The Honourable Justice Fraser uses speech to warn Experts of the dangers of not complying with their duties

A week on, and I am still buzzing from our first face-to-face event post pandemic. The Sir Michael Davis Lecture and networking evening was held on the 23rd of March with 40 Expert Witnesses in attendance. And whilst we have been delivering a range of webinars and conference online over the last two years, it was an absolute pleasure to have the opportunity to meet members; especially those that I had previously only ever met online.

Our speaker for the evening was the Honourable Justice Peter Fraser, a judge who has not been shy in highlighting the failures of Expert Witnesses in recent years and who is well known for his work as the managing judge of the Post Office Horizon litigation.

He started by stating that the rules governing expert evidence are really very clear. In comparison to our US counterparts who can be seen as a secondary or even a primary advocate, experts acting in the UK must be impartial and remember that their duty is to the court.

Taking us back to basics, Judge Fraser took a moment to highlight The Ikarian Reefer and the points made about the duties of an Expert Witness, noting in particular that: “An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts that could detract from his concluded opinion”. Judge Fraser said it was remarkable how often experts omitted all the material facts their opinion was based on.

He then took us through a few cases.

Bank of Ireland v Watts Group plc [2017] EWHC 1667 (TCC)

In this case, the Expert was found not to be independent as he acted solely for the bank. The result of this was that his evidence was inadmissible.

The expert was also found to be misleading the Court by omitting key words when quoting from the RICS guidance.

The judgment is worth reading and includes the wonderful conclusion from the judge who noted that “The duties of an independent expert are set out in the well-known passages of the judgment in the Ikarian Reefer. For the reasons set out above, Mr Vosser did not comply with those duties and I was not confident that he was aware of them or had had them explained. For him, it might be said that The Ikarian Reefer was a ship that passed in the night.”

ICI v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC)

The case of ICI v Merit Merrell Technology Ltd was a stark reminder in the view of our speaker that the principles for the delivery of Expert Evidence must be adhered to by both the Expert Witness and those that instruct them.

In his judgement he had taken the opportunity to emphasise the principles set out in The Ikarian Reefer:

“1. Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number.

2. Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court.

3. Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent.

4. The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way.

5. Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert's opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise.

6. No expert should allow the necessary adherence to the principles in The Ikarian Reefer to be loosened.”

Dana UK Axle Ltd v Freudenberg GMBH [2021] EWHC 1413 (TCC)

In this case it became evident that there had been a range of failings from the Expert Witness including asking for assistance from the legal team in drafting the joint statement, attending site visits without their counterpart, and letting the client directly influence their opinions.

As a result, the Judge decided that the Expert evidence could not be relied upon.

And this was a point that the Honourable Justice Fraser wanted to emphasise. That if an Expert does not comply with their duties, Expert Evidence will not be allowed, and they leave themselves open to Judicial criticism.

In taking questions from the floor, he stated that of the cases when an Expert is not following their duties, only 10-20% were due to naivety and inexperience. And whilst his perception was that the courts were experiencing fewer ‘hired guns’ there were still a lot of experts out there who do not understand their duties.

He was asked whether some of the blame should be apportioned to the legal advisers for leaning on the Expert Witness. He responded that whilst Legal Advisers should not be asking, it was incumbent on the Expert Witness not to give into that pressure.

Referring back to the case where the expert had involved the legal team in the drafting of a Joint Statement, Judge Fraser highlighted that a judge can spot ‘a mile off’ when a legal team have been involved because of the language used. He concluded by stressing that the Joint Statement is between the Experts and that legal teams should not be involved in any way.