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Legal Mind Case and Commentary No 25: Giving a range of opinions on psychological cases: Independence, Objectivity and Impartiality of CPR Part 35 experts - Koch, HCH., Nokling, K. E. and Nolan, L

10/01/20. This is the twenty-fifth in a series of Case reports and Commentaries from Professor Koch and colleagues.

Legal Mind Case and Commentary No. 25

Case: Ashley Wilde Group v. BCPL Ltd (2019) EWHC 3166

Background:

This case was a copyright dispute relating to two celebrity bedding ranges (Kylie Minogue and Caprice Bourret). The dispute relating to whether copies had been made by one partly inappropriately under copyright law, with an injunction being sought to restrain one party from infringing its copyright. The defence was that the product design was independently made, and it did not infringe any existing copy.

The judge heard evidence from two experts in textile design, both experienced in their field, one significantly more experienced in giving evidence than the other.

The judge summarised the guidance, pursuant to CPR 35.3, within the expert’s overriding duty to the court, and in particular the need for experts to provide opinions that are independent and take into account all material factors before them.

She opined that one expert (Mr H.) maintained a partial approach which caused him to identify too closely with his client’s case.

It showed, in the Judge’s opinion, a lack of objectivity and impartiality. There can be a range of opinions offered by independent, objective and impartial events.

She opined that the opposing expert (Mr C.) was more rigorous.

In a review of this case, Exall (2019) reinforced the importance of understanding the key criticism made of one expert’s evidence – namely the lack of independence, objectivity and impartiality – and concluded that this requirement was “missing from about 98% of the expert reports” he is asked to consider. This case, according to Exall, highlights the importance of an expert looking at both sides of the issue or issues upon which they are instructed to report.

Practice Directions 35 3.2 gives detail of the mandatory items an expert’s report must contain:

Where there is a range of opinions on the matters dealt with in the report: -

a) summarise the range of opinions and

b) give reasons for the expert’s own opinions

This regular omission is rarely raised critically in case conferences or by the court (Koch, 2016).

Changing the context from Copyright Law to Personal Injury Law, there is often an assumption that when considering the possibility of a psychological injury following a single index event such as, for example a road traffic accident or work accident, that the range of possible opinions which include PTSD, Acute Stress Disorder, Adjustment Disorder, Depressive Disorder, and Phobic Anxiety or Generalised Anxiety disorders will always have been considered. However, the two specific mandatory stipulations of providing this range explicitly and giving reason for why the expert has chosen, for his/her opinion, one specific opinion, should be given greater credence but without this exposition being a ‘War and Peace’ addition to an already lengthy, albeit concise, report.

Authors

Prof. Hugh Koch, Dr. Kirsten Nokling and Dr. Lisa Nolan.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University (www.cv.hughkoch.com).

References

Exall, G. (2019). Civil Procedure Back to Basics 72. Civil Litigation Brief.com (29.11.19).

Koch, HCH. (2016). Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch, HCH. (2018). From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. Expert Witness Publications. Manchester.

Koch, HCH. (2019). Legal Mind Case and Commentary: Publication Directory 2019. Expert Witness Publications. Manchester.

Image ©iStockphoto.com/stacey_newman

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