Summary
The Claimant brought a claim for compensiation in the UK after he was hit by an uninsured driver while on holiday in Mallorca and suffered major injuries, including severe brain injuries. The court found the evidence of several of the experts to be unsatisfactory leading the judge to preface his assessment of the expert witnesses with the observation that “[t]he court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts.”
Learning points
Learning points for experts:
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Ensure that you use the correct declarations and statement of truth. Consider using report templates, such as the EWI’s, which incorporates the correct declarations and statements.
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Your opinion must be your own opinion and not copied from another expert, such as a colleague in your firm. If you have included material from a colleague’s report, you must acknowledge having done so and make clear that the opinion expressed is entirely consistent with your own genuine and honest opinion.
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Clearly set out the sources you used to prepare your report and cite quotations from other material.
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Seek to answers the questions put to you directly and avoid unnecessary digressions.
Learning points for instructing parties:
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Check that the reports of the experts acting for you comply with the relevant rules and regulations including any required declarations and statements. This is especially important if you have not instructed the expert before or the expert normally acts in a different jurisdiction.
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Consider using a compliance checklist which must be completed before the report is submitted.
Learning points for lawyers when acting as an expert witness:
The case
The Claimant was hit by an uninsured driver while on holiday in Mallorca suffering major injuries, including severe brain injuries, which have impacted almost all aspects of his life. The Claimant brought his claim for compensation in the UK, rather than Spain, against the UK Motor Insurers’ Bureau (‘MIB’) rather than the driver. The MIB stands in for the Spanish compensation fund which compensates injured parties in Spain when the driver is uninsured.
A distinctive feature of the case was that, although tried in London, the High Court was required to apply Spanish law and principles of compensation.
The expert evidence
Both parties adduced expert evidence from:
The court found the evidence of several of the experts to be unsatisfactory leading the judge to preface his assessment of the expert witnesses with the observation that “[t]he court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts.”
The accident reconstruction experts
Ms E gave expert evidence on accident reconstruction for the Claimant, and Mr S for the Defendant. They had each provided an expert report and together prepared a joint statement.
The evidence of Ms E
The judge made every allowance for the fact that Ms E gave evidence assisted by an interpreter and it was her first time giving evidence in a UK court. Nevertheless, the judge found Ms E’s evidence to be unsatisfactory on several key points:
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Her original report included errors.
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She fundamentally changed her position about the speed of the vehicle from initial report to joint statement.
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She did not answer questions directly and often digressed unhelpfully. For example, the judge described her evidence on the impossibility of the injuries to the Claimant being consistent with his lying on the ground and being dragged as “unconvincing and in defiance not only of expert medical opinion but simple precepts of logic and common sense.”
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It took her far to long to make reasonable concessions which she only did when forced to do so. For example, although it was obvious to everyone in court that one plausible explanation of the gap in the car’s bonnet alignment in one photo was that the bonnet did not fit well on what was a 17 year old car, it took repeating questioning and ultimately a question from the judge before Ms E accepted this.
The judge found that in critical respects Ms E’s evidence was not reliable, consistent or convincing.
The evidence of Mr S
The judge found Mr S found to be careful and measured in his evidence, always at pains to alert the court to the limits of his evidence and expertise. He made concessions when he needed to because he plainly saw this as right given the limits of the evidence or his expertise. He was not stubbornly dogmatic in his views. For example, he accepted that he should have addressed the malignment of the bonnet in his report and does not or does not adequately.
The judge accepted the submission that, while Ms E’s evidence was confused and inconsistent, Mr S’s was open and clearly trying to do his best to help the court. However, he noted that this did not mean he adopted Mr S’s evidence in its entirely and rejected Ms E’s, noting that the court is necessarily more nuanced and it would be simplistic to simply state that Mr S’s evidence is preferred to Ms E’s on all points.
The Spanish law experts
Ms A gave evidence on Spanish law for the Claimant and Professor C for the Defendant.
The evidence of Ms A
Ms A is a Spanish lawyer with her own firm specialising in personal injury and insurance. She said that she had been preparing reports in these types of cases for 15 years and that she had appeared in four English High Court cases over 10 years. The judge noted that she had in fact appeared in only two cases, neither of which was in the High Court but rather the court below.
The judge found Ms A to be in certain vital respects an unsatisfactory witness with the root of her difficulty being that she approached the case at times more as an advocate for her instructing party than as an independent, arms-length expert.
The judge noted that Ms A did not mention in her statement of truth a recognition of her Part 35 duties to the court.
She also failed to mention in her reports (from 2023 and 2024) that she had relied on a separate report produced by Ms R (in 2022), an associate lawyer in her firm, as a source for her own report. Her credibility was adversely impacted by her suggestion, in the face of persistent and legitimate questioning, that she had not copied Ms R’s report. The judge noted that there we 28 identical (or almost identical) passages in Ms R’s and Ms A’s reports. Ms A initially argued that she and her colleague work closely together and use very similar language, before suggesting that there was a “central database” that lawyers in the office use to explain common principles. The judge noted that this explanation did not explain identical passages specifically about this case.
After initially denying the copying and stating that it would be wrong to do so, Ms A finally conceded that she “might” have copied passages from Ms R’s report.
The judge noted that Ms A’s explanation that she did not copy was obviously unconvincing and not true and her final concession was only forced through persistent questioning. She had, therefore, not complied with Part 35 by not citing Ms R’s report as a source for her report.
The judge noted that these concerns were added to by Ms A’s surprising approach to other issues which also affected the court’s assessment of her credibility. In response to questioning, she stated that a Spanish court would not take alcohol consumed by a pedestrian into account as a “relevant factor”. When directed to authorities where the Spanish court appeared to take this into account, she changed her account to state that, while alcohol was a relevant factor, it was one out of many.
The court also had concerns about her balance. Although stating that she thought she had looked for such cases, not one of the Spanish authorities she provided to the court related to cases where the pedestrian had a higher fault contribution than the driver. As Professor C had found such cases, this led the court to “anxiously consider [Ms A’s] partiality”.
Ms A also mentioned for the first time in the witness box a judgment in Spain that she stated applied an adjustment of the Baremo (the compulsory compensation system used for the calculation of damages suffered by victims of road traffic accidents in Spain) for foreign residents. She never provided this judgment to the court. The court noted that this was very unsatisfactory, made more so by her assertion that she purported to introduce it now in oral evidence, which was entirely contrary to principle and good practice. Ms A also stated that it is possible for health care or rehabilitation benefits to result in a departure from the strictures of the Baremo, without providing any case where this had happened.
The judge noted that “[Ms A’s] evidence overall was unhelpful in material respects, as was her approach and occasional evasiveness. It is enough to say that [Ms A] was an unimpressive and unreliable witness on several critical topics.”
The evidence of Professor C
The judge noted that Professor C a very engaging, fluent and articulate witness. He detected no sense of partiality in Professor C’s evidence and was satisfied that he was attempting to assist the court at all times. While the judge noted that he found Professor C’s evidence straightforward, directly engaging with the question, aware of his limitations and balanced, he noted that this did not mean that he accepted his evidence in its entirety.
The judge concluded that the “vital point in the contrast between [Ms A and Professor P] is not so much that [Ms A] does not explicitly state in her report that she is aware of her Part 35 duties, significant though that is, it is that her report and evidence is not in critical respects Part 35-compliant. That is a far more serious matter. She did not take as a starting-point an overriding duty to the court rather than her instructing party. This case was not short of advocates; it needed impartial expert advice. [Professor C] provided it; largely, [Ms A] did not.”
The medico-legal experts
Dr D was instructed by the Claimant, and Dr P by the Defendant, to give medico-legal evidence. The medico-legal experts play a distinctive role in Spanish personal injury proceedings. They assist the court on how the medical evidence accords with the sequelae and the categories of compensation under the Baremo system. Their role is authorised under the Baremo itself (article 37).
The evidence of Dr D
Dr D is Doctor of Medicine and a specialist in neurology and neurophysiology. Dr D could not recall whether he had seen all the medical reports or joint statements of the Defendant’s medical experts, which is significant under Spanish law because it is the task of the medico-legal expert to assess the medical evidence in providing assistance to the court. Consequently, he confined himself to considering the claimant’s medical experts and at no point referred the Defendant’s medical expert evidence. This resulted in opinions and recommendations based on an incomplete evidential record and a consequent imbalance.
He also, in breach of Part 35 requirements, replicated a significant passage of script (more than two pages) from an article without attributing it to the source. Instead of accepting his error, he compounded it by claiming that he had cited the source in a footnote, which was untrue. Dr D also did not answer questions at times and offered an unconvincing opinion when awarding points for one of the Baremo categories, hearing loss.
The judge found that these oversights, while not invalidating Dr D’s evidence, reduced the weight which could be properly placed upon it.
The evidence of Dr P
Doctor P is a medical specialist in bodily injury evaluation and member of the Barcelona Medical Association. He is a very experienced expert and is in court very frequently assisting judges with his expertise.
The judge found that he was at points unbalanced in his conclusions, not motivated by a hostile attitude towards the claimant, but rather an insistent adherence to his opinion being right. On occasion he was reluctant to accept the conclusions of other experts and at other times he was unrealistic, such as his suggestion that the Claimant could in the future be employed as a solider. While such matters reduced the weight the court could place on Dr P’s evidence, on other issues, his evidence made good sense and the court was able to accept it.
The judge concluded that of the two experts, he found Dr P to be overall more reliable and helpful.