PI Brief Update

It's All Down to Evidence - Bill Braithwaite QC, Head of Exchange Chambers

28/12/15. I know there’s an element of repetition about my blogs, but I think that’s because some points crop up again and again, and seem to me to be fundamentally important. Sometimes, when I read reports of cases which have been decided by the courts, I'm amazed that one side or the other seems to have had such poor evidence. In the world of personal injury litigation, I think it might be true to say that almost all cases are won or lost on the basis of the evidence. When litigators lose sight of that fact, they often come unstuck. So many of the “interesting” points of law which are decided by courts are being litigated because the evidence has not decided the issue. Of course, in order to obtain the evidence, one has to know what the issues, both factual and legal, are likely to be, and that often requires experience.

I had a consultation not long ago with two experts, discussing a common and straightforward point which frequently arises in catastrophic personal injury litigation, and I was left without the foggiest idea of what the right answer is. As there’s at least a million pounds riding on this issue, it would be nice if I felt that the experts had guided me to the solution. Luckily, we have time to put things right, but that might involve using different experts, with the obvious costs penalty. Balancing cost and benefit, though, it looks sensible.

If new experts can give a reliable indication of the rights and wrongs of the problem, we will know where we are, and we can negotiate accordingly.

Some people (including the Court of Appeal?) might call this “expert shopping”, using that phrase in a critical way. I would disagree fundamentally, provided that the litigator does not simply look for an expert who will toe the party line. If we all made it our business to find and use experts who were truly expert, many issues would vanish.

Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaiteqc.com/blog/

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