Case Alert ‐ [2017] EWHC 2601 (Ch)

Judge considers court's approach where expert instructed by only one side

One of the issues in this case was that only one side had instructed an expert on a certain issue (but he was not a single joint expert). The judge considered what the court's approach should be in relation to his evidence. He referred to an earlier Court of Appeal decision (which had concerned a single joint expert), where it was suggested that if no direct evidence is called on an issue of fact (eg a valuation), then the expert's evidence is likely to be compelling, and the judge should depart from it only in exceptional circumstances. However, if his evidence is on an issue of fact on which direct evidence is given (eg the speed of a car at a particular time), there is no rule of law requiring the judge to favour the expert's opinion over a factual witness's opinion.

In this case, the factual basis for the decision quantum was not established by separate evidence, but was instead found in the facts found by the judge in an earlier liability judgment.

The judge concluded that "It seems to me that I am in much the same position as the judge before whom a single joint expert gives evidence. The expert evidence is there, and being relevant must be taken into account. There is no expert evidence to contradict it. It must be weighed up together with all the other evidence to reach a conclusion. Assuming that the expert evidence tendered is not based on wrong assumptions as to the facts, or incredible, it is not likely to be disregarded, but instead accepted".