related evidence would be heard. He also sat in crime, most often in murder cases, where one would have various types of forensic evidence from pathologists, medical examiners and experts in for example, blood splatter, gunshot residue, DNA, fingerprinting, and so on. Lord Hamblen also sat in the Queen's bench division, hearing general civil cases, including personal injury and clinical negligence cases.

In terms of working with experts as a barrister, Lord Hamblen stated that the key issue was understanding. In order to be able to think on their feet in cross examining an expert a barrister needed to be able to think like an expert.

Lord Hamblen’s other key “Do's” were:

• Clarity
• Structure
• Reasoning
• Building trust and confidence

His absolute number one “Don't” was to ensure that the expert is avoiding anything which might compromise their independence and impartiality. A second and related “Don't” was to avoid being an advocate. It is counsel's job to argue the case. That is not the role of the expert. Lord Hamblen’s advice to experts was to “Make points, explain points, but do not argue them.”

The third, and again related “Don’t”, according to Lord Hamblen was: “Know the limits of your expertise”.

Lord Hamblen then proceeded to illustrate the importance of all these “Don'ts” by selecting several recent cases regarding the proper approach to expert evidence. Despite the basic rules regarding expert evidence being well known, and the applicable principles changing little in recent times, Lord Hamblen noted that there has been a notable recent uptick in cases expressing concerns about inadequate expert evidence. He lamented the fact that recent case law suggests that the principles set out in the ‘Ikarian Reefer’ (now summarised in CPR 35) are frequently not being adhered to. The principles are being duly recited, but not acted upon.

Lord Hamblen referred to the Hon Justice Fraser’s list of points to be considered by experts and those instructing (made in the ICC case).

Finally, he discussed current case law under the headings of:

• Partiality
• Relevant expertise
• Conflicts of interest
• Failure to comply with expert duties

and highlighted recent cases with relevant quotes from the judgements.

Lord Hamblen concluded that he hoped that the personal insights he had provided and the summary of recent case law would be a helpful basis for thought and discussion at the conference. And that it would provide some guidance to those in the important role that they perform as experts. He pointed out that more and more cases seem to involve experts of one kind or another and that they play a very important role in dispute resolution, whether that be through settlement, mediation, arbitration, or litigation.