Legal Mind Case and Commentary No 41: Expert Witness Requirements - [Koch HCH, Jansen F, Ma SYA, Hughes R and Proctor B, February 2023]
25/01/23. This is the forty-first in a series of Case reports and Commentaries from Professor Koch and colleagues.
Background
Two recent cases reviewed by Bond Solon and by Civil Litigation Brief have focused on Expert Witness Requirements and responsibilities. The key components and learning points are summarised here and discussed.
Case 1
Bakrania and Anor v Shah and Ors [2019] EWHC949(Ch)
This case centred on the sale of a property owned by fraudsters. The claimants obtained a valuation report which expressed the opinion that the purchase price was well below the market value, however, when the joint meeting of experts took place, the claimant’s valuer revised his opinion and agreed with the defendant’s valuer acting for that the sale price was at or around market value.
The claimants were thus faced with an unfortunate change of view by their valuer.
Commentary 1
The expert, according to Gordon Exall (Civil Litigation Brief, 5.12.22), was acting perfectly appropriately in changing his view, which raises questions of how robust that view was in the first place. It also begs the question as to what extent the evidence was questioned carefully or diligently prior to issue. It is crucial that an expert is confident that their initial opinion is robust and would withstand scrutiny, however, if and when faced with additional ‘new’ information, this must be considered. In the light of this “new” information, the expert may, or mat not, decide to alter their initial opinion.
Case 2
Muyepa v Ministry of Defence [2022] EWHC/KB/2022/2048
The claimant, a former soldier, commenced proceedings against the MOD seeking damages for personal injury arising out of an alleged Non-Freezing Cold Injury (NFCI). The case turned on whether the claimant had been honest about the existence, causation and extent of the NFCI symptoms.
Ten expert witnesses were called, five for each side. Mr Justice Cotter criticised one expert for at times adopting the twin roles of expert and judge of facts, and for disregarding their duties as independent experts (Bond Solon report 1/12/22). There was debate about the credibility of the expert witness changing their view on a material matter having read the other side’s expert report.
Commentary 2
CPR rules provide that the expert should consider all material facts including those that might detract from their own opinions. An expert should not usually be criticised for changing his or her opinion if matters have occurred after they have prepared a written report. This must, however, be communicated to both sides ‘without delay’.
Conclusion: When compiling an expert report, the expert witness must ensure he/she has all the requisite information necessary on which to base his/her opinion. This opinion can be modified in the light of new evidence provided the initial report is judged to be robust and credible. It should not be amended purely because another opinion or point of view has been forwarded which the expert finds to be more comprehensive or credible.
Authors
Prof. Hugh Koch, Dr Rosalie Hughes and Dr Barnaby Proctor are all members of HK Associates.
Dr Friso Jansen, Senior Lecturer in Law at Birmingham City University.
Professor Koch is visiting professor in Law and Psychology at Birmingham City University.
Dr Siu Yung Alan Ma, Lecturer in Law at Birmingham City University.
References
Bond Solon (2022) Judge Highlights Expert Witness Requirements. www.bondsolon.com
Exall G (2022) An ‘unfortunate change of view’ by an expert. Civil Litigation Brief.
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. LCB Publishing. Manchester.
Previous commentaries have covered
Koch HCH, Jansen F, Maisey D and Natha F (2022) Legal Mind Case and Commentary No. 40 Expert witnesses, beware unconscious bias. PIBULJ. November.
Koch HCH, Jansen F, Potts M and Browne G (2022) Legal Mind Case and Commentary No. 39 “Keep the Joint Statement Concise and Logical”. PIBULJ. September.
Koch HCH, Jansen F, Grundy L and Robertson C (2022) Legal Mind Case and Commentary No. 38 The Importance of being an independent expert. PIBULJ. August.
Koch HCH, Jansen F, Savage J, Aldridge M and Nokling K (2022) Legal Mind Case and Commentary No. 37 Legal Mind Cases on Dishonesty. PIBULJ. January.
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