Case Updates

Mr Simon Britten, immediate past chair of the British Orthopaedic Association Medico-legal Committee, in his foreword to the forthcoming Expert Musculoskeletal and Orthopaedic Evidence, refers to how giving evidence one Monday in a case of tibial fracture, missed compartment syndrome and subsequent amputation, he was asked when he had last fixed a tibial fracture. Understandably, he said that the judge’s reaction to his answer ‘last Friday’ appeared to be a promising start. However, it is not a hard and fast rule that the healthcare expert should have experience, or recent experience, of performing the procedure or operation in issue. This case illustrates it.

Advanced Hair Technology Ltd v Revenue and Customs (VAT - whether hair transplants to treat androgenetic alopecia are exempt supplies of medical care) [2025] UKFTT 241 (TC) 

The complexities of this case required both parties to engage expert quantity surveyors.  Both sides approached their instructions to their expert from different angles which caused difficulties at trial.  This explained why the valuations were worlds apart (or as the judge commented they had a “manifestly excessive difference”) and needed some careful scrutiny and assessment by the judge. Whilst the approach of examining both valuations is very case specific, there are some fundamental tests which can be taken away.  An objective test was used several times as a benchmark looking at the scope of works that a ‘reasonable owner’ or ‘purchaser’ would require.  The key legal issue of “proportionality” was also visited frequently throughout the assessment of valuations. 

Iya Patarkatsishvili & Anor v William Woodward-Fisher [2025] EWHC 265 (Ch)

In this patent case, the judge noted that neither expert was a native English speaker and both had difficulties with questions put to them during cross-examination. The misstep of one expert over the word “buckling”, which he had used in his report, and his use of a translator during cross-examination for reference, led the judge to approach his written evidence with a degree of caution.

Salts Healthcare Limited v Pelican Healthcare Limited [2025] EWHC 497 (Pat)

This case illustrates how the Family Court depends on expert paediatric and radiological evidence to decide when and how a child’s fracture was sustained. This summary does not include how the court used the evidence. Suffice it to say that the expert evidence was only a part of the evidence before the court.  

C1 and C2 (Children: Fact Finding), Re [2024] EWFC 247 (B)

The judge preferred the evidence of the Claimant's expert because of the Defendant's expert’s approach to his task as expert, his confusion over the proper approach to what prior art was and was not in the common general knowledge, the number of assertions he made which he was forced to resile from as incorrect, and his failure to acknowledge a key fact.

The judge found that the forensic accounting expert’s approach of forming an opinion as to the value of the Company, then carrying out a detailed calculation and only if it matches his initial opinion accepting it, undermined the credibility and reliability of his opinion as to the value of the Company.

The Claimant alleged that the Defendant acted negligently in obtaining her consent for laser eye surgery including failing to adequately investigate her ophthalmic condition prior to the surgery.

The judge found that the evidence of the claimants' psychological expert fell well below the standard to be expected of a competent expert witness, both as to form and as to substance.

Rashpal Samrai & Ors v Rajinder Kalia [2024] EWHC 3143 (KB)

In this Bermudan case, the appellant successfully appealed to the Judicial Committee of the Privy Council to have his convictions quashed because of errors in the collection, examination and interpretation of the DNA expert evidence used in the trial.

Julian Washington (Appellant) v The King (Respondent) (Bermuda) [2024] UKPC 34

This was one case brought to trial in the multi-claimant non-freezing cold injury (NFCI) litigation. The case illustrates the challenges for experts when the clinical condition in issue is rarely encountered (or at least rarely recognised) in normal NHS practice. The detail of this judgment may be of interest only to neurologists and vascular surgeons but makes useful reading for any expert instructed in a case where non-freezing cold injury is in issue. 

Fraser v Ministry of Defence [2024] EWHC 2977 (KB)