Lay Witness with expert knowledge

[2008] EWHC 2220 (TCC) TEDR Volume 13 Issue 3

The Facts

This review concerns the status of the evidence of a Mr Taylor at the final trial of the extensive litigation arising out of the construction of the “new” Wembley Stadium.

Mr Taylor gave his evidence by way of witness statement of fact rather than as an Expert. Upon service, the Claimant objected to its admissibility on the basis that it contained opinion, comment, argument and expert evidence. Little more was said about the issue until the witness had given evidence. The Trial Judge was persuaded by both parties to deal with the issue of admissibility in his final judgment rather than during the trial.

The other issues (of which there were many) need not concern us here.

The Issues

To what extent can a witness of fact give evidence which contains opinion, comment, argument and expert evidence?

The Decision

Mr Taylor was a factual witness. He had no experience of giving expert evidence and no knowledge of the requirements of so doing. He was not independent of the Defendant, having worked for a company within their group for the last 11 years. There was no permission for his evidence under CPR 35. However, he was a highly qualified and experienced engineer who worked on the project.

Accordingly, the Trial Judge treated Mr Taylor’s evidence as that of a factual witness who:

a. Possessed considerable engineering expertise; and

b. Had personal knowledge of the roof design and erection engineering decisions during part of the construction.

The Court was referred to Lusty v Finsbury Securities Ltd (1991) 58 BLR 66 where the Court of Appeal held that an architect suing for fees could give opinion evidence as to the value of his work.

Further, in DN v LB Greenwich [2004] EWCA Civ 1659, the Court of Appeal considered the admissibility of such evidence in a professional negligence action. It was thought common that the alleged negligent professional would seek to give evidence as to why his conduct did not fall below the standard of care reasonably to be expected of him, perhaps by reference to literature. Such evidence was certainly admissible. Whilst it may lack the objectivity of an independent expert, that went to the cogency of the evidence and not its admissibility.

Accordingly, the Judge held that in construction litigation, an engineer giving factual evidence may also proffer:

a. Statements of opinion which are reasonably related to the facts within his knowledge; and

b. Relevant comments based upon his own experience.

Given the evidence was already before the Court, the Judge dealt with the issue on this basis and discounted anything within his evidence that did not fall within the above description.

Had the matter been considered pre-trial, the witness statement could have been re-drafted to remove any offending material.

The Judge noted that Mr Taylor gave his oral evidence in a fair and candid manner, despite his connection with the Defendants. He did, however, criticise the presentation of his written evidence as having been “unduly influenced” in its drafting by the Defendant lawyers.

Comment

Importantly, the lay witness who possesses relevant expertise can use it within his evidence. However, he may be subject to criticism for lack of objectivity.

If you are asked to give such evidence, take as much care with how the statement is drafted as you would with an expert report to help persuade the Judge (even before he hears from you) of your objectivity regardless of the different status.