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.

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The London International Disputes Week (https://lidw.co.uk/) is a major event in the annual calendar. It provides a conference and a series of events hosted by barristers’ chambers, law firms and experts active in the provision of legal dispute resolution services. It is of the nature of the market, that although many practitioners are based in London, this is not a requirement, and many delegates come from around the world. Members of the judiciary are also frequently to be seen.

For members of the Academy considering how to build their networks and promote their practices, this is an intense time. Bring plenty of business cards! It provides a good opportunity to meet those with whom you may serve, or may at some time require your services. Members of the Academy were out in force in the June 2025 sessions, others will be marking their diaries for the first week of June 2026.

Members who are part of large dispute groups may find that their firm collaborates with others in putting on an event. Around 114 such member-conducted events were conducted this year, catering for every niche interest. This attracts delegates from far and wide, providing an unrivalled opportunity to maintain connections. This year, themes of arbitration and artificial intelligence featured strongly.  All events have to be put on by more than one firm, fostering a collaborative approach. Most are very well conducted, with effective chairs and brief, focused questions. Direct value comes from the conversations over a glass or sandwich before and after events, when networking is promoted. The subject of the seminar serves to attract others with shared interest. The content can also be of high value.

Expert work requires the maintenance of a large number of connections over many years, such that when opportunity arises, one is considered. An event such as LIDW has a natural place in the mix of marketing activities. However you seek to engage, this is worth considering.

 

Our photo shows a panel at LIDW 2025, discussing the impact of AI on dispute resolution. Courtesy of CMS

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.

Having extolled the virtues of experts a few weeks ago we have to return to a more critical tone this week. Inspired Education Online Ltd v Crombie was a dispute about the sale of a company that hit the headlines because of the rather lurid ‘banter’ exchanged (internally only) by staff. According to the Claimant this seriously reduced the value of the company and they wanted a substantial sum of money back. That necessitated  valuations of the “warranty false” value by experts, who had to estimate how much it would be worth if said emails became public knowledge and caused scandal.

 

Unfortunately the experts used fundamentally different methodologies leaving the court, as the judge commented “in the position of having to determine which of the experts is more credible – there is really no middle ground.”

 

She concluded, after a lengthy review, that the evidence of the Claimants expert had been fatally undermined by a range of issues, starting with instructions that made the valuation unrealistic, reasoning that was “alarmingly thin” and placing reliance on witness evidence that was obviously outside the witnesses’ knowledge.

 

However, a particular issue that will raise the hackles of other experts, as well as judges, was a failure to provide material that contributed to his report meaning that the other expert had no opportunity to consider it.

 

A section of his expert report covering the risks a company in the educations sector would be exposed to was based in part on information acquired from colleagues within his practice. However, as the judge commented said; “He did not provide any details of the “colleagues” he had sought information from, the transactions with which those colleagues had been concerned or the information he had received from them. He did not attempt to explain which aspects of his report had been influenced by these “internal enquiries” or whether his views on particular “risks” had been affected by them. He also did not appear to understand that this approach was quite obviously inconsistent with his duties as an expert and his expert’s declaration. He admitted that he had not shared the information derived from these internal enquiries with the Defendant’s expert because he did not regard the content of the information to be “controversial”, thereby showing a surprising ignorance of the importance of experts operating on a level playing field.”

 

It is easy to forget sometimes that other experts are colleagues to be respected rather than enemies to be overcome, especially if they hold radically different views. But the rules are there to make sure that both sides have a fair chance and it’s an important aspect of the expert role to at least make sure that you opposite number has access to all the information you have.  Perhaps the best approach whenever you decide to include or exclude something is to stop and ask yourself what you would need to see if you were on the other side and then act accordingly.

 

It may also be worth meeting up with other experts more often to remind yourself that we’re all on the same side. The Academy holds regular member meetings and social events for just that purpose including our President’s Dinner and taking part in the London Legal Walk.

Those of you with children or grandchildren will know that in these brilliant stories by Jill Murphy, Mr Large is very definitely not ‘in charge’. Which is a helpful way of understanding that when lawyers talk about time being ‘at large’ they don’t mean each hour has somehow got bigger, they mean that a contract doesn’t have any dates specified for delivery.

Time can be at large from the beginning, so if you hire a builder but don’t have a deadline in the contract he isn’t obliged to finish the work by a particular date, only within a reasonable time (whatever that might be). The opposite situation, where time is ‘of the essence’ means there is a contractual deadline and the supplier has promised to meet it. There may be all kinds of reasons why they can’t and many construction and IT disputes revolve around the many ways a client can be said to have slowed progress but fundamentally the deadlines (or milestones) matter.

In extreme scenarios the behaviour of a client may mean that all deadlines have been thrown out of the window, metaphorically speaking, so that time has become ‘at large’ but identifying whether that’s happened and what the consequences are can be complex. If you’re not sure what the position is in a dispute where you’re acting as an expert then you’ll need to discuss with your legal team before expressing any opinions on the subject.

For more information and training on the role of the expert see https://academyofexperts.org/events/

 

 

Expertise expired? Lawyers are often very reluctant to use new experts but a recent case demonstrates the problems that can occur if someone’s expertise has reached its expiry date. In MJS v RPS Consulting, a case about the design and construction of a container park, the expert evidence was central to the issues and the value of the claim. Unsurprisingly perhaps both engineering experts were cross-examined extensively and were criticised heavily by counsel for both sides in their closing submissions.

Kelly J did not accept allegations of dishonesty against the Defendant’s expert, despite as he put it “beautifully crafted submissions” designed to persuade him otherwise. As he pointed out apart from one contentious issue “this was an expert who had plainly considered his duty under CPR 35 and had gone out of his way to help the Court on matters within his expertise. His reports provided detailed analysis and explanation of the processes which the Defendant appeared to have undertaken and the final design for the business Park from the outset. He explained elements of the design and performed hand calculations of the various factors which would influence the design in the same way that an ordinary engineer faced with a design of this sort would in practice.”

In contrast the Claimant’s expert did not give enough consideration to the pleaded issues, particularly those relating to workmanship and relied primarily on a Finite Element analysis  which he did not properly explain and agreed would not typically have been done in these circumstances. In summary the judge’s view was that his later career in forensic engineering and dispute resolution was less useful in determining the correct design approach than that of the Defendant’s expert, who had real-world experience of the sort of design conundrums that arise, something that lent credibility to his views.

While it’s clearly difficult for a professional expert to engage full-time on current projects this case highlights the need to stay grounded in reality and to engage in training or CPD that helps you keep the real world firmly in view. If you’ve unertaken recent CPD then perhaps now would be a good time to update your profile on The Academy of Expert’s directory of experts.

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/TCC/2025/831.html

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It’s a fact of life that counsel sometimes aim personal criticism  at experts, either during a cross-examination or afterwards in their closing submissions. That is very uncomfortable for any expert, whose professional and sometime  personal reputation may be on the line.

 

So a recent patent case offers some comfort that however critical counsel may be in their comments judges take pains to look at the evidence that’s been given and weigh up any criticism against what an expert has actually done and said.

 

This was a multi-party patent case involving a treatment for diabetes in which 4 highly qualified experts were all criticised to varying degrees during closing submissions and based on the judges comments had also come under some attack during the hearing. However, the judge largely rejected this criticism, in one case commenting that he was surprised it had been made “as the foundation for it was extremely flimsy“.

 

The experts were alleged to varying degrees to have expertise that wasn’t wholly appropriate, to have acted for the same parties in other disputes, to have advocated for their clients and to have provided biased and/or incomplete opinions.

 

One expert in particular demonstrated that dealing with such issues openly and honestly during a cross-examination is the best policy. This expert had given evidence in a related case that he admitted might have unconsciously impacted his opinions. As the judge concluded “In my judgment it is likely that unconscious bias did play a part in the way in which the reports were written, but ultimately that did not matter, given the entirely frank and straightforward way in which the expert gave his oral evidence. “

 

Which confirms that when challenged experts should think first about the correct, open and honest answer. Cross-examination is of course a challenging process so any first time expert would be well advised to have appropriate training. Our next Into Court session is on 18^th June and includes a mock cross-examination!

It’s easy enough to define the role of an expert in court but given how often parties put forward ‘expert’ evidence that’s ruled out or discounted  we thought a list of recent cases involving ‘non-expert experts’ might be helpful to lawyers and clients alike. So here’s a list of the tip 5 give aways that the evidence involved is not in fact expert evidence;

 

1. The expert isn’t an expert at all. In a case about the (incorrect) seizure of poppy heads by Border Force the Claimant tried to serve an analysis of the business loss written by his son. The judge concluded he had no relevant expertise, was not independent and there was already agreed expert evidence on the subject and refused permission to use it.

 

2. The expert is the wrong kind of expert. In a case about psychological difficulties suffered as a result of a lack of Covid precautions the expertise required was about the medical foreseeability of psychological injury. The expert did not have, or profess to have, such expertise and their ‘general awareness of health and safety guidance’ simply wasn’t good enough.

 

3. The expert doesn’t follow the rules. Many people have professional expertise but to give evidence in court they need to be aware of, and follow, the rules. In a case involving a Defendant’s failure to cooperate with a medical examination his GP gave rather colourful evidence about the process in a report that claimed to be compliant with Part 35. However, the GP concerned said that although he’d read Part 35 he hadn’t complied with it and had not referred to his letter of instruction. Unsurprisingly his evidence carried very little weight.

 

4. The expert issue isn’t relevant. While pleadings can and do change ultimately the courts have to decide case on the pleaded issues. In an insolvency case an application to allow expert evidence on business valuation and restructuring was refused for “the simple reason the evidence will not go to any pleaded issue in the claim”.

 

5. The expert is a judge! And finally, the Court of Appeal recently overturned a ruling where the judge had preferred his own personal ie non-expert view to that of an expert who had given uncontroverted evidence on the impact of the 1982 Hyde Park bombings on the daughter of one of the victims.

So to summarise, for expert evidence to be accepted it must be from an actual expert, with the correct expertise, by an expert who follows the rules and covers issues in front of the court and not from a judge. If you’re looking for a proper, qualified expert then TAE’s expert directory is the place to find one!