Severe criticism is the polite way of describing what some experts have endured in TCC judgments this year. The Liverpool Museum case has been one of the clearest examples of why both solicitors and experts must get it right when giving expert evidence to the court. In Liverpool Museum, the Judge said that the expert was “almost wholly unimpressive”, “wholly unconvincing” and “he accepted that he was ‘seeking to defend the indefensible’”.
Clearly, this expert was not the right person for the job: he failed to understand (or have explained to him) the very basic duties of an expert such as:
- An expert’s overriding duty is to the court, not his client. Expert evidence must be truthful, impartial and, crucially, independent.
- An expert must have the right skills and experience to give evidence on points in dispute. This includes experience of giving evidence persuasively and appropriately in court.
- An expert must be truly independent. Solicitors, clients and experts must be careful to ensure that any connections between them are disclosed.
Judicial criticism and strict rules on expert costs will mean that instructing experts efficiently and appropriately will remain under scrutiny throughout 2014 and beyond.