Given that experts are always aware they may be criticised by a judge it’s understandable they might feel a little smug or a frisson of schadenfreude to know that from time to time judges and tribunals are themselves criticised quite severely for their approach to expert evidence.

In an appeal in relation to Disability Living Allowance that had clearly dragged on for many years the Social Security Commissioner concluded that “ The main reason for allowing this appeal has occurred in too many other appeals.  It is wrong to dismiss evidence of a medical practitioner from one party as not “independent” without indicating why while at the same time accepting medical evidence from the other party as “independent”.  He noted that the tribunal had “dismissed without consideration the evidence of a consultant specialist at a major British hospital who specialises in precisely the problem from which the appellant is suffering, and who is in addition fully recognised as an expert medical witness.  That is plainly absurd.”

Similar criticism applied in a completely different field when a First Tier Tribunal include various additional items in an order for remediation of a building fire prevention measures under the Building Safety Act 2022 (Monier Road v Blomfield). In this case the FTT did not set out its reasons, or any professional guidance or previous cases to support the new items or give witnesses or experts on either side the chance to consider them.  As the Upper Tribunal commented “We really have no idea why the panel’s expertise led it to contrary conclusions; nor have the parties. Insofar as the FTT’s decision was reached in reliance, in some undisclosed way, on its own expertise it was unfair and for this additional reason must be set aside.”

In essence both tribunals were held to the same standards as an expert, that is they needed to provide the evidence and reasoning that supported their conclusions and had failed to do so.

Having said that  it is common for parties to attempt to overturn a judge’s view of expert evidence and then fail.  A prominent recent example involved a complex technology case (IBM v LZLabs) in which the expert and factual evidence was deeply entwined.  Despite a judgement described by them as “an impressive piece of work” the appeal court was faced with a  ‘kitchen sink’ application where every adverse finding was in issue.  Refusing permission to appeal they cited the fact that the judge had made copious references to the expert evidence in her judgment and for each ground of appeal had considered the evidence appropriately, together with other evidence where relevant.

So again, applying the same standards as for experts in this case the judge was found to have met the standard. The fact that judges and tribunals sometimes fail to meet the standard should remind all experts that this is a challenging role and that it’s important for experts to keep up to date.

The Academy of Experts provides regularly updated guidance from our  Judicial Committee so you can be sure that you are adopting best practice. This includes for example the Model Form of Expert’s Report and Guidance Notes on Meetings of Experts, Contingency Fees & Remote Evidence. As a member you can also call our Technical Helpline for help and advice on ethical and practical issues from dealing with instructions to getting paid