A recent case about a snowmobile accident (Cannestra v McLaren Automotive Events) has been much commented on because the Claimant seems to have constructed a version of events somewhat at odds with his comments at the time that ”it was all his own fault” . But as the judge sat through the expert evidence from both sides he could have been forgiven for thinking he was trapped in a story with an unremittingly downward plot, like Hamlet or Kafka’s Metamorphosis.

At the top end of the scale was an expert whose report was “thoughtful and well researched. He gave evidence openly and flexibly, as an expert should. “  but the judge commented with some puzzlement at the omission, presumably for tactical reasons, of an opinion on a technical key issue in the case.

Stepping down a level an expert who was clearly doing his best to assist the Court and was “precise, logical and well prepared” was undermined by a tendency to focus on his party’s case and ignore the other side’s. An issue that in other circumstances might have drawn more substantive criticism.

Aa third expert managed to take things down another notch.  The evidence of a helpful and straight forward expert was  “deeply faulted by inaccurate and unlikely assumptions” not least that his assumption of maximum acceleration would have led to a completely different outcome than the accident that in fact took place.

But the nadir of the expert evidence was reached by an expert who appears to have taken an extraordinarily combative approach. The judge concluded he was “a partial witness who acted as an advocate for the Defendant’s case. He not only ignored the Claimant’s evidence and adopted the guides’ evidence, he positively sought to persuade the Court to find facts in the Defendant’s favour. His report was littered with errors and illogicality. His research on modes of operation of SMs was flimsy and unimpressive. He strayed into accident reconstruction. He made things up in the witness box and he estimated facts when the actual facts were staring him in the face.   I am unable to rely on the vast majority of his evidence. “.

Unfortunately experts can’t generally rely on their opposite numbers drawing judicial fire quite so effectively. So it’s critical to remember that where there are two factual versions of events an expert should consider both versions and any assumptions must be realistic and checked for illogical consequences.

For guidance on best practice such the Model Form of Expert’s Report and Guidance Notes on Meetings of Experts, Contingency Fees & Remote Evidence see the Academy’s Knowledge Hub.

Our picture is from Car and Driver, we also recommend experts take proper care when riding snowmobiles!

Given that experts are always aware they may be criticised by a judge it’s understandable they might feel a little smug or a frisson of schadenfreude to know that from time to time judges and tribunals are themselves criticised quite severely for their approach to expert evidence.

In an appeal in relation to Disability Living Allowance that had clearly dragged on for many years the Social Security Commissioner concluded that “ The main reason for allowing this appeal has occurred in too many other appeals.  It is wrong to dismiss evidence of a medical practitioner from one party as not “independent” without indicating why while at the same time accepting medical evidence from the other party as “independent”.  He noted that the tribunal had “dismissed without consideration the evidence of a consultant specialist at a major British hospital who specialises in precisely the problem from which the appellant is suffering, and who is in addition fully recognised as an expert medical witness.  That is plainly absurd.”

Similar criticism applied in a completely different field when a First Tier Tribunal include various additional items in an order for remediation of a building fire prevention measures under the Building Safety Act 2022 (Monier Road v Blomfield). In this case the FTT did not set out its reasons, or any professional guidance or previous cases to support the new items or give witnesses or experts on either side the chance to consider them.  As the Upper Tribunal commented “We really have no idea why the panel’s expertise led it to contrary conclusions; nor have the parties. Insofar as the FTT’s decision was reached in reliance, in some undisclosed way, on its own expertise it was unfair and for this additional reason must be set aside.”

In essence both tribunals were held to the same standards as an expert, that is they needed to provide the evidence and reasoning that supported their conclusions and had failed to do so.

Having said that  it is common for parties to attempt to overturn a judge’s view of expert evidence and then fail.  A prominent recent example involved a complex technology case (IBM v LZLabs) in which the expert and factual evidence was deeply entwined.  Despite a judgement described by them as “an impressive piece of work” the appeal court was faced with a  ‘kitchen sink’ application where every adverse finding was in issue.  Refusing permission to appeal they cited the fact that the judge had made copious references to the expert evidence in her judgment and for each ground of appeal had considered the evidence appropriately, together with other evidence where relevant.

So again, applying the same standards as for experts in this case the judge was found to have met the standard. The fact that judges and tribunals sometimes fail to meet the standard should remind all experts that this is a challenging role and that it’s important for experts to keep up to date.

The Academy of Experts provides regularly updated guidance from our  Judicial Committee so you can be sure that you are adopting best practice. This includes for example the Model Form of Expert’s Report and Guidance Notes on Meetings of Experts, Contingency Fees & Remote Evidence. As a member you can also call our Technical Helpline for help and advice on ethical and practical issues from dealing with instructions to getting paid

Experts who work in the sectors where most clients are funded by Legal Aid, notably the Family and Criminal  courts, will know that the Legal Aid Authority (LAA)  operates strict controls over the  fees payable to experts. Their guidance on Expert witnesses in legal aid cases  includes a set of fee rates and for some specialisms defines a standard number of hours that can be charged for a given type of assessment.

 

However, it is fairly common for the specialist nature of the expert work involved to require a higher fee rate or more hours than the LAA would typically approve. When all parties bar one is legally aided this has led historically to the non-legally-aided party picking up the tab.  A recent case was brought by the London Borough of Barnet with the aim of exploring whether this was correct and to try to standardise the approach taken by the LAA when approving non-standard expert fees.

The judge summarised the situation as follows;  “In each case, the fees to be charged by one or more of the experts to be instructed exceeded the rate that, after consideration, the LAA was prepared to pay. All of the parties, save for the local authority, are legally aided. The court had previously directed that the fees were to be split equally between the parties, including the local authority, but the LAA was only prepared to sanction payment by the legally aided parties at a lower rate, leaving a short-fall in the overall fee. The point, not unreasonably, made by Barnet was that the court should not simply turn to the local authority as a matter of routine and expect it to cover the short-fall, without at least first undertaking a thorough exploration of any reasonable alternative courses of action.

The point is one that arises regularly in cases throughout England and Wales and is of obvious practical and financial importance in the management of care proceedings. Some months prior to the hearing, following receipt of a letter signed by 88 different local authorities raising the point, I invited Mr Justice Williams to convene a sub-group of the ‘President’s Experts Working Group’, which he chairs, [the ‘experts group’] to look at the issue. During the hearing I was informed that the experts group, which had been assisted by attendance from the LAA, was soon to conclude its work. I was also informed that the LAA was in the process of reviewing its guidance on this point. In the circumstances, having endorsed interim funding arrangements which had permitted the expert instructions in the two cases to proceed, I delayed preparation of this judgment so that it might encompass the outcome of the experts group’s discussions and the revised LAA guidance. “

In the event the fees for the specific cases raised by Barnet were agreed, but they illustrate the importance of appropriate expertise being involved, in both cases the opinions were required to decide whether injuries to very young babies were accidental or not.

However, the outcome of the experts group is helpfully summarised in the judgement which explains that “it is not the intention of the LAA that local authorities should make up a shortfall in expert fees (other than in unusual circumstances)” and sets out the general principles that apply. The judgement also sets out a template, agreed by the LAA, for court orders made when approving the instruction of an expert where the hours or rates will exceed the LAA rates/hours.

Members working in the Family Courts may want to direct their instructing lawyers to this guidance and template if circumstances appear to warrant an unusual level of expert fees or more hours than the standard assessment.

The Academy of Experts provides a range of authoritative guidance on experts role in the courts and on topics such as GDPR, Joint Statements, privilege and so on which is available at no charge to members in the Academy’s Knowledge Hub. You can also search our website for news and guidance on Family and other matters.

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

One of the sad things about being an adult is no-one gives you a gold star or a sticker when you’ve done a good job. Similarly criticism of experts generally gets much more air-time than praise and sometimes the only way to know when experts have done a good job is when a judge simply says ‘I received expert reports from X and Y’ and nothing more.

So it was heartening to see a judge in the family court  take the time to express how challenging the job can be and give credit to an expert for this. In a difficult family case he considered evidence from a CAFCASS expert (CAFCASS is the Children and Family Court Advisory and Support Service which advises the family courts about the welfare of children and what is in their best interests).

The judge thanked the expert sincerely for her help and expertise and noted that “In the court’s experience, CAFCASS find they “cannot do right for doing wrong” – in that each parent will often pick and choose which bits they agree with or take the view that any disagreement from the expert with their case is a personal attack on them or some form of persecution. In the court’s experience of such experts, they are genuine, hardworking, over worked and underappreciated. In the present case the court found the evidence to be both earnest and fair.“

The lengths to which parents sometimes go in criticising experts is illustrated by an Australian case involving a disability assessment. The parents reported the expert to their professional body and accused her of violating “numerous standards and professional behaviour”. They then sought to have the expert’s report disregarded by the court.

Having heard evidence from the expert and witnesses the Tribunal observed that “the entire assessment was recorded and that no issue was raised by the Applicant or his wife at any stage prior to the completion of her report.” They found it appropriate to rely on the expert’s report based on the evident experience, balance and thoughtful approach taken by the expert. As they noted “She was the only expert witness to properly identify and appropriately report on the risk of family violence and to proffer a nuanced explanation for the reduction in the Applicant’s capacity over the last few years. She also cautioned the Tribunal against any dramatic reduction in support for the Applicant. “

Experts working in these, and  other less contentious areas, should be heartened that the courts do value their expertise and fairness and will resist unreasonable personal criticism. Of course all experts have a responsibility to make sure they keep up the high standards the courts expect. If you need help in any aspect of expert work the Academy’s Knowledge Hub contains authoritative guidance from our judicial committee and practical advice on a range of topics. As a member you can also call our Technical Helpline for help and advice on ethical and practical issues from dealing with instructions to getting paid.

Lawyers spend a good deal of time discussing timetables for disclosure, witness evidence and expert reports but it seems that sometimes they forget that a failure to raise expert issues at the right time can have serious consequences.

For example, expert evidence about signatures is commonly needed for inheritance disputes but in Lynch v Murphy in the Irish High Court a claim was dismissed, in part, because the expert report that was claimed to exist had not been served.   In Huang & Wang v Credit Suisse the claimant’s application for summary judgement was not accompanied by any expert reports, despite the validity of signatures being key to the case. The judge described the claimant’s attitude as “an oddity I am unable to fathom” and refused their application.

While these are extreme cases a more common occurrence is for addition expert evidence and complaints to be introduced as the legal process goes on, sometimes in supplemental reports, in submissions and even in the witness box. In Nicholas & Ors v Thomas & Anor, a case about falcons rather than ducks, in which one neighbour accused the other of harassing them and causing such as nuisance as to cause a high mortality rate in their falconry business.

The defence expert was heavily criticised by the claimant’s counsel not least for producing a supplementary report during the trial. As the judge said this criticism  was not well-founded because the report was responding to new evidence introduced by the claimant the day before the trial started. Having finished all cross-examinations the claimant’s closing submissions then invited the judge “to act upon suggested errors in Dr Forbes’s response to ROP’s Summary which had not occurred to them before he left the witness box. “ Unsurprisingly the judge was not especially impressed by this approach.

The eventual outcome  was that only  8 out of 34 allegations were proven  with a value  of £300k out of £1M originally claimed, which rather suggests that a more orderly approach to the expert evidence who have been more cost-effective for all parties.

The moral of all these cases is that if expert evidence is needed then it should be obtained as soon as possible and cover all of the technical issues that need to be covered. If you’ve need an expert in a hurry, whether for ducks or falcons, then TAE’s ExpertSearch can help. Our register of accredited experts is easily searchable or you can contact TAE and we’ll do our best to help.

 

Two recent articles in the Guardian cited the appeal court’s over-turning of a doctor’s conviction and an assortment of criticisms of experts made over recent years in highly critical articles, calling for compulsory training and registration of experts. Our Chair, William Hooper responded on our behalf as follows;

Recent articles have discussed concerns about expert evidence in the Courts and argued for greater regulation.

An expert witness is someone with specialist knowledge which the Court considers useful to itself in resolving a case.  The expert’s task is to explain the significance of technical material to the Court so that the judge (in a civil case) or jury (in a criminal case) can understand it and include it as part of their considerations. The decision-makers weight evidence, including that from experts, as they see fit.

The expert witness does not decide the case in either the civil or criminal courts.

Technical evidence can be complex.  It often happens that expert witnesses appointed by the two sides agree on some points of interpretation and disagree on others.  Expert witnesses may be subjected to robust cross-examination to detect error, incompetence or the hired gun.

Your writer calls for greater regulation but appropriate regulation has been introduced.  Instructing solicitors are required, when instructing experts, to inform them of their duties under the Civil (or Criminal or Family) Procedure Rules and the Practice Directions.  These cover the minimum legal obligations for expert witnesses.

The Academy of Experts, since 1987 a professional and accrediting body for expert witnesses, agrees that training is appropriate to ensure that those appointed fully understand their obligations and how those apply in a variety of potentially difficult situations.  Such training has been available for many years from The Academy of Experts and other sources.

Rather than the imposition of additional regulation, which may result in the exclusion of experts with the best experience and expertise to assist the Court, it is to be hoped that the CPS and instructing lawyers will carry out appropriate due diligence and choose to instruct properly qualified and trained expert witnesses.

William Hooper

Chair, The Academy of Experts

3 Gray’s Inn Square, London WC1R 5AH

Given how  often lawyers and experts complain about encountering hired guns in litigation it sometimes seems that every other expert must be crossing the line from independent, objective opinion into full-blown bias and advocacy for their client.

In reality our adversarial system means that any expert other than a Single Joint Expert will spend a good deal more time with their own client and legal team than the opposition . Your legal team will typically be more interested in picking holes in the other side’s arguments and expert reports than checking that your report is 100% objective so it’s easy to slide, almost unconsciously, into positions that favour your side.

Judges understand this to some extent and  as long as the bias is not too extreme may confine themselves to a wry comment. For example, “Both experts on occasions were over-optimistic in favour of the party who instructed them.” and “both experts at times had seemed, at least in their reports, to have adopted a rather more critically rigorous approach to assessing the quantum of the other parties’ claims than when reviewing their own client’s.”

But expert evidence is very important to the courts and experts are rightly held to very high standards, so a good starting point to is to try to avoid even such mild criticism. The simplest way to do this is to read your own report  as though you were the other side’s expert. Are there gaps in your reasoning? Is there evidence  that might contradict your conclusions? If you’ve discounted witness evidence or documents, why have you done that? Is it justified?  Have you set too high or too low a standard for professional conduct in your analysis?

The key question is does this report help the judge to understand the case and form a truly objective view of the expert issues. Then when you arrive in court you will be confident that your report will stand up to even the most difficult cross-examination.  In a recent case, for example,  a valuation expert who the judge considered to be unquestionably an impressive expert was subjected to trial by ambush while giving evidence. Fortunately his expertise and independence mean that when “presented with new material while in the course of giving evidence; he engaged with the new figures presented to him and was able to offer clear, comprehensive answers to the questions put

By contrast in a clinical negligence case an expert had based all her opinions and written her report entirely based on fact that was not stated in a witness statement and had been completely undermined during the trial. The judge commented that she found this very concerning, “as it appeared to me that the expert was:

i) holding firmly to an opinion which was based on one perceived fact which she elicited from the Second Defendant’s witness statement (that he had the diagnosed pyelonephritis in mind at the index consultation, albeit that his witness statement was clear at the start that he had no recollection of the Claimant at all), even when the basis of that perceived fact had been fatally undermined;

ii) trespassing on the judicial function to find, and rely on as a fact (or as her belief) that he was considering pyelonephritis in the index consultation; and

iii) seeking to advocate on behalf of the Second Defendant, thus undermining her own independence. “

 

Unsurprisingly the other expert’s evidence was preferred, something that  could easily have been avoided by a careful and considered review of the report and the evidence by the expert and her client’s legal team.

 

The Academy’s Judicial Committee publishes the authoritative guidance for experts so you can be sure that you are adopting best practice. This includes for example the Model Form of Expert’s Report and Guidance Notes on Meetings of Experts, Contingency Fees & Remote Evidence. We also provide practical advice and guidance on topics such as GDPR, Joint Statements, privilege and so on which is available at no charge to members in the Academy’s Knowledge Hub.

Our image is from GOG.com

While we still have London Legal Walk on 17^th June and  a session AI and Expert Evidence on 3rd July to look forward to those will be our last Member events until the autumn.

Over the last few years we’ve had talks about Public Enquiries, Civil procedure Rules, AI, Collaborative Contracts, Use of Statistics and many other topics of interest to experts. We’re already starting to plan our Autumn programme and would welcome ideas for events and speakers from members and the wider legal & expert community.

Is there a topic close to your heart you think experts should be more aware of – or can you bring a new slant to well worn subjects like expert independence, disclosure or any of the myriad challenges we all face in discharging our responsibilities to the courts? If you can please get in touch.

All our events provide the opportunity to learn from and be supported by other experts, something that many members find invaluable. They’re free to attend for members who can also bring a Guest.

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. If you’d like to join the Academy but are unsure if you have the appropriate skills please complete our Pre-Application Questionnaire and we’ll help you identify the appropriate membership level for you.

When highly qualified experts can sometimes get things very wrong you might be forgiven for thinking that the answer is yet more study and training. An in the well known case of  a carbon trading expert in 2019 who “couldn’t remember” if he had passed any A-levels and hadn’t read any books on the subject you would probably be right.

But academic qualifications by themselves are not everything, the important issue is whether an expert has relevant qualification and experience. In Malhotra Leisure Ltd v Aviva Insurance Ltd [2025] EWHC, a case about extensive water damage caused to a hotel, the judge was presented with evidence from two experts with widely differing expertise essentially a plumber and an engineer.

While the plumber had extensive practical experience he did not have much in the way of academic qualifications and in contrast the engineer was qualified in mechanical engineering and fluid dynamics but had a career in investigations rather than building installations.

Unsurprisingly both parties argued that the other’s expert was not suitably qualified or experienced. However as the judge commented he was not persuaded that he “should treat either expert as not being qualified to provide expert opinion to this court on the issues, which they were asked to address. As is often the case, both experts were doing their best to assist the court and doing so with a background of considerable experience, albeit from different perspectives. “  Quite the reverse, he found that helpful and objective evidence from two experts with different backgrounds was actively useful in understanding the issues in the case from different perspectives.

That’s why the Academy’s accreditation process validates members academic qualifications but also asks them to explain their professional experience and provide references an evidence to support it. Our assessors then check that both qualifications and experience are relevant and appropriate for the expert work they intend to do.

If you’re a lawyer looking for an expert you can search the Academy’s register for an accredited expert or contact us directly for assistance.

If you would like to join the Academy but are unsure if you have the appropriate skills please complete our Pre-Application Questionnaire and we will help you identify the appropriate membership level for you.