EWHC 3166 (IPEC)
This was a copyright dispute relating to two celebrity bedding ranges for Kylie Minogue and Caprice. In HHJ Clarke’s judgment, there was a section headed “Problems with Expert Evidence”, which began with a reminder that under CRP 35.3, an expert’s overriding duty is to the court. PC35 provides that “Experts and those instructing them are expected to have regard to the guidance contained in the Guidance for the Instruction of Experts in Civil Claims 2014 at www.judiciary.gov.uk”. The Judge emphasised that the Guidance “does apply if experts who were formerly instructed only to advise, are later instructed as an expert witness to prepare or give evidence in the proceedings”. As another reminder, the Guidance notes at paragraph 32 that:
“11. Experts must provide opinions that are independent, regardless of the pressures of litigation. A useful test of independence is that the expert would express the same opinion if given the same instructions by another party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates or mediators.”
One of the experts was originally asked to provide an informal opinion based on instructions, which asked the expert only to look at similarities which were supportive of the client’s case of copying, and not differences which might undermine that case. The Judge highlighted that the expert should have recognised the difficulties of moving from a role in which he was specifically asked to identify evidence that supported one party’s case, to a role as a court-appointed independent expert with requirements of impartiality and objectivity, if necessary starting the analysis afresh. That would have established compliance with the duties owed to the court. The Judge also considered that those instructing the expert should also take some responsibility for this failing. The Judge said this:
“I should make clear that I do not doubt Mr Herbert’s bona fides or professionalism. I believe that he came to court to express his honestly held opinion about the case. However he came to it initially in a role which specifically required him not to approach his assessment objectively and impartially (and I do not criticise him for this – he was specifically hired to produce advice to support Ashley Wilde’s case) and did not amend his approach when his role changed to that of an expert with the duty to be independent, objective and impartial. That is where, I fear, he went wrong, and I consider that he has, perhaps without realising it, maintained a partial approach which has caused him to identify too closely with his client’s case.”
This meant that the court could not accept the expert’s opinions as being reliable, especially as those opinions were the same as the opinions he reached when he was carrying out “a purely partisan exercise” to support Ashley Wilde’s case.