At a recent Frontier Economics Litigation event, the President of the Competition Appeal Tribunal, The Honourable Mrs Justice Bacon, warned that advocate economists, or economists who ignore obvious analytical points adverse to their client, were not helpful to the Tribunal and self-defeating for the expert.

The case focussed on the validity of a will and codicil made by a wealthy lady, Mrs MacDougall, as well as a number of substantial gifts and transactions made in the years before her death. Both parties called experts in Old Age Psychiatry to provide evidence on issues of testamentary capacity, as well as Mrs MacDougall’s vulnerability to undue influence.

The judgment dealt with two test cases and a number of generic issues arising from a series of claims brought by former members of the military for damages for noise induced hearing loss (‘NIHL’). The judge preferred the evidence of the defendant’s employment expert who had more relevant experience and knowledge and engaged more critically with the evidence.  

The claimant was diagnosed in 2023 with mesothelioma, after attending his general practitioner complaining of shortness of breath. Initially, the treating hospital considered he was suffering from lung cancer but later, after further consideration, they revised their diagnosis to mesothelioma. The court found that when the expert for the claimant suggested molecular testing, he was seeking to explore the possibilities of resolving the diagnosis, while the court was troubled by the defedant's expert's view that it was not necessary to go on to consider molecular testing when the results of the immunohistology were available. 

David McNally v Gentoo Group Limited Neutral Citation Number [2026] EWHC 750 (KB)

Working with expert witnesses... is a new monthly article series. The series takes a look at the role of expert witnesses in a range of sectors from the perspective of the legal and other professionals who work with them. If you are interested in being featured in the series, you can contact us at policy@ewi.org.uk. 

In the second article in the series, Thomas Hamilton, a Senior Solicitor at Thompsons Solicitors, discusses his experience of working with expert witnesses in serious injury claims. 

The Civil Justice Council (‘CJC’) has published an Interim Report and Consultation on the Use of AI for preparing court documents. The focus of the consultation paper is whether court rules are required to regulate the use of AI by legal representatives. However, the consultation also examines whether the use of AI by experts should be subject to court rules, with specific proposals set out in Part 8 of the consultation document.

The claimant alleged that the second defendant, a Spanish racing driver, had repudiated a binding agreement under which he was contracted to drive for the claimants’ IndyCar team for the 2024, 2025 and 2026 racing seasons. The judge found some of the expert witnesses to be impressive and independent, while the expert evidence of others was unimpressive and disappointing.  

The defendant was contracted, during the Covid lockdowns, to source and supply sterile gowns, which the claimant subsequently asserted were not contractually compliant. Issues for expert evidence included the sterility of the gowns and whether the claimant could have mitigated the loss by resale.

The Claimants brought an action against the Defendant, the Secretary of State for Education, for negligence and misfeasance in public office, relating to the actions of the Skills Funding Agency (‘SFA’), for which the Defendant is responsible. The Claimants alleged that the acts of SFA prevented them from selling their business for around £27 million, plus a lost chance of converting around £10 million in rollover loan notes.

The Defendant issued an application to revoke the Claimants’ permission to rely upon their forensic accounting expert evidence, because it had become clear that one of the Claimants, who was a trained accountant, had had significant secret involvement in the preparation of the expert’s report and the Joint Statement.

The Claimant alleged that an accident five years earlier was the cause of the amputation of his lower leg. The judge criticised the Claimant’s orthopaedic expert, Professor H, for demonstrating at times a rather ‘loose approach’ to his expert evidence and a closed mindedness towards his evidence.