Experts  often have to rely on their clients and instructing solicitors to provide them with the material they need to form opinion. That evidence may be documents, data from an IT system or audio or video recordings and if the evidence you are given is incomplete or distorted in some way your opinions may turn out to be wrong.

 

The Chief Constable of Northamptonshire Police has recently been found in contempt of court in a case that acts a timely warning to experts of the need to check and check again that you really have all the evidence you need.

 

A brief summary of the case is that a woman was arrested and charged by police officers but the case against her was then dropped. She was unhappy with the way she had been treated during the arrest and claimed that property had been taken. Cue a series of court cases escalating through the courts and requests under GDPR for access to the video recordings from the police officers’ body worn cameras. Complaints to the ICO were upheld and some footage provided but not all of it and Northants police claimed on multiple occasions that  they had ‘performed standard searches’, had provided all the available material and that any remaining footage had been deleted without any clear explanation of why.

 

A few days before a final hearing at the Court of Appeal it transpired that when the audit logs for the relevant officers were checked and other, entirely obvious but presumably not ‘standard for Northants police’ searches were carried out the missing video footage did in fact exist, had not been deleted and could be provided without any difficulty.

 

The lesson for experts is that when a client says they’ve looked for and not found the evidence you expect to see you should treat them like a teenager who claims not to be able to find a missing pair of trainers. Get them to tell you exactly and in annoying detail where they’ve looked, what searches they’ve performed and if humanly possible make them show you what they’ve done. If there’s  really nothing there then there’s no problem, but if you emerge from under your client’s metaphorical bed with a pair of smelly trainers it really is better to know sooner rather than later!

 

As well as specialist professional skills and qualifications experts need the ability to communicate clearly both in writing and verbally, especially in court. While many consultants and professionals have those skills the legal environment is very different from ‘normal’ professional practice. Anyone considering acting as an expert needs to understand that environment,  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.

Members receive a 25% discount on training, if you would like to join the Academy please complete our Pre-Application Questionnaire and we will help you identify the appropriate membership level for you. Other benefits of membership include guidance and advice on being an expert, regular member meetings to discuss issues affecting experts and access to specialised PI insurance.

The High Court ruling against Danish tax authority SKAT in a £1.4 billion dividend tax fraud case has been widely reported, not least because the judge concluded that SKAT’s controls on the transactions involved were so flimsy as to represent the equivalent of a ‘help yourself’ sign outside a bank.

 

Less attention has been given to the judge’s criticisms of the experts who appeared on behalf of the many parties involved. As he put it “ All three experts, in differing ways, did not provide properly balanced written reports”.

 

Perhaps the clearest example was SKAT’s expert “whose written work was argument rather than expert evidence” showing the dangers of working closely with a client and legal team on complex, long-running litigation. The judge concluded that “he finds it difficult not to think and express himself as an advocate for SKAT’s position. He has, I think, lost detachment from the partisan interests of SKAT” and was unable perhaps to hear any ‘evil’ in his client’s case.

 

Somewhat less concerning was an expert whose testimony was careful but tended to obscure his views and maximise differences with other experts that were not a pronounced as appeared at first glance.  As the judge observed, “That exposed him to a cross-examination that should have been largely unnecessary to confirm the extent to which, in substance, he agrees with a range of matters on which SKAT relied. “ Fortunately he appears to have dealt with that cross-examination impressively, fairly (with balance), and with an obvious depth of thought and expertise. A better approach might have been to write a report that allowed the parties to see more clearly.

 

And finally, the third expert’s generally much better approach (once his reports had been edited to remove contentious factual matters that should not have been there!) and thoughtful and fair answers to questions were undermined by his taking a view in the witness box that he had not expressed in writing.  The judge concluded that his interpretation of a key terminology expressed in oral evidence “had not been his view at any material time. It was inconsistent with the views he had expressed in writing, including in his primary expert report in these proceedings, to which he had to proffer alterations when called to give his oral evidence to advance the different view. “  While the case did not turn on this point the judge made it clear that speaking out in this way, because his written views in fact assisted the other side, was not acceptable and did the expert no credit.

 

The message to experts should not be a surprise, no client’s case is perfect and there are times when your views will not support their case. When that happens it is critical that you make sure your client’s hear you, that the court can see hat your views really area and that when you speak you keep your duty of independence firmly in mind.

Anyone considering acting as an expert needs to understand that environment,  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.

The Criminal Procedure Rules Committee have issued a new consolidated set of the Criminal Procedure Rules which came into force on 6^th October 2025.

The Criminal Procedure Rules 2025 replaces the Criminal Procedure Rules 2020 and incorporates the 9 sets of amendments made since the 2020 rules were published. The Committee has also published a guide to the new Rules. criminal-procedure-rules-2025.pdf

In addition, the Criminal Procedure Rules Committee have just published the. Fourth Amendment to the Criminal Practice Directions 2023 – November 2025 – Courts and Tribunals Judiciary. The changes, some of which will impact on experts in Chapter 7, come into force on 18^th November 2025.

The amendments:

1. require the disclosure in an expert report of any authoritative advice or warning relevant to the content of the report;
2. require the disclosure in an expert report of any past adverse finding or disciplinary proceeding, even if since resolved; and
3. ensure the compatibility of the declarations of compliance required by (i) the Criminal Practice Directions, and (ii) the Forensic Science Regulator’s statutory code of practice.

Updated Expert Declaration
In addition to the changes outlined above there are also changes that need to be made to the Expert’s Declaration, full details are on the Academy website.

 

Don’t forget to update any templates you have that are effected by the changes and to satisfy yourself that any report issued after 18^th November 2025 complies with the new requirements.

The Academy’s GDPR guidance turned 5 this year so we thought it was a good time to review it in the light of a better understanding of how GDPR has been implemented in practice. One of the challenges of developing guidance for our expert members is they cover a wide range of specialisms and as a result deal with widely differing types of personal information. The material needed by a medical or psychiatric expert to assess a personal injury is clearly very different from that used by an accountant to assess the value of a business.

In addition while some experts work within large consulting firms many are micro-businesses who don’t have the benefit of in-house egal advice but still have to negotiate the (sometimes onerous)  privacy responsibilities passed down to them by instructing solicitors.

 

Our guidance is designed to help members consider for themselves what aspects of their work are covered by GDPR in a structured way and is linked to a model privacy policy that can be used in a ‘pick and mix’ way to include only those sections that are relevant.  We recommend micro-business or individual expert read the ICO’s small business guide alongside our guidance and remind you that you are almost certainly required to register and pay the required annual fee.

 

The Academy  provides a range of practical advice and guidance on other topics such as conficts, Joint Statements, privilege and so on which is available at no charge to members in the Academy’s Knowledge Hub.

Members can also call our Technical Helpline for help and advice on ethical and practical issues from dealing with instructions to getting paid.

If you would like to join the Academy please complete our Pre-Application Questionnaire and we’ll help you identify the appropriate membership level for you. Other benefits of membership regular member meetings to discuss issues affecting experts and access to specialised PI insurance.

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.

The Expert and Dispute Resolver, affectionately know as TEDR, is the Journal of the Academy of Experts. Members of the Academy will know that it was edited in the past by the late Michael Cohen who founded the Academy and who sadly passed away last year.  We’re grateful to Ben Johnson who has stepped into Michael’s shoes to edit the most recent edition which has been dropping into members’ letter boxes over the last few weeks.

With a range of topics covered – including jewellery valuation, boundary disputes, expert credibility, use of AI in the courts, the results of our expert fee survey and the “magic” formula for  a reasoned expert analysis – there’s something to inform or stimulate debate for any expert. If you’re  a member and have yet to receive your copy please contact us.

We’re already working on plans for the next edition of TEDR and would welcome contributions in the form of articles, book or podcast reviews or suggestions for topics to cover.  If you have ideas for interesting articles don’t keep them to yourself, please get in touch.

If you can’t wait till the next edition of TEDR for news and expert related discussions then you’ll find regular updates on LinkedIn and we publish a monthly email newsletter, just visit the Academy website to sign up.

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.

The Academy held its Annual General Meeting on 14 October. As with most similar organisations, this is an important element of the Academy’s governance. Several decisions are reserved to the membership in general meeting. These include the appointment of new members of council, the election of officers and the adoption of accounts.

The following officers were elected:

• Chair: William Hooper
• Deputy Chair: Nigel Young
• Vice Chair: Mike Allen (appointed)
• Secretary: Stuart Broom
• Treasurer: Joe Skilton.

The following were elected to join the Council:

• David Cannell
• Helen Gregory
• Derek Nelson
• Syed Turab

Departing members of Council who stood down were thanked for their contributions.

The full Council meets twice a year, in June and November, and the Executive Committee once a month.

If you would like to help with the running of the Academy or stand for election to Council please contact us, volunteers are always welcome!

 

 

Experts rightly pride themselves on their knowledge and understanding of their specialist area but its fair to say that judge’s are sometimes less than impressed when expert evidence takes on a life of its own.

They particularly dislike expert evidence on subjects that really don’t require any expertise.  Glenfiddich Wind v Doranell Windfarm  was a dispute about wind power generation where two experts were asked to interpret and describe the UK’s Balancing and Settlement Code (BSC) which governs how energy generators are paid.  The problem the judge saw was that “their descriptions were not matters upon which they possessed any special knowledge or experience, and had no greater value than had they been expressed by someone plucked  at random from the street to whom the BSC processes had been described.” They had in effect, although knowledgeable and balanced in their approach, become conscripts in an expert arms race which had  grossly and unnecessarily complicated the presentation and consideration of the merits of the case

Even when expertise is genuinely required it can sometimes expand beyond sensible boundaries. In Energygen & Hyundai v HD Korea Shipbuilding   there was a need to know the correct translation of the phrase “sah-up-booh-moon” but as the judge explained, “I mean no disrespect to either expert when I observe that I doubt that quite so much academic firepower was necessary to resolve this very narrow issue. “

But in a different twist on the theme,  factual witnesses can sometimes over-emphasise the need for expertise.  DRPS Property  v Residential Marine was a dispute over a small parcel of land on the Medway that may or may not have existed at a particular point in time.

One of the factual witnesses explained, which the judge accepted, that she was not an expert on maps or plans. However, as he put it  the refrain that she was ‘not an expert’ “was trotted out any time that there was anything difficult or contrary to her case in any of the maps and plans, no matter how obvious the point was on the face of the document and how little expertise was needed to grasp the point”

So as so often, the rule is that witnesses, whether expert or not, should stick to what they know but avoid hiding either in denials of the obvious or in thickets of irrelevant material, however well informed.

Many disputes involve insurers either as funders of a claim or defences but also as participants in their own right and most experts will have dealt with insurance companies at some point in their expert careers. There are also often disputes about the meaning of insurance cover which involve the use of experts with experience in insurance and how it applies to industries as diverse as shipping, personal injury  and  consumer goods.

As the professional society and accrediting body for expert witnesses of all disciplines the Academy of Experts is therefore delighted to announce a new relationship with FOIL, The Forum of Insurance Lawyers.  FOIL is the professional membership organisation representing those engaged in the defence of insurance-related claims. Its members act for insurers, self-insured companies and all authorities in the public and private sectors.

 

Experts can join FOIL as a Trade & Industry Partner to gain access to specialist information on the insurance industry and attend networking and educational events. Our relationship means Academy members receive a discount of 50% on FOIL membership.  Contact FOIL (https://www.foil.org.uk/contact-us/) quoting your Academy membership number to take advantage of this offer.

 

FOIL members can access many of  the Academy’s services such as ExpertSearch to find suitable experts and benefit from our detailed guidance on the use of experts. Contact the Academy for further information

 

Laurence Besemer FCII, CEO – FOIL said  “Nicola Cohen, CEO of The Academy of Experts, and I have been working for some time to agree on a Memorandum of Understanding between our organisations and I’m now very pleased to announce that terms have been agreed and an MoU signed.

FOIL and TAE both wish to promote the highest possible professional standards in their respective areas of work and the benefits of working in partnership in all appropriate areas and activities. I look forward to welcoming TAE members into FOIL as Trade and Industry Partners.”

Nicola commented ”The Academy of Experts is delighted to have signed an MoU with FOIL and is looking forward to working together. The new MoU recognises the importance of the insurance sector for expert witnesses.”

 

The Academy looks forward to working with FOIL  to maintain the high standards of professionalism the insurance industry expects.