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.

Many of us will remember being instructed to show our working in Math exams in the hope of garnering at least some marks for our work even if the eventual answer was way off beam. Simply giving the answer runs the risk of all credit being lost even if its only wrong because of a tiny arithmetical slip.

The same approach is essential for experts, while the courts take note of qualifications and experience in assessing  expert evidence the acid test is whether an expert’s approach to providing an opinion stands up to scrutiny. If the court cannot understand your method then they will be less inclined to take a leap of faith in accepting your answers.

A recent example (Port of Sheerness Ltd v Swire Shipping PTE) involved two experts asked to estimate how long it would take to remove a cargo of plywood from a ship so that the cost of an extended stay in port could be calculated. The judge commented that “The experts were both impressive and well-qualified witnesses. The difference between them was derived from the methodology they employed. Mr Pope employed what I might call a “time and motion” model in which he broke the discharging operation down into its constituent elements and expected durations, making allowance for variable factors. Mr Daniells employed a more general approach based upon experience. “

Despite attempts to criticise the more detailed  approach the answer it gave was closer to contemporaneous estimates and the judge was not persuaded to accept the much higher estimate that was based on a method that was “definitely not a science”. The detailed method had the added benefit of allowing the judge to make a modest adjustment based on issues that emerged during the hearing.

For information and advice on what a expert report should cover see https://academyofexperts.org/users-of-experts/what-is-an-expert-report/

Our picture is from LiberationMath

 

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