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Judge’s opinion of Expert: Partiality and arrogance - Koch HCH, Jansen F, Stockton C and Huntley F

16/03/21. This is the thirty-third in a series of Case reports and Commentaries from Professor Koch and colleagues.

Background

Another fascinating civil claim case described by Gordon Exall, Barrister, Kings Chambers in which there were robust criticisms of the claimant instructed expert, and a final concluding statement that stated, “the instruction of … was ill conceived, … and a great deal of money and court time has been wasted by the manner … about this case and giving of evidence.” The several issues about the provision of expert evidence, both written and oral is discussed.

Case: Hatfield v Drax Power and SG Transport 17.08.18. Claimant driving lorry that came off road causing him serious injury. He blamed road surface and defective tyres. Expert evidence from both parties.

The Judge made the following comments (summarised below) about the expert evidence provided by the claimant-instructed expert, Prof. V. who was called in respect of vehicle dynamics and stability: -

  1. Prof. V. worked and lived in the USA, and English is not his first language.

  2. He had no proper understanding of his duties as an expert.

  3. In his report, he did not evaluate alternative (points of view) and, in particular, the alternative explanation for the accident being put forward by the defence experts.

  4. Prof. V.’s written evidence, especially in the Joint Statement, was extraordinary and arrogant.

  5. This was also evident in responses to Part 35 questions and failed to assist the Court in dealing with the matters put to him and failed to realise that it was for the judge to make the findings of fact in this case (not Prof. V.)

  6. This arrogance came over in the witness box, with a belief he was right and everyone else was wrong; his behaviour in court was unacceptable (head shaking and facial disgust).

  7. He displayed defensive and unhelpful attitude in court, and was claimant-oriented.

Commentary: In general, expert witnesses have, as we know, several duties under the Civil Procedure Rules. They are charged with having a duty to the court, in which they are impartial and independent of either party involved. Those duties need to be displayed and played out when interviewing a claimant, preparing a written report, responding to Part 35 questions and when giving evidence and being examined in court.

In particular, this duty and the expert’s belief of the correctness of this duty, can be illustrated by the specific micro-skills or social skills that the expert displays at any of the above identified stages but, in particular (in this case), in the witness box.

The judge clearly picked up (and objected to) the following inappropriate micro-skills: -

  1. Adherence to the claimant’s case, rather than an impartial appraisal of evidence from both sides in front of the court.

  2. Insufficient, if not absent, appraisal and evaluation of a range of possible opinions in this case.  

  3. Strident and imbalanced adherence to his original point of view as laid out in his written report.

  4. Insufficiency of balanced evidence presented to the court making a proper evaluation difficult.

  5. An exaggerated view of the correctness of his opinion when cross-examined.  

  6. An attention-seeking and inappropriate set of behaviours when sitting in court, having given his evidence.

Image cc flickr.com/photos/new_and_used_tires/6842127640/

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