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!

In recent years a range of stakeholders have raised concerns regarding the standard of certain expert evidence relating to children in Family Law court cases.

These experts often use the title of psychologist and may be instructed to give evidence or offer diagnoses which they are not qualified to undertake.

The Family Procedure Rule Committee is now consulting on proposed changes to the Family Procedure Rules (FPR) and the associated Practice Directions (PD) for experts in family law children proceedings. These changes involve a requirement for an expert witness to be a ‘regulated expert’ which is defined in FPR 25.2.

The proposed definition of a regulated expert is set out as follows:

‘regulated expert’ means an expert who is:

1. regulated by a UK statutory body; or
2. a register accredited by the Professional Standards Authority for Health and Social Care; or
3. regulated by an approved regulator under the Legal Services Act 2007.

This requirement would not apply to international social workers and the court would be able to give permission to any expert where there is no regulated expert available.

Consultation Questions

1. Are there any experts not accounted for in the current draft of the amendments who you feel should be considered? If yes, why do you think they should be considered?
2. Do you have any feedback on Rule 25.5A and the amendments to PD’s relating to the standards of experts, as currently drafted?
3.  Are there any other comments you would wish to make regarding the instruction of unregulated experts?

 

The consultation is available here with responses due by 6 June 2025 at FPRCSecretariat@Justice.gov.uk.

TAE will be making a response to the Family Procedure Rule Committee. We would welcome your comments and input in the preparation of our response.

We would be grateful if any comments or suggestions to help frame the TAE response be sent to us not later than 15th May.

No sooner have we posted about experts doing their job efficiently, professionally and objectively than along come two judgements where the experts involved have very definitely not come up to scratch. Both experts were guilty of expanding and exaggerating their opinions to try to benefit of their client’s case.

 

In Morriss v London Borough of Hillingdon the cause of a motorbike accident was said by one expert to be the “the most dangerous site on a distributor road he had seen in his 55 years’ experience.”. This was a risky position to take given he’d not been able to examine the relevant stretches of road as they were at the time of the accident. The judge conclude that his evidence was “inappropriately partisan and exaggerated: the evidence concerning the collision site demonstrably showed it was not the extremely dangerous site that he characterised it to be, not least that there had never been a motorcycle accident there before: “

 

In Freeman & Ors v Home Farm Ellingham a planning expert took things even further. Not only did he give evidence outside the pleaded issues, which revolved around a loss of value in a plot of land,  he generated a set of plans for a development that had never been contemplated, orchestrating, as the judge explained, the production of “what appears to be factual evidence, but that evidence was entirely self-generated by him, and his firm.” That somewhat cavalier approach may explain why in court he appears to have found it difficult to accept instructions from the judge, who records that he “insisted on answering questions that he had himself posed even when asked by the court not to.” and on one occasion ignored an instruction from  the judge not to elaborate on what should have been a simple yes or no answer.

 

In the motorbike case the evidence of an expert with a great deal of experience was in the end valueless and the planning experts evidence was ruled inadmissible (or alternatively given no weight). The moral for lawyers and clients is that expert opinions that fall too heavily on your side should be related with suspicion, if they are not credible it will be obvious in court and end costing you money and very probably your case.

As you may be aware the validity of computer evidence has been in the news recently because of the public enquiry into the Post Office and its Horizon system, which formed the basis of prosecutions  of sub-postmasters.

Earlier this year the Ministry of Justice issued a call for input on the use of evidence generated by software in criminal proceedings.The MoJ wished to understand how the current presumption concerning the admissibility of computer evidence is working in practice, and whether it is fit for purpose in the modern world. As the leading professional and accrediting body for expert witnesses in the UK and world-wide, The Academy of Experts convened a working group that included experts in IT and computer systems and a range of other areas of expertise who use computer-generated evidence in criminal matters. The group debated the questions posed by MoJ and developed its view to form a response.

It is the view of The Academy that the Presumption should remain, but it is vital to recognise its limitations and to welcome challenges to it. Issues of disclosure are central to addressing this situation. The reasoning and recommendations we made are set out in full in our response to the consultation.

We are grateful to everyone who contributed to the working group;  Mark Ballamy, Richard Emery, Mark Holdsworth, William Hooper, David Tonks, Gill Hunt, PeterMcArthur, Nigel Young, Jawad Hassan Zadeh

 

Once more unto the breach dear friends? That’s not a phrase  you’ll hear often in normal life but lawyers, and by extension experts,  spend a lot of time talking about breaches. Of course they don’t mean holes in the walls of a besieged city as Henry V did, they’re referring to the many and various ways a client can be said to have broken the rules set out in a contract.

Experts are often called upon to identify how bad a breach is so its worth being aware of the main phrases that are used;

Minor breaches are fairly obvious, the term refers to smaller breaches that only affect part of the goods or services whereas material breaches are much more serious and involve failure to fulfil an important part of the contract. They can result in serious consequences for the breaching party, though so you’ll need to discuss with your legal team what the definition of ‘material breach’ is for a particular contract before expressing any opinions on the subject.

At the extreme end a party can be in repudiatory breach if they are deemed to have walked away from or refused to perform the contract. If that happens the other party is entitled to stop performing their end of the bargain, whether that’s paying for services or doing their own part of the job. An example would be a builder  walking off a job and refusing to work, though we’d be interested to hear about real world examples from members!

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

Our picture is of course from the BBC’s Hollow Crown version of Henry V starring Tom Hiddlestone.

 

Easter Eggs for Judges. While many children are expecting chocolate Easter Eggs next weekend, in the IT world an Easter Egg means a hidden feature or message left in a program with the aim of surprising and delighting users who find it.

Although reports on experts often focus on where we’ve gone wrong the vast majority of experts do a good job and are rightly recognised for this by the courts. This is just a selection of comments made by judges so far in 2025.

“I found him to be a model expert witness.  He was extremely well qualified and understood the area fully and in depth .  He was very clear, concise and fair in his answers.”

“Both experts were knowledgeable, fair and sought at all times to assist the court by their evidence. For that reason, the matters in issue between them were very limited.”

“I found her to be a careful, fair and straightforward witness who made appropriate concessions.”

“I am very grateful to the experts for their careful consideration of the expert issues and their co-operation in producing materials to assist the court to determine the numerous technical issues in this case.”

“Both of these experts were cross-examined in some detail about the conclusions they had reached and I am satisfied that their opinions were cogent, balanced and informed by all the available and relevant professional records.”

Clearly these, and the many other experts who have been mentioned in positive terms, were acting as ‘Easter Eggs’ in the best possible way.

Our picture comes from https://thebridgeit.com/2023/04/06/the-10-best-easter-eggs-in-tech/

Spring is a good time for fresh starts so when better to check that your online profiles are looking good? As an experiment, why not just type your name and ‘Academy of Experts’ into Google to see how you look to the outside world. Ask  yourself ‘What would I think about this person if I was a solicitor looking to instruct a new, unknown expert?’  Is the profile up to date, does it contain the right qualifications and recent (not ancient) cases? Does the summary tell you instantly what sort of cases will be right for this expert? If the answer to any of those questions is “hmm, maybe”, then you have some work to do.

Alongside your Academy profile most people will also check a new expert on LinkedIn, so try the same exercise and search for yourself. Does your LinkedIn profile show that you’re an expert witness, does it include your Academy Membership and a link to your Academy profile to prove it? [Hint: it will be at https://academyofexperts.org/search-register/profile/firstname-lastname]. If you add Academy membership as an employment you’ll also be listed on the Academy page, so people will find you there if they start their search on LinkedIn

And finally, if you’re interested in acting in Arbitrations why not take up the complementary profile offered to Academy members by Jus Mundi. Just click to request a free trial and they will check you’re an Academy member and set it up for you.

 

 

 

Only common sense? Now may not be the best time to refer to Thomas Paine’s advice to Americans that they should seek independence from Britain, but a keen understanding of what common sense means is important for an expert.

It’s trite to say that experts are there to assist the court on matters within their expertise but it tends to irritate judges if experts provide opinions that tell them what they already know. If you’re being asked to give opinions about matters that are really common sense it’s important to stop and consider if this is really necessary.

In some recent cases a good deal of time, and client’s money, seems to have been spent on expert evidence that really wasn’t needed. As Meade J observed in a patent case involving Motorola and Ericsson, “The experts gave their evidence very fairly and it was not submitted to the contrary. However, with a few exceptions, and this is not the fault of the experts themselves, I found the expert evidence unhelpful and a waste of time. For example, questions were asked to establish that companies in this field like certainty if they can get it, and that patent injunctions are bad for handset manufacturers. I did not need experts to tell me this. “

Similarly in an inheritance tax hearing the Tribunal considered that expert advice on the running of a property business did not assist them, “this is not an area where particular specialist expertise and experience is required to understand the evidence given by those involved in the business.”

Experts and lawyers should take care to avoid wasting time in this way and experts in particular should remember that an irritated judge is unlikely to be of benefit to them or their client.

Summer events round-up. Now the clocks have ‘sprung forward’ and the promise of spring is in the air it seems a good time for a reminder of our events programme for the next few months. As well as our program of training for new experts (plus advanced training on Expert Determination for established experts) the summer programme includes  plenty of in-person opportunities to learn and catch up with other experts;

16^th May Golf Day

20^th May  Expert Witnesses & Conflicts of Interest

11^th June President’s Dinner

17^th June London Legal Walk

1-2nd July Expert Determination (Online)

25th July Gray’s Inn Garden Party

It’s also worth remembering that the first week in June sees London International Disputes Week taking place, with a wide range of events including discussions on AI, construction & aviation disputes and the competing claims of litigation vs arbitration. As always there are opportunities to learn and meet with lawyers from all over the world. Experts who work with in-house counsel rather than external lawyers might also find Crafty Counsel’s conference in the same week useful, the agenda is packed with short sessions on a wide range of topcis including eomployment, privacy, shareholder disputes & construction.

Our picture is from Airedale Springs, The History of Springs in Watchmaking.