Most discussion (and criticism) of experts revolves around issues where experts disagree, often in ways that are pivotal to a case.  But there are many cases that go unnoticed where experts agree on most, if not all, of the important issues, which for the most part is what you would expect from professional experts given the same set of facts and questions.

 

The value of agreed evidence was highlighted in a recent professional negligence case involving a very unpleasant spinal condition called Cauda Equina.  Working through all the issues  required evidence from experts in GP practice , neurosurgery, urology, psychiatry, neurorehabilitation, physiotherapy and occupational therapy. It’s evident from the judgement that most of the experts involved were experienced  professionals and the judge was greatly assisted by the extent to which evidence was agreed as shown by these quotes;

 

“I found both to be clear and helpful in their evidence and each engaged with the questions they were asked and sought to assist the Court with their answers. Each also made appropriate concessions. Most importantly, as they stated in the Joint Statement dated 31 July 2024, they agree all of the most important points.”

“I accept all of this agreed expert evidence, as does each of the parties. “

“Neither expert was cross examined for long as they are essentially agreed on all significant points. Both gave their evidence in a clear way and made appropriate concessions. I accept their evidence. “

“I accept all of the agreed expert evidence.”

 

“Both gave oral evidence at trial, although at no great length given the extent of the agreement between them as to the most important matters of urology in the case. I found both to be impressive witnesses, giving clear and direct answers to questions with helpful explanations where necessary. Each also made appropriate concessions. “

 

In contrast in a complex case involving bribery and corruption relating to oil exploration (Aaabar v Gemcore) an expert in Dutch law appears to have viewed the idea of agreeing with another expert as problematic. The issue concerned involved whether disclosure of certain materials would result in a criminal prosecution in the Netherlands. In his first report the expert said that prosecution “may” result but following a meeting with the other expert, who disagreed, firmed up his position to complete certainty but was unable to provide any explanation of why his position had changed.

 

As the judge commented while “it is understandable (as occurs with lawyers) to firm up one’s views after further analysis and consideration, experts are instructed to give their independent expert opinion, and are under a professional obligation to explain and justify any change of opinion. In this context it is somewhat strange that views expressed without considering another’s expert report should then be expressed in very much stronger terms after reading the report of another expert who expresses a contrary view with which the first expert disagrees.” His view was that the unexplained shift in ground called into question the reliability of the expert’s evidence.

The message for experts is to remember that your opposite number is not an enemy and that you should both, in most cases, hold the same opinions if presented with the same facts and questions. There may be good reasons for disagreement but disagreeing for the sake of it or to support your client’s case does not help the court nor in the long run you or your client.

 

For advice and guidance on meetings of experts and agreed statements of expert evidence check out the guidance in the Academy’s Knowledge Hub.