Relevance of Expert Evidence to Limitation

[2006] EWHC 1478 (QB) TEDR Volume 11 Issue 1

The Facts

This was a claim between a GNER and its insurance broker (JLT) for a failure by the latter to obtain cover of a particular type. The claim in negligence was admitted by the insurance broker but it asserted that either the claim to damages was time barred under the Limitation Act 1980 or was extinguished by a previous payment in related legal proceedings. The damages being claimed amounted to about £3 million for uninsured losses arising from the derailment of a train due to an engineering/manufacturing defect to the wheel of one of the coaches.

The Issues

The issue of relevant to experts was when the time bar argument should be determine – i.e. pre-trial or at trial.

The Decision

The limitation issue in this case was to be disposed of at trial and not before. This was because “expert evidence as to the relevant practice of insurance brokers was likely to inform and assist the court as to the extent and nature of any continuing duties of JLT in relation ….to the need to obtain an agreed policy wording and provide it to the claimant.” The Court recognised that expert evidence as to the general practice of insurance brokers would be taken into account in appropriate cases. The issue in this case was whether the Defendant owed a continuing duty to the Claimant from the time of renewal of the contract of insurance in March 1998 up to the time of the derailment in June 1998 – plainly expert evidence might assist in relation to that issue by showing the general practice of insurance brokers at the relevant time.

Comment

An unsurprising decision given the desirability of expert evidence on the issue. However it should be noted that in many cases limitation issues focus on matters of law without significant dispute as to the surrounding facts or the necessity for expert evidence – and hence can be dealt with pre-trial. That can often save substantial costs of preparation of the case if the matter can be disposed of at an early stage – and that will generally only apply where there is not a dispute of factual evidence on matters pertinent to the issue of limitation or where expert evidence would be required or helpful to resolve that issue. However where, as in the current case, expert evidence was desirable, it would sometimes be appropriate to await trial for the limitation issue to be resolved.

Crusading expert lacked evidence

[2005] EWHC 920 (TCC) TEDR Volume 11 Issue 1

The Facts

The Claimants in this case sought an order for removal of the Defendant mobile phone company’s mast which, at the time the claim was started, was situated next door to the Claimants’ home.

The Claimants claimed that the mast, by its emissions, had caused harm to their family and dog, and as such were entitled to have it removed. Under the Telecommunications Act 1984, anyone who occupies or has an interest in land can object to the installation of a mast if it materially affects the enjoyment of their land.

By the time of the trial, however, the Claimants had sold their house and no longer had an interest in it.

The Issues

Firstly, whether the Claimants had any standing (locus standi) to seek the order, now that they no longer had an interest in the land; secondly, if they did, was the mast causing the prejudicial effect which they claimed?

The Decision

The Court found against the Claimants on the standing point. Nonetheless, the Court went on to assess the evidence of emissions from the mast, which was in effect a dispute between expert witnesses as to the capability of the mast to cause the symptoms the Claimants complained

of. The Court found that the mast was not capable of causing, and had not caused, the symptoms, and therefore the claim must fail in any event.

The Claimant’s expert was trenchantly criticised for not having been impartial or balanced. He “lacked balance and impartiality in relation to his evidence in this case. He did not adopt the objective approach which the court expects from an expert witness” (at paragraph 74 of the judgment).

Comment

Problems arise when experts become involved in a crusade and in that way an expert transmutes into an advocate for a cause – and that will almost inevitably undermine his evidence and credibility. Whilst one cannot in this case say with any certainty what was the actual reason for the lack of balance and loss of impartiality and objectivity of the expert in this case, the fact that the judge took the view he did must have a major effect on the reliability of that expert in this field in any subsequent case. Judicial criticism in a published case stays with an expert forever and can (and often will) have a major and potentially devastating effect on his career.

The effect of not stipulating the expert by name

[2005] EWCA Civ 236 TEDR Volume 11 Issue 1

The Facts

This was a claim for damages for breach of a covenant of quiet enjoyment. Liability had been established and the remaining issue was assessment of damages.

At a case management conference the judge had given both parties permission to instruct an expert each in the area of restaurant valuation. The Defendant instructed an expert who visited the Claimant’s premises, but shortly afterwards a second expert attempted to inspect the premises. The Defendant had decided he did not wish to rely on the first expert (having seen his ‘draft interim’ report) and had instructed a second expert.

The Claimant applied for an order that the Defendant be barred from relying on the second expert report, and to have the first expert’s report disclosed.

At first instance the judge found that the Defendant did not have permission to instruct the second expert; he needed permission in order to so rely; but that he would give permission on condition that the first report be disclosed to the Claimant’s solicitors.

The Issues

Whether it was correct that the Claimant had needed permission to call a second expert; and if he did need that permission, whether giving it on condition of disclosing the first report was lawful.

The Decision

Relying on the unreported case of Beck v MoD [2003] EWCA 1043, the Court of Appeal held that if permission had been required under the terms of the order, it was lawful and proper for that permission to have been granted conditional upon the disclosure of the first report – “Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it” (at paragraph 29 of the judgment).

However, on the issue of whether permission had, in the instant case, been required, the court found that it had not, and so allowed the appeal. What the court said as to this is instructive and is quoted below:

14. Mr Clarke’s submission is quite simple. He draws attention to the fact that CPR 35.4(3) provides that permission to call an expert or put in evidence an expert’s report shall be in relation to “the expert named or the field identified”. In the present case, there can be no doubt that the order did not identify a named expert; it identified the field of expertise of the expert for whom permission was given. If the order had named Mr Watson, Mr Clarke concedes that the defendant would have had to apply to the court for permission to rely on Mr Negus. It cannot be argued that the order was not correctly drawn, nor was it so argued before the judge. The order followed the wording of the draft agreed between counsel and submitted to the associate after the conclusion of the case management conference.

16. The judge seems to have construed the order as giving the defendant permission to rely on the evidence of Mr Watson, but in our judgment the order plainly and unequivocally identifies the experts only by their field of expertise. Moreover, we cannot accept the submission that there was an accidental slip or error here. The terms of the order were agreed by counsel. Despite the details given by Mr Christou about Mr Watson and his rates of charging, it is not surprising that the parties agreed, and the judge approved, an order giving the defendant permission to rely on an expert in Mr Watson’s field of expertise, rather than on Mr Watson by name. An order giving the defendant permission to rely on an expert in Mr Watson’s field would have served his purposes just as well. The significance of giving the details of Mr Watson’s expertise could have been no more than evidence of the fact that there are experts in this field.  The relevance of Mr Christou’s evidence of charging rates was not only to indicate that Mr Watson’s rates were reasonable and not disproportionate, but also to show that, if the claimant were to instruct an expert, his or her fees were also likely to be reasonable and proportionate.

17. Even if it had been made explicitly clear that the defendant was asking for permission to rely on the evidence of Mr Watson, it would not have been perverse to make an order simply giving permission to rely on one expert in the field of restaurant valuation and profitability (ie the expertise of Mr Watson). The mere fact that such an order was made in that situation would not, of itself, suggest that the order was an accidental slip on the grounds that it did not give effect to the intention of the judge who made the order.

18. We do not find it at all surprising that the order did not identify the name of the expert who could be relied on by the defendant in circumstances where he could not do the same in relation to the claimant. It would have been possible to make an order giving the defendant permission to call and rely on the report of Mr Watson, and giving the claimant permission to call and rely on the report of an unnamed expert in the field of restaurant valuation and profitability. But that would have been an unusual order to make. Judge Levy may well have taken the view that, if he could not restrict the claimant to a named expert, then it would not be right to restrict the defendant to a named expert. In these circumstances, we find it impossible to hold that the failure to name Mr Watson in the order of 21 July was an accidental slip.

The discretion to allow further Expert Evidence to be obtained

[2007] UKEAT 0196_07_1810 TEDR Volume 12 Issue 3

The Facts

The proceedings consist of a claim presented to the Employment Tribunal on 30th November 2005 by Ms Stevenson against her employers, MDDC, in which she complains of unfair dismissal, disability discrimination and failure, in breach of contract, to pay medical expenses which she has incurred. The only disability referred to in the claim form was “a back injury”.

MDDC disputed that Ms Stevenson was disabled and that the dismissal was unfair or discriminatory. Their case is that Ms Stevenson had been off work for ill health from May 2004, that by July 2005 she still appeared to be unable to work in any capacity and that she had been fairly dismissed for incapability.

In March 2006 the Tribunal, at a Case Management Discussion (“CMD”) made a number of directions including that: the case be listed for a full hearing of all issues, the parties would jointly instruct a medical expert and if a joint expert could not be agreed the Tribunal would give further consideration to the medical evidence. A hearing date was fixed.

The parties jointly instructed a consultant neurologist, Dr Gibson. He did not see Ms Stevenson until 11th July; no reasons for that delay have been put before me. His report is dated 2nd August. He concluded that since a fall in May 2004, Ms Stevenson had been functionally incapacitated but that her continuing symptoms were not organic and were probably psychologically. He made reference to a chronic depressive state. The hearing date had to be re-fixed, for 14 November; this delay reflected no blame on MDDC.

On 28th September 2006 Ms Stevenson’s solicitors wrote to MDDC putting forward, for the first time, chronic depression as Ms Stevenson’s disability and saying:

“It seems to us that more medical evidence on this aspect of our client’s condition is required in order to fulfil the overriding objective of the Tribunal proceedings. We are now seeking to jointly instruct a consultant psychiatrist in order to secure the relevant information for the Tribunal. It is a matter for you as to whether or not you wish to jointly instruct such an expert and share the costs or whether you will seek to rely on an expert whom we shall otherwise instruct on the Claimant’s behalf.”

That letter was clearly an invitation to MDDC to agree the joint instruction of a joint psychiatrist. It gave an indication that, if separate experts were to be relied upon, a costs order might be sought. MDDC’s solicitor understood from that letter that it was accepted on behalf of Ms Stevenson that, if a joint appointment was not agreed, each party would be able to instruct its own expert. It is possible that Ms Stevenson’s solicitors were seeking, by threat of costs, to persuade MDDC to agree a joint instruction; but they did not shut the door on MDDC instructing its own expert.

At that stage there had been no attempt to amend the claim form. The hearing was just six weeks away. MDDC replied by return saying that Ms Stevenson’s case was that her disability consisted of a back injury, which case was unsupported by medical evidence. They accordingly declined to agree a joint psychiatric report.

Ms Stevenson’s solicitors did not apply to the Tribunal for an order that there should be a joint appointment or, at that stage, for leave to amend the claim form. Instead they obtained a psychiatric report from Dr Lynch, dated 12th October 2006. His report refers to complex matters of causation and the interrelationship between symptoms of pain and other matters and psychiatric illness. His general conclusion was as follows:

“I would therefore support based on recent findings and available information, a diagnosis of depressive episode (single episode) of mild to moderate severity with marked anxiety features. I suspect that this is fluctuated in its intensity (sic) and severity and maybe affected by stress and Ms Stevenson’s experience of pain and physical discomfort.”

Ms Stevenson’s solicitors then, with less than a month to go before the hearing, applied for leave to amend her claim by adding depression as a disability.

MDDC opposed the application on the basis that it was made too late. As a result there was a further CMD on 1st November 2006, on that occasion before a different Chairman. He gave leave to Ms Stevenson to amend the claim, as sought. He further ordered that the hearing date be vacated; he did not fix a new date but adjourned the CMD for 4 weeks, to be resumed on a day to be notified.

The Decision of the Chairman of the Employment Tribunal which was later appealed to the Employment Appeal Tribunal (“the EAT”)

“(1) As a matter of case management expert evidence should be limited to that which is reasonably required to resolve an issue. That is an approach supported by the CPR. Ultimately I was not satisfied that any further expert evidence was reasonably required to determine the issue of whether or not in relation o impairment the respondent was or was not a disabled person under the DDA.

(2) The respondent bears the burden of proving that she is disabled in relation to mental impairment. It is therefore for the respondent to bring forward the relevant evidence to discharge that burden.

(3) The respondent had produced the report of the expert that she had instructed and upon whose report she wished to rely in discharging that burden. The appellant had made no suggestion that there was any lack of legitimacy in Dr Lynch’s approach, professional qualifications or ability to have prepared such a report nor was there any suggestion from the appellant that there was any irregularity in the way in which he had been instructed to prepare his report by the respondent’s representative. Therefore on its face Dr Lynch’s report appeared to be an entirely valid professional opinion upon which the respondent was entitled to rely in discharging the burden of proving that she was disabled.

(4) The appellant had rejected an early opportunity offered to it by the respondent to jointly instruct an expert on the question of mental impairment and although I accept that this opportunity was offered before the respondent was given leave to amend her claim to include one of mental impairment I considered it relevant that the appellant did not seek to raise the issue of wanting to instruct its own expert until a late stage following the receipt of Dr Lynch’s report and the addendum to it consequent upon the appellant’s written questions. It was my judgment that to accede to the appellant’s request to now instruct another expert would necessarily create delay. I could not identify any reason to create that delay.

(5) The appellant, had been given an opportunity of asking questions of the. expert following the Case Management Discussion on the 1st November. That is an approach which is consistent with the CPR.

(6) I was satisfied that the appellant’s request to instruct a further expert was simply as a consequence of it wanting to have an opportunity to find another expert who may hold a different professional view to that of Dr Lynch. This is supported in their letter to the tribunal of the 24 January “I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter.” However the appellant provided no basis upon which it should be given an opportunity to find such another expert as no argument was advanced to call into question the legitimacy of the professional view expressed by Dr Lynch. I accepted that it is likely to be possible to find an expert in any field who might disagree with a view expressed by a different expert. That however did not create a situation in which there was any necessity in all of the circumstances of this case to allow the appellant that opportunity.

(7) I also took into account the overriding objective of dealing with matters expeditiously and fairly. I was conscious of the fact that this claim was now relatively old. It had been presented in November 2005. It is undesirable to allow cases to not be brought on for hearing expeditiously although I accept there are often reasons where matters need to be delayed. I saw not reasons here for any further delay. I could discern no unfairness to the appellant for the reasons I already stated. The right opportunities had been offered to the appellant to play an appropriate role in the commissioning of the expert evidence and it was my judgment that acceding to the appellant’s request to nonetheless go on now to instruct a further expert would create a delay that was not necessary.

(8) It seemed unlikely to me that it was indicated to the appellant on the 1st November 2006 that as is stated by them in their Notice of Appeal they were’ given permission to instruct their own expert if necessary after Dr Lynch had answered questions put to him by the appellant. I formed this view from the Chairman’s notes which comprehensively record a discussion on all matters that are reflected in the Case Management Order issued by him and further record the reason for the adjournment being to allow the appellant an opportunity to ask questions of Dr Lynch. They make no reference to leave being given to the appellant to thereafter instruct a further expert. Further the respondent’s solicitor confirmed to me that he had no recollection of anything more than that the adjournment would be given to allow the appellant an opportunity to ask questions of Dr Lynch. However in this regard I can only rely upon the note and the respondent’s solicitor’s recollection as I was myself not present at that Case Management Discussion.”

The Reasoning and Decision on an Appeal against the above Decision made by the Employment Appeal Tribunal

The Chairman of the Employment Tribunal referred to the overriding objective at only one point in her reasons, in the context of delay; but the principal aim is that cases should be dealt with justly; and that includes, so far as is practicable, that the parties should be on an equal footing.

MDDC had been invited to agree to join to the joint instruction of a psychiatric expert at a time when Ms Stevenson’s claim had not been put forward on the basis of mental impairment; no application had been made to amend the claim form or for an order for a joint report before Dr Lynch was instructed; and, by the time an application to amend was made,

Ms Stevenson already had her own psychiatric expert (Dr Lynch) on who she wished to rely.

MDDC were not obliged to accept Dr Lynch’s report and were entitled to take reasonable steps to challenge and dispute his conclusions. It was not unreasonable for MDDC to seek by medical evidence to persuade the Tribunal to the view that Dr Lynch was mistaken and that there was no disability arising from mental impairment.

Only by allowing MDDC to seek to adduce such evidence to challenge that of Dr Lynch could the Tribunal comply with the overriding objective of dealing with the case justly and ensuring that the parties were on an equal footing.

Unless MDDC had conducted the litigation in some way which rendered it unreasonable for them to seek to dispute Dr Lynch’s evidence or if there were no basis on which Dr Lynch’s evidence could sensibly be disputed, it could not be just to deprive them of the opportunity to do so.

The Chairman failed to take into account the Overriding Objective’s emphasis on dealing with the case justly and even-handedly. The fact that Ms Stevenson had that burden of proof and therefore had to adduce relevant evidence to discharge it is not of itself a relevant reason for declining to permit the opposing party to call expert evidence in order to dispute the expert evidence by which the Claimant seeks to discharge that burden.

If a Tribunal concludes that a party has so conducted itself in relation to the deployment of its own medical expert as to make it unreasonable for that party to be permitted to call that expert, then of course it is open to the Tribunal to refuse to allow that evidence; and if a Tribunal properly concludes that the opposing party has no real basis on which to seek to challenge the evidence of the party which bears the burden of proof, then again it is open to the Tribunal to refuse such permission.  That however was not the case here.

It seems that the Chairman took the view that MDDC had behaved unreasonably in seeking to obtain permission from an expert witness at the stage at which proceedings had reached when before her.

That criticism was unjustified as the chronology showed.

At the CMD which followed 2 weeks after Dr Lynch’s report, MDDC were wholly entitled and acted in accordance with good practice in seeking directions so as to ask questions of Dr Lynch. There was no suggestion that MDDC pursued questions to Dr Lynch as an alternative to calling their own expert. If that had been the case, there would have been no reason to have adjourned the CMD; it must inescapably have been in the minds of all concerned at that hearing that, if the answers to the questions were satisfactory to MDDC, no further issue as to medical evidence might arise but that, if those answers were not satisfactory, MDDC would or at least might wish to seek to adduce their own expert evidence. Were that not so … would not adjourned the CMD but instead would have fixed a date for a substantive hearing. As it turned out, the answers to the questions did not satisfy MDDC; and MDDC without delay re-listed the CMD in order to seek a direction for expert evidence.

The judge found that no reasonable Tribunal could take the view that MDDC had behaved unreasonably in delaying seeking their own expert until after the answers to the questions had been considered.

In her reasons the Chairman stated that MDDC’s case did not involve any attack on the legitimacy of Dr Lynch’s approach or his professional qualifications or ability and did not suggest any irregularity in the way in which he had been instructed.

However, it is not necessary for a party who wishes to dispute the conclusions of an expert and to do so by calling an expert of his own to demonstrate that his opponent’s expert has adopted an illegitimate approach, has insufficient qualifications or ability or has been irregularly instructed. He may do so by calling an expert who, reaches an alternative conclusion. The Tribunal then has to choose between the two expert opinions. There is no criticism properly to be made of a party who wishes to dispute the expert evidence of the other party in that way.

In the factual context in which the issue of psychiatric evidence arose, MDDC suspected malingering and, as they were entitled to do, did not accept Dr Lynch’s conclusions. There was no history of mental illness; and Dr Lynch’s opinions could fairly be said to be open to dispute.The answers given by Dr Lynch disclose an apparent change of mind as to the onset of depressive symptoms – from April 2005 to November 2004 – and are lengthy and complex and might be said not altogether to answer all the questions posed. Dr Lynch accepted that there might be different views as to the aetiology of Ms Stevenson’s experience of back pain and her psychological symptoms.

It could not in these circumstances be said that there was no basis for a challenge to Ms Stevenson’s assertion that she suffered from a disability arising from mental impairment, which challenge did not depend upon the lines of attack referred to by the Chairman in her reasons.

In her reasons the Chairman based her decision on whether it was necessary to allow MDDC to have the opportunity to challenge Dr Lynch; earlier she said that she had been guided by CPR 35.1; in her reasons she referred to “necessity”. Necessity was not the appropriate test. The judge rejected the views of the Chairman on the issue of current and future delay as being primarily the responsibility of MDDC.

For the above reasons the appeal was allowed and the court made directions itself on the basis that each party considered it was in as good a position to do so as the tribunal. Not surprisingly it granted directions permitting the calling of an expert who would in essence provide rebuttal evidence.

The Issues

The proceedings consist of a claim presented to the Employment Tribunal on 30th November 2005 by Ms Stevenson against her employers, MDDC, in which she complains of unfair dismissal, disability discrimination and failure, in breach of contract, to pay medical expenses which she has incurred. The only disability referred to in the claim form was “a back injury”.

MDDC disputed that Ms Stevenson was disabled and that the dismissal was unfair or discriminatory. Their case is that Ms Stevenson had been off work for ill health from May 2004, that by July 2005 she still appeared to be unable to work in any capacity and that she had been fairly dismissed for incapability.

In March 2006 the Tribunal, at a Case Management Discussion (“CMD”) made a number of directions including that: the case be listed for a full hearing of all issues, the parties would jointly instruct a medical expert and if a joint expert could not be agreed the Tribunal would give further consideration to the medical evidence. A hearing date was fixed.

The parties jointly instructed a consultant neurologist, Dr Gibson. He did not see Ms Stevenson until 11th July; no reasons for that delay have been put before me. His report is dated 2nd August. He concluded that since a fall in May 2004, Ms Stevenson had been functionally incapacitated but that her continuing symptoms were not organic and were probably psychologically. He made reference to a chronic depressive state. The hearing date had to be re-fixed, for 14 November; this delay reflected no blame on MDDC.

On 28th September 2006 Ms Stevenson’s solicitors wrote to MDDC putting forward, for the first time, chronic depression as Ms Stevenson’s disability and saying:

“It seems to us that more medical evidence on this aspect of our client’s condition is required in order to fulfil the overriding objective of the Tribunal proceedings. We are now seeking to jointly instruct a consultant psychiatrist in order to secure the relevant information for the Tribunal. It is a matter for you as to whether or not you wish to jointly instruct such an expert and share the costs or whether you will seek to rely on an expert whom we shall otherwise instruct on the Claimant’s behalf.”

That letter was clearly an invitation to MDDC to agree the joint instruction of a joint psychiatrist. It gave an indication that, if separate experts were to be relied upon, a costs order might be sought. MDDC’s solicitor understood from that letter that it was accepted on behalf of Ms Stevenson that, if a joint appointment was not agreed, each party would be able to instruct its own expert. It is possible that Ms Stevenson’s solicitors were seeking, by threat of costs, to persuade MDDC to agree a joint instruction; but they did not shut the door on MDDC instructing its own expert.

At that stage there had been no attempt to amend the claim form. The hearing was just six weeks away. MDDC replied by return saying that Ms Stevenson’s case was that her disability consisted of a back injury, which case was unsupported by medical evidence. They accordingly declined to agree a joint psychiatric report.

Ms Stevenson’s solicitors did not apply to the Tribunal for an order that there should be a joint appointment or, at that stage, for leave to amend the claim form. Instead they obtained a psychiatric report from Dr Lynch, dated 12th October 2006. His report refers to complex matters of causation and the interrelationship between symptoms of pain and other matters and psychiatric illness. His general conclusion was as follows:

“I would therefore support based on recent findings and available information, a diagnosis of depressive episode (single episode) of mild to moderate severity with marked anxiety features. I suspect that this is fluctuated in its intensity (sic) and severity and maybe affected by stress and Ms Stevenson’s experience of pain and physical discomfort.”

Ms Stevenson’s solicitors then, with less than a month to go before the hearing, applied for leave to amend her claim by adding depression as a disability.

MDDC opposed the application on the basis that it was made too late. As a result there was a further CMD on 1st November 2006, on that occasion before a different Chairman. He gave leave to Ms Stevenson to amend the claim, as sought. He further ordered that the hearing date be vacated; he did not fix a new date but adjourned the CMD for 4 weeks, to be resumed on a day to be notified.

The Decision of the Chairman of the Employment Tribunal which was later appealed to the Employment Appeal Tribunal (“the EAT”)

“(1) As a matter of case management expert evidence should be limited to that which is reasonably required to resolve an issue. That is an approach supported by the CPR. Ultimately I was not satisfied that any further expert evidence was reasonably required to determine the issue of whether or not in relation o impairment the respondent was or was not a disabled person under the DDA.

(2) The respondent bears the burden of proving that she is disabled in relation to mental impairment. It is therefore for the respondent to bring forward the relevant evidence to discharge that burden.

(3) The respondent had produced the report of the expert that she had instructed and upon whose report she wished to rely in discharging that burden. The appellant had made no suggestion that there was any lack of legitimacy in Dr Lynch’s approach, professional qualifications or ability to have prepared such a report nor was there any suggestion from the appellant that there was any irregularity in the way in which he had been instructed to prepare his report by the respondent’s representative. Therefore on its face Dr Lynch’s report appeared to be an entirely valid professional opinion upon which the respondent was entitled to rely in discharging the burden of proving that she was disabled.

(4) The appellant had rejected an early opportunity offered to it by the respondent to jointly instruct an expert on the question of mental impairment and although I accept that this opportunity was offered before the respondent was given leave to amend her claim to include one of mental impairment I considered it relevant that the appellant did not seek to raise the issue of wanting to instruct its own expert until a late stage following the receipt of Dr Lynch’s report and the addendum to it consequent upon the appellant’s written questions. It was my judgment that to accede to the appellant’s request to now instruct another expert would necessarily create delay. I could not identify any reason to create that delay.

(5) The appellant, had been given an opportunity of asking questions of the. expert following the Case Management Discussion on the 1st November. That is an approach which is consistent with the CPR.

(6) I was satisfied that the appellant’s request to instruct a further expert was simply as a consequence of it wanting to have an opportunity to find another expert who may hold a different professional view to that of Dr Lynch. This is supported in their letter to the tribunal of the 24 January “I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter.” However the appellant provided no basis upon which it should be given an opportunity to find such another expert as no argument was advanced to call into question the legitimacy of the professional view expressed by Dr Lynch. I accepted that it is likely to be possible to find an expert in any field who might disagree with a view expressed by a different expert. That however did not create a situation in which there was any necessity in all of the circumstances of this case to allow the appellant that opportunity.

(7) I also took into account the overriding objective of dealing with matters expeditiously and fairly. I was conscious of the fact that this claim was now relatively old. It had been presented in November 2005. It is undesirable to allow cases to not be brought on for hearing expeditiously although I accept there are often reasons where matters need to be delayed. I saw not reasons here for any further delay. I could discern no unfairness to the appellant for the reasons I already stated. The right opportunities had been offered to the appellant to play an appropriate role in the commissioning of the expert evidence and it was my judgment that acceding to the appellant’s request to nonetheless go on now to instruct a further expert would create a delay that was not necessary.

(8) It seemed unlikely to me that it was indicated to the appellant on the 1st November 2006 that as is stated by them in their Notice of Appeal they were’ given permission to instruct their own expert if necessary after Dr Lynch had answered questions put to him by the appellant. I formed this view from the Chairman’s notes which comprehensively record a discussion on all matters that are reflected in the Case Management Order issued by him and further record the reason for the adjournment being to allow the appellant an opportunity to ask questions of Dr Lynch. They make no reference to leave being given to the appellant to thereafter instruct a further expert. Further the respondent’s solicitor confirmed to me that he had no recollection of anything more than that the adjournment would be given to allow the appellant an opportunity to ask questions of Dr Lynch. However in this regard I can only rely upon the note and the respondent’s solicitor’s recollection as I was myself not present at that Case Management Discussion.”

The Reasoning and Decision on an Appeal against the above Decision made by the Employment Appeal Tribunal

The Chairman of the Employment Tribunal referred to the overriding objective at only one point in her reasons, in the context of delay; but the principal aim is that cases should be dealt with justly; and that includes, so far as is practicable, that the parties should be on an equal footing.

MDDC had been invited to agree to join to the joint instruction of a psychiatric expert at a time when Ms Stevenson’s claim had not been put forward on the basis of mental impairment; no application had been made to amend the claim form or for an order for a joint report before Dr Lynch was instructed; and, by the time an application to amend was made,

Ms Stevenson already had her own psychiatric expert (Dr Lynch) on who she wished to rely.

MDDC were not obliged to accept Dr Lynch’s report and were entitled to take reasonable steps to challenge and dispute his conclusions. It was not unreasonable for MDDC to seek by medical evidence to persuade the Tribunal to the view that Dr Lynch was mistaken and that there was no disability arising from mental impairment.

Only by allowing MDDC to seek to adduce such evidence to challenge that of Dr Lynch could the Tribunal comply with the overriding objective of dealing with the case justly and ensuring that the parties were on an equal footing.

Unless MDDC had conducted the litigation in some way which rendered it unreasonable for them to seek to dispute Dr Lynch’s evidence or if there were no basis on which Dr Lynch’s evidence could sensibly be disputed, it could not be just to deprive them of the opportunity to do so.

The Chairman failed to take into account the Overriding Objective’s emphasis on dealing with the case justly and even-handedly. The fact that Ms Stevenson had that burden of proof and therefore had to adduce relevant evidence to discharge it is not of itself a relevant reason for declining to permit the opposing party to call expert evidence in order to dispute the expert evidence by which the Claimant seeks to discharge that burden.

If a Tribunal concludes that a party has so conducted itself in relation to the deployment of its own medical expert as to make it unreasonable for that party to be permitted to call that expert, then of course it is open to the Tribunal to refuse to allow that evidence; and if a Tribunal properly concludes that the opposing party has no real basis on which to seek to challenge the evidence of the party which bears the burden of proof, then again it is open to the Tribunal to refuse such permission.  That however was not the case here.

It seems that the Chairman took the view that MDDC had behaved unreasonably in seeking to obtain permission from an expert witness at the stage at which proceedings had reached when before her.

That criticism was unjustified as the chronology showed.

At the CMD which followed 2 weeks after Dr Lynch’s report, MDDC were wholly entitled and acted in accordance with good practice in seeking directions so as to ask questions of Dr Lynch. There was no suggestion that MDDC pursued questions to Dr Lynch as an alternative to calling their own expert. If that had been the case, there would have been no reason to have adjourned the CMD; it must inescapably have been in the minds of all concerned at that hearing that, if the answers to the questions were satisfactory to MDDC, no further issue as to medical evidence might arise but that, if those answers were not satisfactory, MDDC would or at least might wish to seek to adduce their own expert evidence. Were that not so … would not adjourned the CMD but instead would have fixed a date for a substantive hearing. As it turned out, the answers to the questions did not satisfy MDDC; and MDDC without delay re-listed the CMD in order to seek a direction for expert evidence.

The judge found that no reasonable Tribunal could take the view that MDDC had behaved unreasonably in delaying seeking their own expert until after the answers to the questions had been considered.

In her reasons the Chairman stated that MDDC’s case did not involve any attack on the legitimacy of Dr Lynch’s approach or his professional qualifications or ability and did not suggest any irregularity in the way in which he had been instructed.

However, it is not necessary for a party who wishes to dispute the conclusions of an expert and to do so by calling an expert of his own to demonstrate that his opponent’s expert has adopted an illegitimate approach, has insufficient qualifications or ability or has been irregularly instructed. He may do so by calling an expert who, reaches an alternative conclusion. The Tribunal then has to choose between the two expert opinions. There is no criticism properly to be made of a party who wishes to dispute the expert evidence of the other party in that way.

In the factual context in which the issue of psychiatric evidence arose, MDDC suspected malingering and, as they were entitled to do, did not accept Dr Lynch’s conclusions. There was no history of mental illness; and Dr Lynch’s opinions could fairly be said to be open to dispute.The answers given by Dr Lynch disclose an apparent change of mind as to the onset of depressive symptoms – from April 2005 to November 2004 – and are lengthy and complex and might be said not altogether to answer all the questions posed. Dr Lynch accepted that there might be different views as to the aetiology of Ms Stevenson’s experience of back pain and her psychological symptoms.

It could not in these circumstances be said that there was no basis for a challenge to Ms Stevenson’s assertion that she suffered from a disability arising from mental impairment, which challenge did not depend upon the lines of attack referred to by the Chairman in her reasons.

In her reasons the Chairman based her decision on whether it was necessary to allow MDDC to have the opportunity to challenge Dr Lynch; earlier she said that she had been guided by CPR 35.1; in her reasons she referred to “necessity”. Necessity was not the appropriate test. The judge rejected the views of the Chairman on the issue of current and future delay as being primarily the responsibility of MDDC.

For the above reasons the appeal was allowed and the court made directions itself on the basis that each party considered it was in as good a position to do so as the tribunal. Not surprisingly it granted directions permitting the calling of an expert who would in essence provide rebuttal evidence.

The Decision

The proceedings consist of a claim presented to the Employment Tribunal on 30th November 2005 by Ms Stevenson against her employers, MDDC, in which she complains of unfair dismissal, disability discrimination and failure, in breach of contract, to pay medical expenses which she has incurred. The only disability referred to in the claim form was “a back injury”.

MDDC disputed that Ms Stevenson was disabled and that the dismissal was unfair or discriminatory. Their case is that Ms Stevenson had been off work for ill health from May 2004, that by July 2005 she still appeared to be unable to work in any capacity and that she had been fairly dismissed for incapability.

In March 2006 the Tribunal, at a Case Management Discussion (“CMD”) made a number of directions including that: the case be listed for a full hearing of all issues, the parties would jointly instruct a medical expert and if a joint expert could not be agreed the Tribunal would give further consideration to the medical evidence. A hearing date was fixed.

The parties jointly instructed a consultant neurologist, Dr Gibson. He did not see Ms Stevenson until 11th July; no reasons for that delay have been put before me. His report is dated 2nd August. He concluded that since a fall in May 2004, Ms Stevenson had been functionally incapacitated but that her continuing symptoms were not organic and were probably psychologically. He made reference to a chronic depressive state. The hearing date had to be re-fixed, for 14 November; this delay reflected no blame on MDDC.

On 28th September 2006 Ms Stevenson’s solicitors wrote to MDDC putting forward, for the first time, chronic depression as Ms Stevenson’s disability and saying:

“It seems to us that more medical evidence on this aspect of our client’s condition is required in order to fulfil the overriding objective of the Tribunal proceedings. We are now seeking to jointly instruct a consultant psychiatrist in order to secure the relevant information for the Tribunal. It is a matter for you as to whether or not you wish to jointly instruct such an expert and share the costs or whether you will seek to rely on an expert whom we shall otherwise instruct on the Claimant’s behalf.”

That letter was clearly an invitation to MDDC to agree the joint instruction of a joint psychiatrist. It gave an indication that, if separate experts were to be relied upon, a costs order might be sought. MDDC’s solicitor understood from that letter that it was accepted on behalf of Ms Stevenson that, if a joint appointment was not agreed, each party would be able to instruct its own expert. It is possible that Ms Stevenson’s solicitors were seeking, by threat of costs, to persuade MDDC to agree a joint instruction; but they did not shut the door on MDDC instructing its own expert.

At that stage there had been no attempt to amend the claim form. The hearing was just six weeks away. MDDC replied by return saying that Ms Stevenson’s case was that her disability consisted of a back injury, which case was unsupported by medical evidence. They accordingly declined to agree a joint psychiatric report.

Ms Stevenson’s solicitors did not apply to the Tribunal for an order that there should be a joint appointment or, at that stage, for leave to amend the claim form. Instead they obtained a psychiatric report from Dr Lynch, dated 12th October 2006. His report refers to complex matters of causation and the interrelationship between symptoms of pain and other matters and psychiatric illness. His general conclusion was as follows:

“I would therefore support based on recent findings and available information, a diagnosis of depressive episode (single episode) of mild to moderate severity with marked anxiety features. I suspect that this is fluctuated in its intensity (sic) and severity and maybe affected by stress and Ms Stevenson’s experience of pain and physical discomfort.”

Ms Stevenson’s solicitors then, with less than a month to go before the hearing, applied for leave to amend her claim by adding depression as a disability.

MDDC opposed the application on the basis that it was made too late. As a result there was a further CMD on 1st November 2006, on that occasion before a different Chairman. He gave leave to Ms Stevenson to amend the claim, as sought. He further ordered that the hearing date be vacated; he did not fix a new date but adjourned the CMD for 4 weeks, to be resumed on a day to be notified.

The Decision of the Chairman of the Employment Tribunal which was later appealed to the Employment Appeal Tribunal (“the EAT”)

“(1) As a matter of case management expert evidence should be limited to that which is reasonably required to resolve an issue. That is an approach supported by the CPR. Ultimately I was not satisfied that any further expert evidence was reasonably required to determine the issue of whether or not in relation o impairment the respondent was or was not a disabled person under the DDA.

(2) The respondent bears the burden of proving that she is disabled in relation to mental impairment. It is therefore for the respondent to bring forward the relevant evidence to discharge that burden.

(3) The respondent had produced the report of the expert that she had instructed and upon whose report she wished to rely in discharging that burden. The appellant had made no suggestion that there was any lack of legitimacy in Dr Lynch’s approach, professional qualifications or ability to have prepared such a report nor was there any suggestion from the appellant that there was any irregularity in the way in which he had been instructed to prepare his report by the respondent’s representative. Therefore on its face Dr Lynch’s report appeared to be an entirely valid professional opinion upon which the respondent was entitled to rely in discharging the burden of proving that she was disabled.

(4) The appellant had rejected an early opportunity offered to it by the respondent to jointly instruct an expert on the question of mental impairment and although I accept that this opportunity was offered before the respondent was given leave to amend her claim to include one of mental impairment I considered it relevant that the appellant did not seek to raise the issue of wanting to instruct its own expert until a late stage following the receipt of Dr Lynch’s report and the addendum to it consequent upon the appellant’s written questions. It was my judgment that to accede to the appellant’s request to now instruct another expert would necessarily create delay. I could not identify any reason to create that delay.

(5) The appellant, had been given an opportunity of asking questions of the. expert following the Case Management Discussion on the 1st November. That is an approach which is consistent with the CPR.

(6) I was satisfied that the appellant’s request to instruct a further expert was simply as a consequence of it wanting to have an opportunity to find another expert who may hold a different professional view to that of Dr Lynch. This is supported in their letter to the tribunal of the 24 January “I consider that another expert may take a different view and therefore I seek leave to instruct a psychiatrist in this matter.” However the appellant provided no basis upon which it should be given an opportunity to find such another expert as no argument was advanced to call into question the legitimacy of the professional view expressed by Dr Lynch. I accepted that it is likely to be possible to find an expert in any field who might disagree with a view expressed by a different expert. That however did not create a situation in which there was any necessity in all of the circumstances of this case to allow the appellant that opportunity.

(7) I also took into account the overriding objective of dealing with matters expeditiously and fairly. I was conscious of the fact that this claim was now relatively old. It had been presented in November 2005. It is undesirable to allow cases to not be brought on for hearing expeditiously although I accept there are often reasons where matters need to be delayed. I saw not reasons here for any further delay. I could discern no unfairness to the appellant for the reasons I already stated. The right opportunities had been offered to the appellant to play an appropriate role in the commissioning of the expert evidence and it was my judgment that acceding to the appellant’s request to nonetheless go on now to instruct a further expert would create a delay that was not necessary.

(8) It seemed unlikely to me that it was indicated to the appellant on the 1st November 2006 that as is stated by them in their Notice of Appeal they were’ given permission to instruct their own expert if necessary after Dr Lynch had answered questions put to him by the appellant. I formed this view from the Chairman’s notes which comprehensively record a discussion on all matters that are reflected in the Case Management Order issued by him and further record the reason for the adjournment being to allow the appellant an opportunity to ask questions of Dr Lynch. They make no reference to leave being given to the appellant to thereafter instruct a further expert. Further the respondent’s solicitor confirmed to me that he had no recollection of anything more than that the adjournment would be given to allow the appellant an opportunity to ask questions of Dr Lynch. However in this regard I can only rely upon the note and the respondent’s solicitor’s recollection as I was myself not present at that Case Management Discussion.”

The Reasoning and Decision on an Appeal against the above Decision made by the Employment Appeal Tribunal

The Chairman of the Employment Tribunal referred to the overriding objective at only one point in her reasons, in the context of delay; but the principal aim is that cases should be dealt with justly; and that includes, so far as is practicable, that the parties should be on an equal footing.

MDDC had been invited to agree to join to the joint instruction of a psychiatric expert at a time when Ms Stevenson’s claim had not been put forward on the basis of mental impairment; no application had been made to amend the claim form or for an order for a joint report before Dr Lynch was instructed; and, by the time an application to amend was made,

Ms Stevenson already had her own psychiatric expert (Dr Lynch) on who she wished to rely.

MDDC were not obliged to accept Dr Lynch’s report and were entitled to take reasonable steps to challenge and dispute his conclusions. It was not unreasonable for MDDC to seek by medical evidence to persuade the Tribunal to the view that Dr Lynch was mistaken and that there was no disability arising from mental impairment.

Only by allowing MDDC to seek to adduce such evidence to challenge that of Dr Lynch could the Tribunal comply with the overriding objective of dealing with the case justly and ensuring that the parties were on an equal footing.

Unless MDDC had conducted the litigation in some way which rendered it unreasonable for them to seek to dispute Dr Lynch’s evidence or if there were no basis on which Dr Lynch’s evidence could sensibly be disputed, it could not be just to deprive them of the opportunity to do so.

The Chairman failed to take into account the Overriding Objective’s emphasis on dealing with the case justly and even-handedly. The fact that Ms Stevenson had that burden of proof and therefore had to adduce relevant evidence to discharge it is not of itself a relevant reason for declining to permit the opposing party to call expert evidence in order to dispute the expert evidence by which the Claimant seeks to discharge that burden.

If a Tribunal concludes that a party has so conducted itself in relation to the deployment of its own medical expert as to make it unreasonable for that party to be permitted to call that expert, then of course it is open to the Tribunal to refuse to allow that evidence; and if a Tribunal properly concludes that the opposing party has no real basis on which to seek to challenge the evidence of the party which bears the burden of proof, then again it is open to the Tribunal to refuse such permission.  That however was not the case here.

It seems that the Chairman took the view that MDDC had behaved unreasonably in seeking to obtain permission from an expert witness at the stage at which proceedings had reached when before her.

That criticism was unjustified as the chronology showed.

At the CMD which followed 2 weeks after Dr Lynch’s report, MDDC were wholly entitled and acted in accordance with good practice in seeking directions so as to ask questions of Dr Lynch. There was no suggestion that MDDC pursued questions to Dr Lynch as an alternative to calling their own expert. If that had been the case, there would have been no reason to have adjourned the CMD; it must inescapably have been in the minds of all concerned at that hearing that, if the answers to the questions were satisfactory to MDDC, no further issue as to medical evidence might arise but that, if those answers were not satisfactory, MDDC would or at least might wish to seek to adduce their own expert evidence. Were that not so … would not adjourned the CMD but instead would have fixed a date for a substantive hearing. As it turned out, the answers to the questions did not satisfy MDDC; and MDDC without delay re-listed the CMD in order to seek a direction for expert evidence.

The judge found that no reasonable Tribunal could take the view that MDDC had behaved unreasonably in delaying seeking their own expert until after the answers to the questions had been considered.

In her reasons the Chairman stated that MDDC’s case did not involve any attack on the legitimacy of Dr Lynch’s approach or his professional qualifications or ability and did not suggest any irregularity in the way in which he had been instructed.

However, it is not necessary for a party who wishes to dispute the conclusions of an expert and to do so by calling an expert of his own to demonstrate that his opponent’s expert has adopted an illegitimate approach, has insufficient qualifications or ability or has been irregularly instructed. He may do so by calling an expert who, reaches an alternative conclusion. The Tribunal then has to choose between the two expert opinions. There is no criticism properly to be made of a party who wishes to dispute the expert evidence of the other party in that way.

In the factual context in which the issue of psychiatric evidence arose, MDDC suspected malingering and, as they were entitled to do, did not accept Dr Lynch’s conclusions. There was no history of mental illness; and Dr Lynch’s opinions could fairly be said to be open to dispute.The answers given by Dr Lynch disclose an apparent change of mind as to the onset of depressive symptoms – from April 2005 to November 2004 – and are lengthy and complex and might be said not altogether to answer all the questions posed. Dr Lynch accepted that there might be different views as to the aetiology of Ms Stevenson’s experience of back pain and her psychological symptoms.

It could not in these circumstances be said that there was no basis for a challenge to Ms Stevenson’s assertion that she suffered from a disability arising from mental impairment, which challenge did not depend upon the lines of attack referred to by the Chairman in her reasons.

In her reasons the Chairman based her decision on whether it was necessary to allow MDDC to have the opportunity to challenge Dr Lynch; earlier she said that she had been guided by CPR 35.1; in her reasons she referred to “necessity”. Necessity was not the appropriate test. The judge rejected the views of the Chairman on the issue of current and future delay as being primarily the responsibility of MDDC.

For the above reasons the appeal was allowed and the court made directions itself on the basis that each party considered it was in as good a position to do so as the tribunal. Not surprisingly it granted directions permitting the calling of an expert who would in essence provide rebuttal evidence.

Comment

The court or tribunal has to be fair and even handed. The Overriding Objective includes dealing with a case justly and putting parties on an equal footing and is not limited to expedition and the avoidance of delay. It is plain that the Chairman of the Employment Tribunal had formed a slanted impression of one party’s conduct which impression did not correspond to reality. This case reinforces the importance of allowing a party who has not committed undue delay to instruct their own expert where expert evidence is reasonably required and the other side has been permitted to instruct an expert. To decide otherwise would be to give one party an unfair advantage and would be to prejudice the other party. The case is also important in relation to some of the judicial comments by the EAT Chairman (His Honour Judge Burke QC) including:

(a) The purpose of expert evidence is not limited to challenging the approach of the other side’s expert or his qualifications or experience – but may legitimately to put forward a separate and distinct expert opinion.

(b) The answers to questions by experts may be telling. The EAT was unimpressed by lengthy rambling responses which did not answer the questions posed. That coupled with a change of mind on one issue by the expert in question caused the EAT to conclude that his opinions were potentially open to challenge by another expert.

Indeed for an expert to indulge in challenging the other side’s qualifications or experience is highly dangerous. Such an approach tends to personalise matters and show the expert making such assertions as an advocate (which is fundamentally wrong for an expert). Succinct and direct answers to questions are much preferred to long rambling answers which tend to miss the point and may well be seen as an exercise in obfuscation by the expert concerned.

The Employed Expert and how to Overcome a Lack of Independence

[2007] EWHC 2245 (Ch) TEDR Volume 12 Issue 3

The Facts

The case involved the calling of both factual and expert witnesses to provide evidence and some witnesses who gave both factual AND expert evidence.

The Issues

The issues in the case arose out of the agreement for, and provision by the claimant of, a nuclear fuel reprocessing service to the owners/operators of certain nuclear power stations and specifically one in Germany, being a reprocessing facility designed and built for the purpose at Sellafield, known as the Thermal Oxide Reprocessing Plant or “THORP”.

The case consisted of claims by BNFL that the defendants had failed to pay the full amounts due under invoices rendered to each of them pursuant to the Service Agreements, as supplemented by the Side Letters. Non-payment was admitted, but the defendants sought to justify non-payment, and to obtain recovery of alleged overpayment, under a series of defences and counter-claims.

The Decision

Relevant excerpts from the judgment of the Mr Justice Briggs are worthy of being directly quoted – by reason of the high significance of the issue of the independence of experts and how an expert may counterbalance a lack of independence by various means. The judgment also addresses how a witness of fact may, in appropriate circumstances, also act in the same case as an expert witness.

The relevant excerpts are set out below:

54. BNFL’s main witness was Mr Nigel Donaldson, called both as a witness of fact and as an expert. … I have kept in mind the need to distinguish between Mr Donaldson’s qualities as a witness of fact, and his qualities as an expert.

55. Upon analysis, his role may fairly be divided into three. First, he gave direct factual evidence about aspects of the design and appraisal of the THORP project in which he had been personally involved at the relevant time. Secondly, he provided largely hearsay factual evidence about a whole range of matters relevant to the RTR issue which he had collected from a detailed appraisal of the relevant documents, and from discussion with current and former colleagues at BNFL, several of whom did not give evidence themselves. Thirdly, he gave expert evidence in the form of his opinion as to the reasonableness of the conclusions reached by BNFL in reaching its view that THORP could reprocess a 7,000tU baseload in ten years.

56. Mr Donaldson graduated with first class honours in Chemical Engineering from the University of Bradford in 1976.

… [The judge then set out Mr Donaldson’s career history] …

60. … Mr Donaldson has the benefit of long and broad experience in the technical management of both Oxide and MAGNOX fuel reprocessing, relevant detailed personal knowledge of the design, commissioning and operation of the THORP plant, in particular the HEP, and as a continuing senior employee of BNFL, the ability by site visit, discussions with colleagues and document appraisal to refresh his memory on the details of the design and operation of THORP, not shared either by retired employees or by independent experts. By contrast however with Dr Wilkinson, Dr Jeal and Mr Smith, Mr Donaldson was not personally involved in the decision making process which led to BNFL’s commitment to the 7,000tU baseload for THORP in 1986.

61. Mr Donaldson was a factual witness of quite exceptional quality. In addition to providing a highly detailed account of the design of THORP and of the ancillary plant necessary for a complete Oxide fuel reprocessing system in his first witness statement, he evidently carried out the most through preparation for the provision of further factual information while being cross examined, and in numerous respects amplified his written account with substantial and precise further detail, wherever requested either by counsel or by the court. … In short, there appeared to be no aspect of the Oxide or MAGNOX reprocessing plants at Sellafield about which Mr Donaldson had not carried out the necessary preparatory work to be able to provide well researched and reliable factual answers to the technical issues thrown up by the RTR issue.

62. Mr Donaldson gave his evidence with care, patience, courtesy and a becoming lack of arrogance. His account of matters of factual detail was not successfully challenged at any stage in cross examination. He was also a highly articulate and patient teacher of technical detail to the uninitiated, including of course myself, and very occasionally counsel. All in all, he was a witness of primary fact in whom I found it possible to place complete reliance.

63. As an expert, Mr Donaldson started with an inevitable disadvantage in being a full-time employee of BNFL. Prior to the decision of the Court of Appeal in R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] QB 381, there were some who thought that full-time employment by the party calling him was a crippling disability for an expert, sufficient to render his opinions inadmissible as expert evidence: see for example Liverpool Roman Catholic Archdiocesan Trustees v Goldberg (No 3) [2001] 1WLR2337.

64. While it is now clear that full-time employment by a party is no longer a disqualifying characteristic for the giving of expert evidence, the lack of an independent relationship between the expert and the party calling him nonetheless remains a major factor going to the weight of the expert evidence, and one which it has been necessary for me to bear constantly in mind. Nuclear fuel reprocessing is a subject in relation to which it is no doubt difficult to find experts with relevant experience and qualifications, and although there are no doubt other reprocessing plants abroad, each will operate under its own commercial, technological and in particular regulatory constraints which render experience abroad intrinsically less valuable to the expert than experience at Sellafield itself. Furthermore, it may persuasively be argued that there is little substitute, in terms of a reliable perception of the realities, for a long day-to-day involvement in the process of the design and commissioning of the very plant under review.

65. Balancing those considerations, Mr Donaldson’s thorough preparation, wide ranging experience and personal involvement in the design, operation and maintenance of the THORP plant and its predecessor at Sellafield largely made up for his lack of de facto independence from BNFL. Furthermore, it appeared to me that he had both taken on board and resolved to take seriously his responsibility to the court as an expert witness. He was much criticised in cross examination for the perhaps argumentative tone of parts of his second witness statement, in which he took the defendants’ experts to task in robust terms for, as he regarded it, ignoring or failing to take account of material matters, including matters as to which he had given factual evidence available to them before they wrote their reports. That cross examination of Mr Donaldson was directed to persuading me that he was arguing a case rather than providing an objective opinion. I found his oral evidence to be an encouraging contrast to the signs of argumentativeness in his second witness statement. On the whole, he seemed to me to maintain both balance and objectivity under cross examination to an extent which led me to conclude that the apparent argumentativeness of parts of his second witness statement was more a matter of style than substance. …”

Comment

For once a case where an expert is not criticized but is praised by a High Court judge and whose expert evidence is found to be of high quality! This example shows when it may be appropriate for a witness of fact to be an expert witness. It also shows the judicial balancing exercise between a lack of independence on the one hand and, on the other hand, the use of objectivity, logic and diligence by the expert witness who happens to be employed by a party to the litigation.  The importance of day to day hands on experience of such a witness, especially in a specialist area of activity, was highlighted by the judge. The presumption of a reduction in weight to an expert who is not independent may accordingly be effectively rebutted by the expert adopting an independent-minded and rigorously analytical approach to the giving of his expert opinion evidence.

Guidance for Experts in Family (and possibly other) Matters

[2007] EWHC 136 (Fam), [2007] 2 FLR 597 TEDR Volume 12 Issue 2

The Facts

The court was asked to determine certain facts and make recommendations, and in particular to make some findings in respect of an expert (F) in paediatric neuro-radiology, arising out of concluded care proceedings. In the course of his judgment, Mr. Justice Ryder also related the findings and recommendations made earlier in the case by the Court of Appeal and added further recommendations of his own. For the purposes of this summary no distinction will be made between which court made which recommendations.

In care proceedings brought by the local authority as applicant, the judge relied solely on the evidence of F in finding that one or other of the parents had been responsible for a non-accidental brain injury sustained by their infant son as a result of being shaken.

The parents appealed against that decision and asserted that the report of a second expert, which clearly and fundamentally disagreed with the conclusions drawn by F, supported the parents’ case that their infant child’s condition had an innocent origin. That second opinion had not been adduced before the judge.

The parties. prior to the appeal being heard, agreed that the judge’s findings could not stand and that the case should be remitted to another family judge for a rehearing.

Following the instruction of further medical experts, a consensus of medical opinion was reached, with which F agreed and which was very much at odds with his earlier opinion on which the trial judge had relied.

The Issues

Guidance was given on the advisability (or rather the non-advisability) of the court relying on a single expert in care proceedings.

Counsel for all the parties subsequently invited the court to give judgment in open court in respect of the agreed facts and to address what went wrong so as to avoid such mistakes being made in the future. Certain issues relating to the conduct of F in his capacity as an expert witness were also addressed.

The matter had come before Thorpe LJ, Wall LJ and Black J on the 25th July 2005 when the court, by consent, allowed the appeal. The matter was remitted for rehearing before the High Court as soon as possible.

In a Judgment delivered on the 31st October 2005 the Court of Appeal gave guidance on the use of expert evidence. In the context where there has been a jointly instructed expert or an experts’ consensus which a party seeks to challenge, the court held that a second opinion should normally only be permitted where the question to be addressed by the expert chosen to give the second opinion goes to an issue of critical importance to the judge’s decision in the case. Mr. Justice Ryder observed that that principle echoes an earlier statement of principle that is not diminished by the subsequent case law on residential assessments and which was not cited to the Court of Appeal: Re G (interim Care Order: Residential Assessment) [2004] EWCA CIV 24, [2004] 1 FLR 876 at 891 para [54] per Thorpe LJ where it was held:

“in the case of P, C and S v. United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631 the statement of general principles between paras [113] and [120] reinforce the obligation to ensure within the court process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents.”

The Decision

Given the weight of cogent evidence now available to the court, the following findings were made by consent by the Court of Appeal:

(i) The infant had never been a victim of non-accidental injury;

(ii) the care by the parents was and always had been exemplary;

(iii) The parents relatives had acted promptly and appropriately in obtaining medical treatment for him;

(iv) the medical experts were in agreement that K’s brain injury was likely to have been caused by asphyxia pre-delivery, and it was very unlikely that non-accidental brain injury could have caused the pattern seen in imaging scans of the infant’s brain

(v) F had genuinely formed a different professional opinion on a very difficult problem, but was in error in that he had unconsciously gone outside his role as an expert witness and adopted the role of a decision maker.

(vi) The court would not criticise F for his opinions, but observed that the language he had used in his first report had obscured the highly unusual nature of the case.

(vii) In addition to the guidance formulated by the court in this case, the following recommendations were made:

(a) local authorities should always write a letter of instruction when asking a potential witness for a report or opinion (either before or after legal proceedings are underway) which should comply with current principles;

(b) when requesting and collating documentation in the case, all parties should be careful to set out requests made of third parties to provide disclosure and of their responses – so that the possibility of less than complete disclosure that sought to establish a case (rather than give a full and frank and balanced position) could be put to rest. In any event considerable care needed to be taken when placing reliance on materials that had not been produced either as “original medical (or other professional) records” or in response to an instruction from a party. The reason for this was that such documentation could include assumptions as to certain procedural and evidential matters such as the standard of proof and the admissibility of hearsay evidence (which assumptions might not be correct).

(c) when appointed and instructed, expert witnesses in providing assistance to the court should comply with the best practice of their clinical training. This included specifically that:

(i) they ought to set out their risk assessment process and the process of differential diagnosis that had been undertaken;

(ii) they should make it clear when they had made factual assumptions and drawn any conclusions based on those assumptions;

(iii) they ought also to point out any unusual features of the case;

(iv) they ought to expressly refer to any contradictory or inconsistent elements;

(v) they ought to identify the range of opinion on the question to be answered, giving reasons for the opinion held;

(vi) they ought to highlight whether a proposition was a hypothesis or an opinion arrived at in accordance with a peer reviewed and tested technique, research and experience accepted as a consensus;

(vii) they ought to point out and assess any “unknown cause”.

The court observed that the use of what was called a “balance sheet approach” to the factors that supported or undermined an opinion could be of considerable help.

The court expressed the view that experts generally may have become too focused in trying to reach agreed solutions to difficult problems. Experts should inform the court of their agreements and their disagreements – the latter can often be as important as the former.

In addition the court recommended that an expert should be requested at the earliest stage as to whether in his view another expert was needed to bring some skill or expertise not possessed by those already involved or (in rare instances) a second opinion on a key issue identified by the court and, if possible, what questions should be asked of that expert;

The court proposed that the current “Code of Guidance for Expert Witnesses in Family Proceedings” should be amended to incorporate the above recommendations.

Comment

An immensely important case for medical experts involved in family and other cases.

Another case of misuse of statistics by an Expert

[2007] EWCA Civ 290 TEDR Volume 12 Issue 2

The Facts

Mr. Miah was 26 years of age and suffered from severe athetoid cerebral palsy. This was brought about in the final stages of labour when he was born. It was a catastrophic case of cord prolapse. He was delivered as a new born baby with severe brain damage.

It was common ground that had he been delivered just five minutes earlier brain damage would not have resulted (assuming the delivery was otherwise uneventful).

The crucial issue, therefore, was whether the umbilical cord had already prolapsed when his mother was examined by the midwife. By that time the mother’s membranes had ruptured and it was agreed between experts that at or around the time of rupture of the membranes, was the most common time for a cord prolapse to occur.

If cord prolapse had taken place before the end of that examination by the midwife it was common ground that she would have been negligent in failing to identify it.

The trial judge found as a fact that the midwife could remember the events of the birth, notwithstanding that those events had taken place some 25 years ago.

The judge found that the cord prolapse had occurred after the midwife had undertaken her examination of Mr Miah’s mother.

The Issues

To what extent does lapse of time prevent a judge from making findings as to recollection of events by a witness? Counsel for Mr. Miah argued that the judge had been wrong to accept that after such a length of time, the midwife had in reality been able to remember the events, rather than reconstructing the events of the birth.

What discretion does the judge have to prefer the evidence of one expert to another? It was argued for Mr Miah that the judge was wrong in preferring the evidence of the health authority’s expert over that of Mr Miah’s expert.

The Decision

The trial judge had had to “weigh up” the probabilities by reference to evidence other than that from the midwife. This included weighing up the evidence of the experts where there were differences between them. The judge also had to consider such records as existed.

Both experts accepted that the time of rupture of the membranes presented the greatest risk of cord prolapse. Mr Miah’s expert was viewed by the Court of Appeal has having given well founded evidence save in one respect in which he was criticised for mis-use of statistics. He relied on an article which set out the results of a clinical study (the Murphy & McKensie article) to support a proposition, which on objective analysis, it did not address one way or the other. However in this case the mis-use of statistics, which was frankly acknowledged by the medical expert concerned, was not material to the decision.

The judge had been entitled to take the view that for anyone to have missed the prolapsed cord would have been grossly negligent. He had been able to assess the midwife as a witness over a considerable length of time and so could form a view as to her memory of events and of whether she was the sort of person who would miss a prolapsed cord.

The judge at trial held in favour of the health authority and against Mr Miah as Claimant. The Court of Appeal whilst expressing sympathy with Mr Miah said that the decision of the trial judge was not one with which they would interfere.

Comment

This provides another example of mis-use of statistics in clinical expert evidence. However on this occasion whilst the error was unfortunate, it was not material to the eventual decision.

This again, however, emphasises the dangers of medical experts relying on statistics.

A key problem, of course, is that numerous scientific papers published in learned journals are packed solid with statistics. Those involved in maintaining and enhancing standards in medicine often propound the reliance on solid science – and that must include statistics derived from studies. Evaluating the weight to be applied to one set of statistics against another and assessing the significance of different clinical studies has commonly been a role for the medical expert in providing evidence. However this decision and the earlier cases involving Sir Roy Meadow show the current dangers of medical experts making use of statistics.

But is it really the case that expert statisticians need to be engaged in these cases in addition to medical experts? That could simply add further layers of dispute, cost and confusion – since there is every possibility of one statistician disagreeing with the views or findings of another statistician.  It could be said with some justification that judges are even less well-equipped than medical experts to evaluate statistics. The use of statistics in the context of expert evidence represents an area of medico-legal practice that needs to be robustly addressed so as to avoid inconsistent approaches by experts which would not be in the public interest.

Potential Conflicts of Interest

Bristol County Court (Recorder Moxon-Browne QC) 26th January 2007 TEDR Volume 12 Issue 1

The Facts

The appellant appealed against a case management decision giving him permission to rely on an expert’s report subject to the disclosure to the defendants of an earlier report from a different expert.

The claimant had been injured by an exploding firework manufactured and sold by the First Defendant.

Before the proceedings were issued, the claimant had engaged a fireworks expert to provide a report and informed the First Defendant that he was doing so. C gave an undertaking that any testing on the remains of the firework would be non-destructive.

Upon receiving the expert report, the claimant decided (without giving any reason) not to rely upon it. Accordingly he did not disclose or serve the expert report or otherwise disseminate the views of that expert.

After the commencement of proceedings, the claimant obtained permission to rely on a report by another expert, but subject to a condition imposed by the district judge, that the initial expert report be provided to the First Defendant. The claimant did not want to do this and argued that (1) the initial expert report was legally privileged and that he as the claimant had the right pre-action “to shop” unhindered for expert advice and ought not to be concerned about the prospect of having to disclose it. The claimant contended that that right was only restricted after the proceedings had been commenced and the court had taken the step of giving directions on those expert witnesses it would permit to be called and relied upon; (2) the judicial right to give permission conditional on disclosure of a pre-existing report only applied to cases where a party needed permission to rely on a new expert “in place of” a previous expert.

The Issues

The appellant appealed against a case management decision giving him permission to rely on an expert’s report subject to the disclosure to the defendants of an earlier report from a different expert.

The claimant had been injured by an exploding firework manufactured and sold by the First Defendant.

Before the proceedings were issued, the claimant had engaged a fireworks expert to provide a report and informed the First Defendant that he was doing so. C gave an undertaking that any testing on the remains of the firework would be non-destructive.

Upon receiving the expert report, the claimant decided (without giving any reason) not to rely upon it. Accordingly he did not disclose or serve the expert report or otherwise disseminate the views of that expert.

The Decision

The disclosure of an previous expert report could be a condition of permission to rely on a later report by the same or another expert if required by “fairness and justice”; but if no such permission was sought, the court did not have any power to override the privilege in the earlier report,

In particular, however, where an expert had been instructed to perform tests on an exhibit, “open justice” and “fairness” would generally require that the results of those tests should be put before the other experts and the court – whether or not the author was in due course called to give evidence. This was particularly so where there could have been some, even minor, alteration to the exhibit – albeit short of the exhibit being destroyed. This would normally require disclosure of the report in question being made. This was an additional reason to order disclosure in this case.

In this case it was unfair for the nature and detail of the tests and the effect on the remains of the firework to be known only to the claimant and this gave rise to a perception of a potential injustice. (2) There was no justifiable distinction between unidentified experts’ reports obtained pre-action and those obtained with the court’s permission after it had started.

Comment

The Court has correctly emphasised previous judicial disapproval of “expert shopping”. It also shows the sensible power of the court to make a party pay the price of seeking permission to rely on another expert. The distinction between conduct pre-action and during the course of proceedings was seen as artificial and untenable.

This case also highlights the importance of making a clear distinction between an expert being engaged to investigate and advise and an expert being appointed with a view to providing expert evidence at some later date.

Here, of course, tests conducted might affect the physical evidence and so, as the judge made clear, “open justice” would be likely to require disclosure whatever distinction were to be made. Investigation and opinion by an expert adviser who does nothing which might interfere with the physical evidence relating to the dispute and who was not engaged in with a view to providing expert evidence later in the litigation, would, however, remain privileged – and it is most unlikely that the Court could demand disclosure as the so-called price for the party using another expert witness for the litigation.

Relevance of Expert Evidence to Limitation

[2007] EWCA Civ 66 TEDR Volume 12 Issue 1

The Facts

In September 2001 the claimant sustained an accident at work when he fell into a 2 feet deep hole. His foot became trapped and he suffered a wrenching injury to the right knee. He had some previous history of a problem with his right knee. At 17 he had had a motorcycle accident. In 1994 his knee was investigated and a diagnosis was made of damage to the anterior cruciate ligament.

The claimant was referred to Mr Anthony Banks, a consultant orthopaedic surgeon at what was then the Bolton Royal Infirmary. His knee problems subsided, but they recurred in 2001. The claimant’s GP referred him back to Mr Banks and an appointment was made for 9 October 2001.

However, on 25 September 2001 the claimant had his accident at work. He attended the hospital. The initial diagnosis was of a soft-tissue injury to the right knee. He was treated and told to keep his appointment, already made, with Mr Banks as a follow-up. On 9 October 2001 the claimant saw Mr Banks. An MRI scan was ordered; that was available in late November 2001. Mr Banks advised an operation to reconstruct the anterior cruciate ligament. The operation took place on 8 May 2002. The claimant developed MRSA – a virulent infection. He had extensive treatment, but eventually in 2003, he had to submit to an above-knee amputation of the right leg.

The claimant commenced proceedings in respect of the accident at work. Liability was not in issue – but an important issue arose as to whether or not the need for the operation which resulted in the development of MRSA was necessitated by the accident or whether the claimant would have undergone the operation even if he had not had the accident at work. That issue plainly would make a great deal of difference to the damages to be recovered.

The claimant initially obtained medical reports from an orthopaedic surgeon named Mr David Markham, but he has not sought to rely upon those. He also obtained medical reports from Mr Banks. The gist of these was that, had it not been for the accident at work, the claimant would not have had surgery in May 2002, although it was Mr Banks’ view that he might have needed surgery in due course, say in about three to five years’ time. Mr Banks also expressed the view that MRSA was an extremely rare complication in this kind of knee surgery. The accident at work had led to the surgery taking place when it did; that had led to the infection, which led to the amputation.

The claimant sued for damages.

The Expert Evidence

The claimant obtained medical reports from an orthopaedic surgeon but did not seeks to rely upon them. He also obtained medical reports from Mr Banks. The gist of these was that, had it not been for the accident at work, the claimant would not have had surgery in May 2002, although it was Mr Banks’ view that he might have needed surgery in due course, say in about three to five years’ time. Mr Banks also expressed the view that MRSA was an extremely rare complication in this kind of knee surgery. The accident at work had led to the surgery taking place when it did; that had led to the infection, which led to the amputation.

The claimant’s solicitor also obtained an expert report from another orthopaedic surgeon, Mr Peter Kay. He referred quite extensively to Mr Banks’ report and concluded that, absent the accident at work, it was likely that the claimant would have soldiered on without an operation for some further time and might never have needed one at all. As MRSA is a very rare complication, its occurrence would have been unlikely if the operation had taken place at any other time.

The defendant’s medical expert, Mr Parkinson, was of the view that the claimant’s knee had deteriorated to such an extent before September 2001 that, even absent the accident at work, he would probably have had an operation in March 2002 with the same consequences as had in fact occurred.

Arising from the joint meeting of experts, Mr Kay and Mr Parkinson became much closer in their opinions. Their joint review was that the claimant’s underlying condition made surgery almost inevitable, but the accident brought forward the need for it to take place by about three months.

The Issues

Following one statement of Mr. Banks being excluded by a district judge as containing expert evidence, a revised statement was drafted for Mr Banks, dated 7 October 2005. However, the defendant did not agree that it contained only evidence of fact and the matter went back to the district judge. The defendant objected to the following passage in the statement:

“I have been asked whether I would have advised Mr Kirkman to undergo surgery following his referral to me in 2001 in the absence of the September 2001 accident. I would not have advised the surgery which Mr Kirkman in fact underwent in the absence of the accident in September 2001.”

Mr Banks had also said in the following paragraph:

“I have been asked by the solicitors acting for Mr Kirkman not to give reasoning for the advice I would have given in the absence of the accident of September 2001 in order to avoid giving opinion evidence. I am fully willing to give my reasons if asked.”

The district judge ruled that Mr Banks should be permitted to attend court to give evidence and that it should be left to the trial judge to decide if his evidence contained expert opinion or not.

The defendant was unhappy with this ruling and appealed it to the circuit judge. That judge, HHJ Warnock, upheld the appeal on the basis that the statement contained expert opinion evidence and held the statement to be inadmissible.

The Decision

The leading judgment was given by Lady Justice Smith in which she said:

“14. The problem that has arisen in this case seems to me to stem from the rigid application of the aspirational objective within the Civil Procedure Rules that the parties to litigation should operate under equality of arms. This objective has been interpreted to mean that it is desirable for each party to have permission to deploy similar resources. Each party will, in general, be limited to instructing the same number of experts; the number will depend upon what is proportionate, bearing in mind the importance and complexities of the issues in the case. However, the desirability for equality of arms was not intended to result in an absolute rule that, in every case, the parties must be limited to calling the same number of experts. There may be circumstances in which that general rule should give way for the sake of achieving the overriding objective of dealing with the case justly.” (see ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA CIV 1284 as an example)

The following passages are highly instructive as to how to discern the difference between expert evidence and evidence of fact in such cases. Lady Justice Smith said:

“16. The kernel of Mr Banks’ proposed evidence, as re-drafted, is the statement that if the claimant had presented himself in October 2001 and had not recently had an accident he, Mr Banks, would not have advised the claimant to undergo a ligament reconstruction. In my view, that is clearly a statement of fact. He is there saying what he would have done in a set of circumstances which did not in fact happen. True, in saying that, Mr Banks is relying upon his knowledge and his experience as a professional person. But he is not expressing an expert opinion.

17. I can see that the distinction may not be immediately obvious. I suggest that the distinction can be seen by applying the following tests. One is to consider the difference between the positions between Mr Kay and Mr Parkinson on the one hand and Mr Banks on the other hand in the present case. Mr Kay and Mr Parkinson have no personal knowledge of the facts; they bring their expertise to bear upon their understanding of the claimant’s chronic condition, absent the accident. They express a view as to what most competent surgeons would advise; or, put another way, what it is probable that an unidentified surgeon on whom the claimant attended would have advised. In giving their opinions they are advising as to their understanding of received medical wisdom applicable to the circumstances of this case.

18. Mr Banks’ position is quite different. He is the doctor who would in fact have advised the claimant. He is saying what he would have advised the claimant to do. He is not saying that that advice would have been correct, or that most competent surgeons would have given that advice, or that an unidentified surgeon to whom the claimant presented would have given similar advice. He is speaking only for himself. He might, if asked in cross-examination, be able to justify his advice as good and correct. In doing so he would almost certainly have to express expert opinion. On the other hand, it might be possible for the defendant to attack his advice as bad or incorrect, but the correctness of his advice or whether it accorded with received medical wisdom is not in issue; the only issue is what he would have advised. His evidence as to that might be challenged, at least theoretically, on the basis that it is not true, or more realistically on the basis that it is not reliable, but if it was sought to challenge his evidence on the basis that no other orthopaedic surgeon would have advised as he had done, his answer could quite properly be: “Well, that may be so, but right or wrong that’s what I would in fact have advised”.

19. The other way in which one can be satisfied that this is evidence of fact is to compare it, as Mr Limb invited us to do, with the evidence of the employer, who states that if his employee (the claimant) had not been injured, he (the employer) would have promoted him to a more senior position within, say, two years. No-one would suggest that such evidence is inadmissible; no-one would suggest that it is expert evidence, although it is founded upon the witness’s knowledge, experience and expertise. The usefulness of the employer’s statement is that he has sufficient knowledge of the claimant’s qualities and the needs of his own business to be able to give a credible statement as to what would have happened if the claimant had not been injured. But although the evidence depends upon a degree of expertise, it is not expert evidence. I can see no essential difference between the evidence of the employer and the evidence of Mr Banks.”

So the Court of Appeal held this to be evidence of fact and allowed the same to be provided but also made the cogent point that even if it had been in part expert evidence, it ought probably to have been allowed in the exercise of judicial discretion in this case.

Comment

An important decision on the difference between expert and factual evidence and also the flexibility of the overall approach of their being equality of numbers of experts on opposing sides and that it does not amount to a rigid rule. It also is an example of considerable costs being thrown away through an overly rigid application of CPR by one party and a failure to look at a case proportionately and in the round. It is important to remember that expert witnesses may occasionally be called as witnesses purely of fact. The irony is that they may then be asked questions in court (sometimes by counsel and sometimes by the judge) seeking to elicit expert views and this is whether or not they are being paid as experts. I suppose technically such a witness may say that he or she is there to give evidence of fact and hence would decline to provide any expert opinion evidence (no doubt appreciating that he or she would not be being paid a professional fee to provide such expert opinion evidence). However, in reality most experts giving factual evidence will be well advised to comply with the wishes of the judge. Those wishes may not necessarily be assumed however and an expert who is giving evidence of fact but is being asked to stray into areas of expert opinion, may well wish to clarify at the time of giving his or her evidence what the judge wishes him or her to deal with in testimony.

 

Interpretation of documents is the judge’s job

[2008] EWHC 185 (Ch) TEDR Volume 13 Issue 3

The Facts

The case concerned the pension scheme set up by the Claimant for the benefit of its employees.

The case revolved around construction of the scheme relating to its funding.

Each party produced expert actuarial evidence.

The Issues

When is expert evidence admissible and of assistance?

The Decision

The expert evidence before the Court was both admissible and helpful in so far as it described the various ways in which pension schemes may be funded and the role that is played by the scheme actuary in the funding process.

Expert evidence may also be relevant and helpful if the wording of the scheme were in a standard form within the industry.

However, the individual views of actuaries on the meaning of particular wording within the scheme are of peripheral relevance at best. That is a question for the Court.

It is possible that the Court will derive some indirect assistance from learning how a skilled actuary would interpret the words in question but, if another would interpret the words differently, the effect of this evidence is likely to be neutral.

Comment

An expert can only give evidence about issues which are within his expertise. The interpretation of a document (save if it is in an industry-standard form where the assistance of an expert may be helpful) is a matter for the Judge.