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Recent judgment highlights Expert Witness failings
Simon Berney-Edwards
/ Categories: Industry News

Recent judgment highlights Expert Witness failings

A recent judgment by The Honourable Mr Justice Fraser highlights the numerous failings of an Expert.


The recent judgment in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) once again highlights the importance of those putting themselves forward as Expert Witnesses in developing a fundamental understanding of their role and the regulations governing their work.


The Honourable Justice Fraser highlights 8 key failings of the Expert’s performance:


  1. Embellishing and exagerrating criticisms
  2. Introducing new concepts or issues in the witness box.
  3. Under cross examination, relying on material that had no relevance to the issues under consideration in the trial. 
  4. Changing his agreement with, and reliance upon, the work of his associate whose work formed an Appendix of his report.
  5. A lack of objectivity.
  6. Constantly seeking to advance the claimants' case at the expense of expert objectivity.
  7. Introducing a concept into his cross-examination which was not an issue for the court.
  8. Taking a position on a contested issue of fact and did not change or alter his opinion in any respect after the evidence had been given.


In the follow up judgement related to costs issued on 25th May 2021 The Honourable Justice Fraser added further commentary on the well documented role of the Expert Witness.


He stated:


“There is a worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties. Practice Direction 35 makes the position very clear:
2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”


EWI Chief Executive Officer, Simon Berney-Edwards, said:

“This judgment provides yet another stark reminder of the importance of people putting themselves forward as an Expert Witness understanding their role and the duties to the court. Judges have an important role to play in highlighting poor practice and feedback such as this can ruin your reputation. Although the judge did not believe on this occasion that the actions of the Expert would justify an award of indemnity costs, it does highlight the implications for those Experts who do not take their duties seriously." 


The full judgment and supporting resources can be accessed via the links below.

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