Most judicial criticism  of experts arises from either ignorance of the basic rules of expert evidence or because experts who understand and have tried to apply the rules have slipped off the straight and narrow  path, usually from a desire to help their clients.

So while judges comments are often direct and colourful they generally accept the understandable human urge to help and temper their criticism accordingly. However, from time to time experts  don’t just slip off the path they deliberately choose to jump off the cliff in pursuit of their client’s interests.

In Marples & Ors v Secretary of State for Education compensation was claimed from the Skills Funding Agency, the amount of which depended on expert evidence from a  forensic accountant.  Concerns were initially raised about involvement of one of the claimant’s, himself an accountant, in the production of a joint statement. Letters, witness statements and some document disclosure followed and it appears that over the course of what must have been a somewhat eventful hearing, to put it mildly, it became clear that the client had been heavily involved in the production of the joint statement.

We recommend that all experts read the judgement which culminated with the following conclusion from the judge;

1. This is a deliberate, cynical, planned breach of the rules relating to the preparation of expert evidence. It is a very serious breach.
2. The product of the expert in the shape of his report and the joint report are not independent. They do not represent his objective and unbiased opinion. They represent advocacy on behalf of the claimants, using words put in the expert’s mouth by the claimant. They represent what the claimant wants the expert to say and are not the expert’s opinion at all. This includes contributions on matters on which the expert avowedly knows nothing (such as Star Capital).
3. I have no confidence in this expert’s ability to act in accordance with his obligations as an expert witness.

I accordingly refuse the claimants permission to rely upon the evidence and reports of the expert.

Not surprisingly given this, and other issues with the factual evidence, the claim was dismissed.

We suspect that no amount of rules or  training can prevent the very few experts and clients who are determined to break the rules but for everyone else we would remind you that anyone considering acting as an expert needs to understand the role. That means knowing  the rules that apply to expert evidence and how to avoid the pitfalls that can lead to a difficult time in court and potentially public criticism from a Judge.

The Academy’s training programme is designed to help already  skilled professionals through the basic foundations to a mock cross-examination to ensure that they are fully prepared. Our training courses are primarily delivered online but we run some face to face courses  in London and Hong Kong. We can also run in-house training for larger consultancies, please contact us for details.