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.

There has been some publicity about a recent case, JSC  Privatbank v Kolomoisky, in which past judicial criticism of an expert were raised, suggesting among other things that experts have a duty to disclose such criticism. Less attention has been paid to the issues that led to the expert’s problems being aired in court.

The expert concerned was a fellow of ICAEW at the time of writing his reports but it transpired that by the time of the hearing he no longer was and more importantly his membership had been ‘Cessated’ and he had been the subject of a severe reprimand in relation to two disciplinary matters in 2023.  None of this information had been disclosed to the other side or to the court.

The judge made it clear that this was a very serious problem, “In my view, where an expert presents his evidence as a member of a professional organisation, which is expected by him to give the court assurance as to his ability to act in the case, he is under a duty to inform the court if his membership has ceased, more particularly where the cessation is linked to disciplinary proceedings against him.  The judges view was that the issue and the way the expert had dealt with it undermined the court’s confidence in his ability to give precedence to his overriding duty to the court when faced with other conflicting interests.

The existence of judicial criticism of the same expert from a case in 2018 was also relevant, and not disclosed, although the judge made no specific points about whether it should have been.

There’s a message here for both experts and their instructing solicitors.

For lawyers it is always worth checking an expert out by verifying their membership and searching for cases where they have been mentioned.  For experts, it really is important to maintain  your professional status and to make sure that if it changes for any reason you update your CV, online profiles and above all any lawyers you’re working with. You can be sure that an assiduous lawyer somewhere will check and even if you have decided to cancel a membership  for your own reasons its better to  say something immediately than find yourself being challenged in court!

 

The Academy is active in working with the judiciary and legal profession to ensure that expert views are taken into account and that members have access to the best possible advice and guidance.

Our 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.

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.

Ignoring AI for the moment, the use of computer models of various kinds has become routine in most if not all professions, whether it’s a simple spreadsheet or a sophisticated engineering in model. It should be no surprise then when such models  make an appearance alongside experts in disputes.

Some recent cases though point up the importance of the expertise that underlies any model and that an expert’s choice of inputs and their interpretation of the outputs is critical. Andrews v Kronospan is a case about dust, smells and other nuisance alleged to be caused by a factory. Experts in dust and wood fibre analysis met and agreed a set of parameters to be used in modelling the likely extend and impact of the factory’s activities, but both the Defendant’s experts for different reasons decide sometime later that these parameters were invalid. They came up with different parameters and different results, that favoured their client, although both provided detailed explanations and reasoning for their decision.

As the judge explained, neither expert has “been able to persuade me that their change of approach was not at least partially influenced by their desire to see whether or not their further analysis would benefit their clients’ case more than their existing analysis. I am not for one moment suggesting that they did not fully and properly discharge their duties as independent experts but I do consider that their evidence has to be considered with some caution as a result. Moreover, I am not satisfied on my analysis of the evidence that I can safely prefer their opinions based on their changed approach to those made by their opposite experts who proceeded on the basis of the initial common approach. “

In a completely different field, fingerprint analysis, there was no criticism of the inputs to an automated fingerprint comparison system. The difficulty was that one expert accepted the computer output as unequivocally correct, whereas the other, with the benefit of 30 years working on fingerprints was able to explain why some features of a fingerprint should be ignored because they typically appear when the print is smeared or of poor quality. Ultimately the judge preferred a manual approach illuminated by scientific knowledge and expertise over one that  treated the computer model as an infallible black box.

 

The message to experts is clear, you need to understand not just how to use a computer model, but what the right inputs are and how to interpret the outputs. Otherwise as the saying goes in the IT Industry you will have Garbage In and Garbage Out!

 

The Academy of Experts has a rigorous accreditation process to ensure that Practicing Members have appropriate professional skills and qualifications, have been trained in or have experience of  the role and process of being an expert witness and can provide appropriate references or evidence of their skills.

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.  You don’t have to be already practising as an expert or have testified in court to join.

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.

September’s newsletter covered Expert Witnesses and their Credibility, Top Tips for Expert Witnesses on managing their instructing solicitors,  news that Low-Value RTA Claims will go to Automatic Mediation and many other topics.

We also  put together a selection of events around the world of interest to members including

• Hong Kong Society of Construction Law Conference – 7^th November
• ICAEW Forensic Group Conference – 19^th November
• Expert Witness Courses in HK – 24^th, 25^th & 27^th November
• Online Member Meeting on Money Laundering – 12^th November

Closer to home the Academy’s AGM in October will bring the opportunity for Members to elect their representatives to Council for next year and November our biannual Council meeting.

We’re also in the process of forming an Insurance Interest Group. If you’re  member and are an insurance expert and would like to find out more about this Group, please contact the TAE office.

If you don’t receive our regular please contact the TAE office or sign up to our newsletter if you’re not  member.

Most people will be aware by now that a pilot scheme for “access to public domain documents” in the Commercial Court, London Circuit Court and the Financial List is due to start in October.  Guidance and details of the pilot aren’t out yet but it’s expected that at least some expert reports will become publicly available.

In the meantime experts who are concerned about the possibility should start to think about making sure the opinions they provide are consistent, not just within a given report but within all their reports. Of course that’s not really a new requirement and from time to time an expert will be challenged to explain why their opinion today seems to differ from a previous opinion.

That’s exactly what happened in Abbott Diabetes Care v Sinocare a trademark dispute about the design of an ‘on-body’ glucose monitor. The Defendant’s market research expert had examined surveys conducted by the Claimant ‘s expert who unfortunately was unable to testify because of ill-health.  This placed more emphasis than normal on her evidence which was critical of the approach used in the surveys that supported the claim.

She was also challenged to explain why her opinions appear to vary in this case compared to her views on what the claimant’s counsel viewed as an equivalent survey in Tesco v Lidl. Fortunately she appears to not only have held entirely consistent views but was well-prepared enough to, as the judge explained “emphatically and, in my view, convincingly, rejected the suggestion that there was no material difference between the Traditional Survey and the Lidl survey.”

What this case does emphasis is firstly the need  to be objective and consistent  between cases and in the light of the impending Open Justice pilot experts should add a new question to their internal checklist. Not only should they ask ‘what would I say if were on the other side’ but ‘is this the same opinion that I gave last time and if not, why not?’

Secondly if you have appeared in court and your evidence has been discussed (or from this year made public in full)  you would be well advised to read up on any relevant cases before giving evidence!

The Academy’s Knowledge Hub. includes practical advice and guidance for experts who want to check their practe, including 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.