Just how unbiased are independent experts when giving evidence in court? This troubling question resurfaced at a recent seminar on instructing experts in civil disputes. During the course of the Q&A session, one bold young woman remarked that, while everyone knows about the overriding duty of experts under Part 35 of the Civil Procedure Rules (CPR) to help the court on matters within their expertise, it is still largely a case of he who pays the piper calls the tune. Consequently, some experts are little more than hired guns, she suggested.
Naturally, there was much shaking of heads at this outrageous assertion. However, if one reflects on her comments, are they really so far from the truth?
Of course, there is a substantial body of experts who do follow the rules strictly and take their obligations extremely seriously. Regrettably, though, this is not always so. Two recent examples give serious cause for concern.
A lack of independence
In the first case, a defendant’s expert attended the meeting of experts ordered by the court with a view to narrowing the issues and agreeing the facts.
One defendant’s expert was asked what had become of the agreed statement. He replied that, while he and the co-defendants had been willing to prepare a statement of those facts which were agreed and those which were not, the claimant’s expert had made it clear that he would not contribute to any joint statement until he had reported back to his instructing solicitors.
In the second (and, from a lawyer’s perspective, perhaps even more startling) case, one party’s expert confirmed that a joint statement had been prepared in draft. However, the claimant’s expert had refused to put his signature to it at that stage because he had agreed with his instructing solicitors that he would first send the draft back to them to check.
When the signed statement was finalised, the expert said (and this was subsequently confirmed by the co-defendant’s expert) that once the document had gone back to the claimant’s solicitors, a significant number of items that the claimant’s expert had agreed in draft had subsequently become “not agreed”.
So, in this second example, not only had the claimant’s expert totally disregarded the duty of experts as set out in the Civil Procedure Rules, but so had his instructing solicitors. Unfortunately, both cases settled before they could next come before the court. Otherwise, there would have been some interesting submissions made to the judge.
Discussing these two examples with the author, a well-known and highly experienced expert accountant said that, if he had found himself in the position of the defendant’s expert in either of these cases, he would have done two things:
- he would have made it clear that the claimant’s expert was in breach of his duty to the court; and
- he would have warned the claimant’s expert that unless he did act in accordance with the CPR, he (the expert accountant) would write to the court explaining his concerns. On occasions, judges have ordered experts to appear before them to explain their conduct.
The expert accountant gave a further example of professionals paying mere lip service to the requirements of CPR Part 35. Following the successful judgment in one particular case, for instance, a fellow expert witness proudly announced that if he had been instructed by the opposing party, he could have put together an equally compelling argument to the contrary.
The critical Mr Goodall
Most readers will be very familiar with the case of Cala Homes v Alfred McAlpine Homes  FSR 818. The decision on the main copyright issue has now been held by the House of Lords to have been wrongly decided, but the case remains famous because of the judge’s criticism of the performance of one of the party’s architectural experts, a Mr Goodall. Mr Goodall had written an article on the role of experts before the case came to trial. In describing the stages of an expert’s involvement in civil proceedings, he gave the impression that it was only when an expert actually got into the witness box that he was absolutely compelled to be unbiased and tell the truth. He also made some unfortunate references to what he called “a rustic” (by which he appeared to mean the judge) who had decided to play what Mr Goodall termed as “a three-card trick”. Mr Justice Laddie, who did not like being described as a “rustic”, said: “The whole basis of Mr Goodall’s approach to the drafting of an expert’s report is wrong. The function of a court of law is to discover the truth relating to the issues before it. In doing that, it has to assess the evidence adduced by the parties. The judge is not a rustic who has chosen to play a game of three-card trick. He is not fair game. Nor is the truth”.
It is difficult to believe that anyone involved in civil litigation is not fully aware of the requirements relating to expert evidence. After all, CPR Part 35 was not entirely new and revolutionary.
Expert evidence guidelines
In the National Justice Compania Naviera SA v Prudential Assurance Company Ltd case (better known as the Ikarian Reefer)  FSR 563, Mr Justice Cresswell set out in unequivocal terms the guidelines relating to the expert evidence presented to the court. In particular, he said:
- Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
- An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
- An expert witness should make it clear when a particular question or issue falls outside his expertise.
- If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who prepares a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
- If, after exchange of reports, an expert changes his view on a material matter, having read the other side’s expert’s report or for any other reason, such a change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court”.
Following Lord Woolf’s subsequent criticisms about the use of experts as mere mercenaries, the Ikarian Reefer guidelines have now been effectively replicated in Part 35 of the Civil Procedure Rules.
The way forward
The solution to the problem obviously needs further debate. But perhaps the parties should customarily be required to disclose all correspondence and notes which relate to the original instructions to – and any subsequent correspondence with – experts. There may also be a case for making greater use of single joint experts (something which is commonplace in personal injury matters). Ultimately, of course, we might even move closer to the system of “expertise” which we encounter, for example, with the courtappointed experts in France.
However, one thing which is certain is that, without further judicial persuasion, there will continue to be experts determined to advocate their client’s strongest case rather than provide an independent unbiased opinion to the court.