There has been some publicity about a recent case, JSC  Privatbank v Kolomoisky, in which past judicial criticism of an expert were raised, suggesting among other things that experts have a duty to disclose such criticism. Less attention has been paid to the issues that led to the expert’s problems being aired in court.

The expert concerned was a fellow of ICAEW at the time of writing his reports but it transpired that by the time of the hearing he no longer was and more importantly his membership had been ‘Cessated’ and he had been the subject of a severe reprimand in relation to two disciplinary matters in 2023.  None of this information had been disclosed to the other side or to the court.

The judge made it clear that this was a very serious problem, “In my view, where an expert presents his evidence as a member of a professional organisation, which is expected by him to give the court assurance as to his ability to act in the case, he is under a duty to inform the court if his membership has ceased, more particularly where the cessation is linked to disciplinary proceedings against him.  The judges view was that the issue and the way the expert had dealt with it undermined the court’s confidence in his ability to give precedence to his overriding duty to the court when faced with other conflicting interests.

The existence of judicial criticism of the same expert from a case in 2018 was also relevant, and not disclosed, although the judge made no specific points about whether it should have been.

There’s a message here for both experts and their instructing solicitors.

For lawyers it is always worth checking an expert out by verifying their membership and searching for cases where they have been mentioned.  For experts, it really is important to maintain  your professional status and to make sure that if it changes for any reason you update your CV, online profiles and above all any lawyers you’re working with. You can be sure that an assiduous lawyer somewhere will check and even if you have decided to cancel a membership  for your own reasons its better to  say something immediately than find yourself being challenged in court!

 

The Academy is active in working with the judiciary and legal profession to ensure that expert views are taken into account and that members have access to the best possible advice and guidance.

Our 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.

As a member you can also call our Technical Helpline for help and advice on ethical and practical issues from dealing with instructions to getting paid.