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)

Take a bow! In our last post before the holiday here’s another selection of quotes about experts who have fulfilled their role and assisted the court. As they should do of course, but positive quotes like these get much less air time than the judicial criticism that appears from time to time.

“She was a valuable witness who was plainly doing her best to assist the Court from a position of independence.”

“He was a fair witness. He answered the questions put to him and did his best to assist the court.”

“I am grateful to all four experts for their contributions to the evidence, which facilitated the agreed technical primer and the very largely agreed statement of the CGK. All four provided me with the technical education the Court required ”

“I am very grateful to all the experts for their evidence and assistance in what I found to be a technologically and conceptually complex case.”

“I found him to be an excellent witness. He communicated his considerable knowledge of gene therapy clearly, addressed the questions asked and answered in a direct manner.“

“He was an impressive witness and I found his evidence to be persuasive. He had obvious expertise in the field. He was able to set out clearly both his methodology and the various inputs into the calculation of the residual valuation of the property. ”

In case you’re wondering our image this week comes from the Broadway Podcast Network https://lnkd.in/e27yM8Yd

Stocking fillers for experts? Strangely enough in all the lists and gift suggestions that appear online and in the press at this time of year you’ll never see a list of suggested gifts for experts. That maybe because the things we most want, like a ban on last minute instructions, prompt payment and clients who always value our every word, are perhaps a little difficult to source.

Instead here are a couple of book suggestions that might interest or entertain you as well as giving an insight into how the legal professionals you work with may view litigation.

Making Decisions Judicially A guide for Decision-Makers by Godfrey Cole, Yvette Genn, Mary Kane, Christopher Lethem, Mark Ockelton, Meleri Tudur and Nickolas Wikeley – for an insight into how judges think and make decisions

Advocacy (The Hamlyn Lectures) David Pannick KC What is advocacy for, how does it work and what will its role be into the future

The Devil’s Advocate by Iain Morley QC A brief but pithy and humorous guide to what advocates need to do in court and how they prepare for cross-examination

 

Grasping the Nettle? For a change not a case that turns on an expert’s performance but a rather dry hearing about a Claimant’s request for summary judgment on whether the Defendant could relay on the original contract or were stuck with just the terms of a settlement agreement. As lawyers often do they resorted to metaphor and urged the judge to “grasp the nettle“ and deal with the issues immediately rather than waiting for a full trial.

Sean O’Sullivan KC, sitting as a Deputy High Court Judge, demonstrated that judges have a sense of humour by remarking that “the fact that there will be cases in which it is right to grasp the nettle does not mean that it is always appropriate for judges on summary judgment applications to don their gardening gloves and set to pulling up the nettles.”, although he did in fact grasp  the nettle, just not in the Claimants favour.

Which is a useful reminder that while an expert’s formal duty is to help the court, what that really means is to help the judge and while counsel are trying to help the judge to reach an answer that favours their client, an expert’s duty is to help them arrive at the right answer with the assistance of objective expert input.

https://www.bailii.org/ew/cases/EWHC/Comm/2024/2728.html

It’s fairly common for experts to be criticised for having exceeded their expertise, not so common for them to be regarded as ‘too expert’. In a recent case involving the valuation of a hotel by an independent expert surveyor the Defendant’s selected an expert witness who reflected their own general expertise but the Claimant (strictly the Pursuer as this was in Scotland) chose an expert with specific and extensive knowledge of the hotel sector.

Unwisely the less experienced expert chose to critique his opposite number’s valuation but as the judge remarked “When challenged, Mr Murphy accepted that, notwithstanding what he had put in his supplementary report, he could not properly criticise Mr Chess’ methodology. Rather to my surprise, at the end of this passage of questioning when it was put to Mr Murphy that what he had done was to “whack out £1.2 million to keep the score down”, his response was “Fair point”.

The judge not surprisingly accepted the more experienced expert’s valuation, confirming that more expertise rather than less is definitely the better option. We’ll leave it you to decide which expert in that story had been too clever for their own good.

Dale House Developments LTD against Brian C Ronnie and Ryden LLP (Court of Session) [2024] CSOH 99 (06 November 2024)