When is an Expert not an expert?

[2009] EWHC 2823 TEDR Volume 14 Issue 3

The Facts

The Appellant (Defendant) was originally prosecuted for environmental offences. All four complaints were dismissed after the close of the Prosecution case.

The Appellant had obtained an Expert’s report. It had been of considerable assistance to the Appellant during cross-examination of the Prosecution witnesses. However, of course, he was never called to give evidence given the case was stopped at half time.

A Defendant’s costs Order was made.

The District Judge went on to consider whether the costs of the Expert’s report were recoverable.

The District Judge considered whether the Expert could be an Expert at all given that he had had a commercial relationship with the Appellant over many years. The commercial relationship had, quite properly, been disclosed within the report which was before the Court and parties. The District Judge raised this issue at the opening of the case although no final determination was made about it then. After various legal submissions, the Judge apparently took the view that, because of the Expert’s connection with the Appellant, his evidence was not admissible and therefore, the costs relating to his evidence should not be allowed.

Secondly, the District Judge considered whether the issue about which he had reported was one for expert evidence at all as opposed to a question of fact and apparently came to the view that expert evidence was not necessary. Accordingly, the costs were not allowed on that basis either.