Litigation deadlines are unforgiving and a common gripe among experts is being given instructions too late, with not enough time to do the job properly. The difficulty of course is that we all want to help our client and instructing solicitors, which makes it hard to turn down jobs at short notice.

A recent case (MVL Properties (2017) Ltd v The Leadmill Ltd) should highlight to lawyers how they risk jeopardising their client’s case by last minute instructions. Two experts gave evidence on the costs to refurbish and re-equip a nightclub and music venue, but one had clearly not had time to do a thorough job.

As the judge explained “He very candidly said that his original report was not his best work because it was rushed: he was told at 11am that his final report was required by 4pm. I note that the report was produced after the time specified by the court and only admitted in evidence as a result of an application for relief from sanctions. I do not suggest that Mr Sullivan was responsible for that time pressure: but its existence is apparent from his report.“

Unsurprisingly, the more coherent report of his opposite number was largely preferred. The moral of the tale for lawyers is try to give your experts time to do their job and to experts, think very carefully before accepting ‘urgent’ instructions, you’re the one who will have to explain the results!

Our picture is from disneyclips.com

 

Angel Water or Snake Oil? Anyone starting a new venture needs confidence in their product so it’s hardly surprising when entrepreneurs wax lyrical and sometimes over-state the importance of their inventions. But experts acting in disputes involving new technology need to beware the dangers of not fully investigating their client’s claims.

 

In a recent  case in Abu Dhabi the claimant,  the supposed inventor of a method of creating ‘Angel Water’ was said to be someone “whose self-regard is at times reflected in hyperbole and exaggeration”. He was apparently unable to explain with any clarity how the invention worked and when pressed was not willing to give the court any meaningful details of his ‘trade secrets’.

 

The claimant’s expert “did not get off to a promising start” as he admitted to an ongoing commercial relationship with the claimant which “served immediately to cloud any perception of independent evaluative evidence, or that he had approached this case with an open mind“. That appears to have been compounded  by attempts to convince the court that electrolysis of water would produce a special, flammable “HYDROGAS”, which was “water vapour” but not “steam”.

 

Those of you who were awake during GCSE Chemistry lessons, as both judge and opposing counsel clearly were, will know that water vapour doesn’t burn and the electrolysis of water produces a mixture of hydrogen and oxygen, which does. But sadly for the Claimant  the latter is a well-known fact and not a new invention. All of which leads to the inexorable conclusion that the expert involved was either very much not an expert or very much not independent!

 

Whichever position is correct the answer the court came to was that the Claimant was selling snake oil and should recompense the Defendant for money they had been persuaded to invest!

Our picture is from https://www.smithsonianmag.com/innovation/how-snake-oil-became-a-symbol-of-fraud-and-deception-180985300/ and an article about how Snake Oil became a symbol of  fraud.

The diagnosis of car engine problems has come a long way since the days when a weekly check and clean of sparkplugs was necessary. Car dashboards light up with an astonishing array of warning lights and car mechanics use computer diagnostic tools to identify what’s gone wrong, and sometimes to fix it.

Unfortunately, alongside those changes we’ve all become used to sharing our opinions on social media, something which tripped up a car expert in a recent dispute about a misfiring Citroen.

In David Adam v Moneybarn the car developed faults a year after purchase and a claim, managed by Reject My Car Ltd, was  raised for the repair and/or replacement on the grounds that the car was defective when sold. Both experts agreed that a warning light was displayed and computer diagnostics showed faults but while the claimant’s expert, Mr Smith, diagnosed a misfire because ‘the whole car was shaking  and rocking badly’ and that this was a latent defect, the defendant’s expert observed no shaking and took the view that any misfire could have multiple causes rather than being a fundamental problem.

While the judge accepted that Mr Smith had both relevant knowledge and experience of mechanical faults it turned out that he had actively supported and marketed Reject My Car on Facebook and had, amongst other more temperate posts, commented “could this be the end to being treated with contempt by large, franchised dealerships?”. As the judge commented “Some posts, taken individually, might not give rise to a legitimate attack on Mr Smith’s impartiality. However, I am concerned not just to some of the more blatant individual posts but also the cumulative effect. It leads to the impression that Mr Smith has a certain view as to the car industry, and sympathy for the cases that Reject My Car Ltd take on. “

The expert was not assisted by his client neglecting to mention that he had covered 40,000 miles between buying the car and experiencing problems, the end result being that Reject My Car’s claim was consigned to the scrap heap, presumably along with the car!

The lesson for all experts is to be as careful and balanced in what you say on social media as you would be in court.  For more information on the roles of experts see https://academyofexperts.org/practising-as-expert/

Our picture is from “Grimmer Motors” in NZ

Goldilocks expert reports?  A recent write up on reports in a non-expert context (https://freshspectrum.com/goldilocks/) suggested that there’s no such thing and that authors should create different reports for different audiences. But an expert is only allowed to produce one report so how can that best be achieved?

A report that’s too brief is unlikely to help and in extreme cases such as Jukic v BBC Anor [2025] https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2025/221.html , where an expert report was said to exist but like the claimant (and MacAvity perhaps, simply ‘wasn’t there’ judges have no choices but to make do without expert opinion.

In a complex Australian case (ASIC v Money3 Loans [2025] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2025/75.html ) involving consumer lending practise where the judge remarked that “It takes a good deal of persistence to read the Expert Report, which obviously I have.”  an experts report was challenged despite its length for lacking a clear factual matrix supporting the opinions it contained. The report was admitted but a more concise but properly underpinned report might well have saved time and cost.

Clearly too short and too long can both be problematic, but a recent judgement highlights what judges really need. In a sad case involving the treatment of an individual in custody there were two eminent and experienced experts involved but their evidence focused on different aspects of the case. One centred on the individual’s previous mental health history and treatment whereas the other focused on how they had presented to the police and others while under their supervision. Ultimately the issue the judge had to decide was whether they should have been treated differently in custody and their presentation at the time was what mattered, so  an expert analysis of their pervious history was of little or no help to the court.

Dobson v Chief Constable of Leicestershire Police [2025]

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2025/272.html

All of which highlights the need for experts to focus on the issues the court has been asked to decide. For more help on writing expert reports TAE provides regular training courses and a Model Form of Report aimed at helping experts do just that.

https://academyofexperts.org/practising-as-expert/model-form-of-report/#page_content

How do you Keepy-Uppy? It may be a stretch to compare acting as an expert with football, but anyone old enough to have played with an old-style leather football will know that the skills needed to mange that (especially when wet) are different from those needed for modern, synthetic footballs.

 

The same applies to expertise in any area, as highlighted by a recent County Court judgment highlighted by Gordon Exall (http://www.civillitigationbrief.com/2025/01/08/proving-things-254-which-expert-is-going-to-be-accepted-an-important-issue-considered-in-a-clinical-negligence-case/)

 

This was clinical negligence case revolving around dry eyes and the approach to risk taken by the clinician. Both experts were very experienced but the judge highlighted that one had not practised for some time and was not able to comment on current practice, something that in the end meant the other more up-to-date expert’s evidence was preferred.

 

While many experts continue to practice in their chosen field so naturally keep up to date, others find expert work taking over so that staying current is more of challenge. Steps you can take if that applies to you include;

 

Keeping on top of current practice through reading and attending training/events in your field

Practising on some level if at all possible, or shadowing a current practitioner if not

Networking with fellow professionals to discuss new developments and approaches

 

Those are the tactics that spring to mind, if any members have other suggestions we’d love to hear from you.

Great to see so many members at our Chairman’s Lunch to hear Lord Neuberger thank outgoing Chairman Ben Johnson and welcome our new Chairman William Hooper.

Member also enjoyed an entertaining and informative seminar from  Aileen Brown of CMS. Aileen  first reviewed general trends in the courts’ attitudes to expert evidence, noting a trend towards the acceptance of blurred boundaries between factual evidence and opinion, and who presents what. The courts have also shut-down inappropriate attacks from advocates on the credibility of experts.

She proceeded to review cases illustrating very fact-specific occasions on which experts may decide matters of fact. An expert who presented what was seen as legal argument dressed up as expert opinion fared less well. Other cases reminded attendees of the importance of compliance to Part 35, such as showing calculations and citing tests in full. A US case showed that an expert using AI in drafting a report may be criticised if unable to show they have verified their statements appropriately.

We hope you all enjoyed it and made new contacts and refreshed old ones.

Our next member event is an online session on Conflicts from Hamish Lal on 18^th February.

https://academyofexperts.org/events/conflicts-of-interests-hamish-lal/

TAE is fortunate to have offices in the heart of legal London at 3 Gray’s Inn Square and we’ve always been happy to see  members when they’re in London. The days of regular commutes to London may be a distant memory for many since Covid and  lockdown but TAE is still here and we’d like to remind members that we’re available as a venue for meetings or more informally as a place to work  or relax away from your instructing lawyers.

Formal venue hire can be arranged for our whole suite of rooms, which are ideal for mediations, small arbitrations or expert meetings.  Prices range from  £90 for a half day in our smallest room to £595/day for the full suite. Members receive a 35% discount on room rates.

Details of our rooms, hire charges and additional services are available at https://academyofexperts.org/venue/

If you just need somewhere to pause for an hour two someone’s sure to be around  to put the kettle on (no charge for members!) but our rooms are sometimes fully booked, so  please contact us ahead of time and we’ll let you know if there will be space available.

Members can also use the Gray’s Inn Bridge Bar which is close to TAE for coffee, drinks, lunch or tea and can also lunch in the magnificent Gray’s Inn Hall. Please contact us for details and to book.

Need better instructions?  A warning to lawyers that poor instructions to an expert can lead to unnecessary costs has been given in a recent decision by the Court of Session in Scotland. This is a case involving allegations of misconduct by police investigating a complaint of stalking where the defendants asked for an expert’s report to be struck out as inadmissible. Their first argument was that the expert did not have appropriate expertise because his background was in English rather than Scottish policing, but this was not accepted, not least because the expert had extensive experience and had taken care to reference the appropriate Scottish procedures in his report.

However, under instructions, he had crossed the line in many places in his report from opining on appropriate police conduct to inferring the cause of that conduct, notably ‘malice’ from the evidence. The judge was clear that such findings are highly fact dependent and matters for the court and not an expert. As he said “While I have not excluded the report from probation in its entirety, a redacted version leaving only the passages which can remain would not be as easy to follow. It would plainly be much more sensible and appropriate for a revised report to be prepared, which can seek to include any parts of the current report that do not go beyond the limits of expert evidence. “.

It would obviously have been much better for both parties if the report had been prepared in that way from the outset, making this a useful example for experts who feel they are being asked to go too far. More guidance for lawyers instructing experts is available at https://academyofexperts.org/users-of-experts/instructing-an-expert/

(our feature image is taken from  https://www.scottish-country-dancing-dictionary.com/dance-crib/bluebells-of-scotland.html )

Too bullish to ignore an expert? A cautionary tale from a  costs hearing that clients ignore expert’s opinions at their peril. This was a fairly common story in the IT world, the claimant tried to sell some software to the defendant providing information, demonstrations and (allegedly) the source code. They weren’t successful and some time later the claimant noticed their putative client announcing they were using software that to them seemed very similar, put two and two together and came up with a claim for copyright infringement.

The case has a long and convoluted history but importantly started off as a criminal case in Spain where a court-appointed expert looked at both sets of code and described the software “as operating in a different manner with different programming language and different architecture” and that the allegedly infringing software “was so inferior that it was not created by copying”.

Undeterred the claimant moved to the English courts and pursued various IPR claims but ultimately once their own expert had reviewed the code they discontinued the claim. Which of course meant they were liable for the Defendant’s costs in what Chief Master Shuman described as ‘heavyweight, highly costly commercial litigation’. In a final throw of the dice  they attempted to overturn the usual cost regime by arguing that the Defendant had unnecessarily protracted the litigation. Dismissing the Claimant’s arguments the judge effectively concluded that things had been protracted by the Claimant’s own desire for 100% certainty that their source code had not been copied with a sub-text, though not explicitly stated, that really they should have taken proper note of a clear statement by the Spanish expert that meant their claim was very, very likely to fail.

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2024/3285.html&query=(title:(+trappit+))

Trappit SA & Ors v GBT Travel Services UK Ltd [2024] EWHC 3285 (Ch) (18 December 2024)

 

To kick off 2025 we’re starting a new series of posts about terms and expression used by lawyers that can leave the new expert rather baffled. You may well hear references to the Ikarian Reefer bandied around and wonder what on earth that has to do with medicine, construction, accountancy or science.

On 12 April 1985 a ship called The Ikarian Reefer ran aground on shoals. There was subsequently a court case heard by Mr Justice Cresswell (as he was then). He found some of the evidence presented to him to be unsatisfactory and established principles in his judgement for expert evidence. Essentially he laid out that expert evidence should be

1. independent, uninfluenced, objective and unbiased

2. within the individual’s expertise, with any questions falling beyond that clearly identified

These later formed the basis of the UK civil procedure rules (and others). For more information on the role of an expert see https://academyofexperts.org/practising-as-expert/

(our image is from http://shipspotting.com)