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

Lawyers spend a good deal of time discussing timetables for disclosure, witness evidence and expert reports but it seems that sometimes they forget that a failure to raise expert issues at the right time can have serious consequences.

For example, expert evidence about signatures is commonly needed for inheritance disputes but in Lynch v Murphy in the Irish High Court a claim was dismissed, in part, because the expert report that was claimed to exist had not been served.   In Huang & Wang v Credit Suisse the claimant’s application for summary judgement was not accompanied by any expert reports, despite the validity of signatures being key to the case. The judge described the claimant’s attitude as “an oddity I am unable to fathom” and refused their application.

While these are extreme cases a more common occurrence is for addition expert evidence and complaints to be introduced as the legal process goes on, sometimes in supplemental reports, in submissions and even in the witness box. In Nicholas & Ors v Thomas & Anor, a case about falcons rather than ducks, in which one neighbour accused the other of harassing them and causing such as nuisance as to cause a high mortality rate in their falconry business.

The defence expert was heavily criticised by the claimant’s counsel not least for producing a supplementary report during the trial. As the judge said this criticism  was not well-founded because the report was responding to new evidence introduced by the claimant the day before the trial started. Having finished all cross-examinations the claimant’s closing submissions then invited the judge “to act upon suggested errors in Dr Forbes’s response to ROP’s Summary which had not occurred to them before he left the witness box. “ Unsurprisingly the judge was not especially impressed by this approach.

The eventual outcome  was that only  8 out of 34 allegations were proven  with a value  of £300k out of £1M originally claimed, which rather suggests that a more orderly approach to the expert evidence who have been more cost-effective for all parties.

The moral of all these cases is that if expert evidence is needed then it should be obtained as soon as possible and cover all of the technical issues that need to be covered. If you’ve need an expert in a hurry, whether for ducks or falcons, then TAE’s ExpertSearch can help. Our register of accredited experts is easily searchable or you can contact TAE and we’ll do our best to help.

 

Two recent articles in the Guardian cited the appeal court’s over-turning of a doctor’s conviction and an assortment of criticisms of experts made over recent years in highly critical articles, calling for compulsory training and registration of experts. Our Chair, William Hooper responded on our behalf as follows;

Recent articles have discussed concerns about expert evidence in the Courts and argued for greater regulation.

An expert witness is someone with specialist knowledge which the Court considers useful to itself in resolving a case.  The expert’s task is to explain the significance of technical material to the Court so that the judge (in a civil case) or jury (in a criminal case) can understand it and include it as part of their considerations. The decision-makers weight evidence, including that from experts, as they see fit.

The expert witness does not decide the case in either the civil or criminal courts.

Technical evidence can be complex.  It often happens that expert witnesses appointed by the two sides agree on some points of interpretation and disagree on others.  Expert witnesses may be subjected to robust cross-examination to detect error, incompetence or the hired gun.

Your writer calls for greater regulation but appropriate regulation has been introduced.  Instructing solicitors are required, when instructing experts, to inform them of their duties under the Civil (or Criminal or Family) Procedure Rules and the Practice Directions.  These cover the minimum legal obligations for expert witnesses.

The Academy of Experts, since 1987 a professional and accrediting body for expert witnesses, agrees that training is appropriate to ensure that those appointed fully understand their obligations and how those apply in a variety of potentially difficult situations.  Such training has been available for many years from The Academy of Experts and other sources.

Rather than the imposition of additional regulation, which may result in the exclusion of experts with the best experience and expertise to assist the Court, it is to be hoped that the CPS and instructing lawyers will carry out appropriate due diligence and choose to instruct properly qualified and trained expert witnesses.

William Hooper

Chair, The Academy of Experts

3 Gray’s Inn Square, London WC1R 5AH

It’s easy enough to define the role of an expert in court but given how often parties put forward ‘expert’ evidence that’s ruled out or discounted  we thought a list of recent cases involving ‘non-expert experts’ might be helpful to lawyers and clients alike. So here’s a list of the tip 5 give aways that the evidence involved is not in fact expert evidence;

 

1. The expert isn’t an expert at all. In a case about the (incorrect) seizure of poppy heads by Border Force the Claimant tried to serve an analysis of the business loss written by his son. The judge concluded he had no relevant expertise, was not independent and there was already agreed expert evidence on the subject and refused permission to use it.

 

2. The expert is the wrong kind of expert. In a case about psychological difficulties suffered as a result of a lack of Covid precautions the expertise required was about the medical foreseeability of psychological injury. The expert did not have, or profess to have, such expertise and their ‘general awareness of health and safety guidance’ simply wasn’t good enough.

 

3. The expert doesn’t follow the rules. Many people have professional expertise but to give evidence in court they need to be aware of, and follow, the rules. In a case involving a Defendant’s failure to cooperate with a medical examination his GP gave rather colourful evidence about the process in a report that claimed to be compliant with Part 35. However, the GP concerned said that although he’d read Part 35 he hadn’t complied with it and had not referred to his letter of instruction. Unsurprisingly his evidence carried very little weight.

 

4. The expert issue isn’t relevant. While pleadings can and do change ultimately the courts have to decide case on the pleaded issues. In an insolvency case an application to allow expert evidence on business valuation and restructuring was refused for “the simple reason the evidence will not go to any pleaded issue in the claim”.

 

5. The expert is a judge! And finally, the Court of Appeal recently overturned a ruling where the judge had preferred his own personal ie non-expert view to that of an expert who had given uncontroverted evidence on the impact of the 1982 Hyde Park bombings on the daughter of one of the victims.

So to summarise, for expert evidence to be accepted it must be from an actual expert, with the correct expertise, by an expert who follows the rules and covers issues in front of the court and not from a judge. If you’re looking for a proper, qualified expert then TAE’s expert directory is the place to find one!

In recent years a range of stakeholders have raised concerns regarding the standard of certain expert evidence relating to children in Family Law court cases.

These experts often use the title of psychologist and may be instructed to give evidence or offer diagnoses which they are not qualified to undertake.

The Family Procedure Rule Committee is now consulting on proposed changes to the Family Procedure Rules (FPR) and the associated Practice Directions (PD) for experts in family law children proceedings. These changes involve a requirement for an expert witness to be a ‘regulated expert’ which is defined in FPR 25.2.

The proposed definition of a regulated expert is set out as follows:

‘regulated expert’ means an expert who is:

1. regulated by a UK statutory body; or
2. a register accredited by the Professional Standards Authority for Health and Social Care; or
3. regulated by an approved regulator under the Legal Services Act 2007.

This requirement would not apply to international social workers and the court would be able to give permission to any expert where there is no regulated expert available.

Consultation Questions

1. Are there any experts not accounted for in the current draft of the amendments who you feel should be considered? If yes, why do you think they should be considered?
2. Do you have any feedback on Rule 25.5A and the amendments to PD’s relating to the standards of experts, as currently drafted?
3.  Are there any other comments you would wish to make regarding the instruction of unregulated experts?

 

The consultation is available here with responses due by 6 June 2025 at FPRCSecretariat@Justice.gov.uk.

TAE will be making a response to the Family Procedure Rule Committee. We would welcome your comments and input in the preparation of our response.

We would be grateful if any comments or suggestions to help frame the TAE response be sent to us not later than 15th May.

No sooner have we posted about experts doing their job efficiently, professionally and objectively than along come two judgements where the experts involved have very definitely not come up to scratch. Both experts were guilty of expanding and exaggerating their opinions to try to benefit of their client’s case.

 

In Morriss v London Borough of Hillingdon the cause of a motorbike accident was said by one expert to be the “the most dangerous site on a distributor road he had seen in his 55 years’ experience.”. This was a risky position to take given he’d not been able to examine the relevant stretches of road as they were at the time of the accident. The judge conclude that his evidence was “inappropriately partisan and exaggerated: the evidence concerning the collision site demonstrably showed it was not the extremely dangerous site that he characterised it to be, not least that there had never been a motorcycle accident there before: “

 

In Freeman & Ors v Home Farm Ellingham a planning expert took things even further. Not only did he give evidence outside the pleaded issues, which revolved around a loss of value in a plot of land,  he generated a set of plans for a development that had never been contemplated, orchestrating, as the judge explained, the production of “what appears to be factual evidence, but that evidence was entirely self-generated by him, and his firm.” That somewhat cavalier approach may explain why in court he appears to have found it difficult to accept instructions from the judge, who records that he “insisted on answering questions that he had himself posed even when asked by the court not to.” and on one occasion ignored an instruction from  the judge not to elaborate on what should have been a simple yes or no answer.

 

In the motorbike case the evidence of an expert with a great deal of experience was in the end valueless and the planning experts evidence was ruled inadmissible (or alternatively given no weight). The moral for lawyers and clients is that expert opinions that fall too heavily on your side should be related with suspicion, if they are not credible it will be obvious in court and end costing you money and very probably your case.

Only common sense? Now may not be the best time to refer to Thomas Paine’s advice to Americans that they should seek independence from Britain, but a keen understanding of what common sense means is important for an expert.

It’s trite to say that experts are there to assist the court on matters within their expertise but it tends to irritate judges if experts provide opinions that tell them what they already know. If you’re being asked to give opinions about matters that are really common sense it’s important to stop and consider if this is really necessary.

In some recent cases a good deal of time, and client’s money, seems to have been spent on expert evidence that really wasn’t needed. As Meade J observed in a patent case involving Motorola and Ericsson, “The experts gave their evidence very fairly and it was not submitted to the contrary. However, with a few exceptions, and this is not the fault of the experts themselves, I found the expert evidence unhelpful and a waste of time. For example, questions were asked to establish that companies in this field like certainty if they can get it, and that patent injunctions are bad for handset manufacturers. I did not need experts to tell me this. “

Similarly in an inheritance tax hearing the Tribunal considered that expert advice on the running of a property business did not assist them, “this is not an area where particular specialist expertise and experience is required to understand the evidence given by those involved in the business.”

Experts and lawyers should take care to avoid wasting time in this way and experts in particular should remember that an irritated judge is unlikely to be of benefit to them or their client.

Many of us will remember being instructed to show our working in Math exams in the hope of garnering at least some marks for our work even if the eventual answer was way off beam. Simply giving the answer runs the risk of all credit being lost even if its only wrong because of a tiny arithmetical slip.

The same approach is essential for experts, while the courts take note of qualifications and experience in assessing  expert evidence the acid test is whether an expert’s approach to providing an opinion stands up to scrutiny. If the court cannot understand your method then they will be less inclined to take a leap of faith in accepting your answers.

A recent example (Port of Sheerness Ltd v Swire Shipping PTE) involved two experts asked to estimate how long it would take to remove a cargo of plywood from a ship so that the cost of an extended stay in port could be calculated. The judge commented that “The experts were both impressive and well-qualified witnesses. The difference between them was derived from the methodology they employed. Mr Pope employed what I might call a “time and motion” model in which he broke the discharging operation down into its constituent elements and expected durations, making allowance for variable factors. Mr Daniells employed a more general approach based upon experience. “

Despite attempts to criticise the more detailed  approach the answer it gave was closer to contemporaneous estimates and the judge was not persuaded to accept the much higher estimate that was based on a method that was “definitely not a science”. The detailed method had the added benefit of allowing the judge to make a modest adjustment based on issues that emerged during the hearing.

For information and advice on what a expert report should cover see https://academyofexperts.org/users-of-experts/what-is-an-expert-report/

Our picture is from LiberationMath

 

Goldilocks expert reports?  A recent write up on reports in a non-expert context (https://freshspectrum.com/goldilocks/) suggested that there’s no such thing and that authors should create different reports for different audiences. But an expert is only allowed to produce one report so how can that best be achieved?

A report that’s too brief is unlikely to help and in extreme cases such as Jukic v BBC Anor [2025] https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2025/221.html , where an expert report was said to exist but like the claimant (and MacAvity perhaps, simply ‘wasn’t there’ judges have no choices but to make do without expert opinion.

In a complex Australian case (ASIC v Money3 Loans [2025] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2025/75.html ) involving consumer lending practise where the judge remarked that “It takes a good deal of persistence to read the Expert Report, which obviously I have.”  an experts report was challenged despite its length for lacking a clear factual matrix supporting the opinions it contained. The report was admitted but a more concise but properly underpinned report might well have saved time and cost.

Clearly too short and too long can both be problematic, but a recent judgement highlights what judges really need. In a sad case involving the treatment of an individual in custody there were two eminent and experienced experts involved but their evidence focused on different aspects of the case. One centred on the individual’s previous mental health history and treatment whereas the other focused on how they had presented to the police and others while under their supervision. Ultimately the issue the judge had to decide was whether they should have been treated differently in custody and their presentation at the time was what mattered, so  an expert analysis of their pervious history was of little or no help to the court.

Dobson v Chief Constable of Leicestershire Police [2025]

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2025/272.html

All of which highlights the need for experts to focus on the issues the court has been asked to decide. For more help on writing expert reports TAE provides regular training courses and a Model Form of Report aimed at helping experts do just that.

https://academyofexperts.org/practising-as-expert/model-form-of-report/#page_content

Great to see so many members at our Chairman’s Lunch to hear Lord Neuberger thank outgoing Chairman Ben Johnson and welcome our new Chairman William Hooper.

Member also enjoyed an entertaining and informative seminar from  Aileen Brown of CMS. Aileen  first reviewed general trends in the courts’ attitudes to expert evidence, noting a trend towards the acceptance of blurred boundaries between factual evidence and opinion, and who presents what. The courts have also shut-down inappropriate attacks from advocates on the credibility of experts.

She proceeded to review cases illustrating very fact-specific occasions on which experts may decide matters of fact. An expert who presented what was seen as legal argument dressed up as expert opinion fared less well. Other cases reminded attendees of the importance of compliance to Part 35, such as showing calculations and citing tests in full. A US case showed that an expert using AI in drafting a report may be criticised if unable to show they have verified their statements appropriately.

We hope you all enjoyed it and made new contacts and refreshed old ones.

Our next member event is an online session on Conflicts from Hamish Lal on 18^th February.

https://academyofexperts.org/events/conflicts-of-interests-hamish-lal/