Expert Witness Flashcards
Most important expert witness case in Scotland?
Kennedy vs Cordia (Services) LLP [2016]
(Home care employee visited an elderly client on a winters night in Scot
What made Kennedy vs Cordia (Services) LLP [2016] so important?
Gave guidance on use of expert witnesses:
(i) the admissibility of such evidence
(ii) the responsibility of a party’s legal team to make sure that the expert keeps to his or her role of giving the court useful information
(iii) the court’s policing of the performance of the expert’s duties, and
(iv) economy in litigation
Lecture note: An expert witness is not there to provide an opinion on anything that is a matter of law.
What were the findings of [dead] Kennedy vs Cordia (Services) Ltd [2016] in terms of admissibility of evidence?
(i) whether the proposed skilled evidence will ASSIST the COURT in its task;
(ii) whether the witness has the necessary KNOWLEDGE and EXPERIENCE;
(iii) whether the witness is IMPARTIAL in his or her presentation and assessment of the evidence; and
(iv) whether there is a RELIABLE BODY of knowledge or experience to UNDERPIN the expert’s evidence.
[Court jester assisting carrying tables, keeps dropping them because he’s rubbish - doesn’t have the necessary knowledge and experience. His costume is half and half - from one side purple - the queen’s favourite colour and the other side the kings (yellow). He’s trying to present as impartial to both. The reason he’s rubbish is because he’s an imposter who killed the real jester, whose body is under the table.]
Older case law on the necessity of expert evidence?
R v Turner
[1975] QB 834
What was the finding of James Langley v South West Regional Health Authority [1983] in relation to expert witnesses?
Often cited as authority for the entitlement of the claimant to recover the costs incurred in presenting a claim. This case concerned the costs of a claims consultant who could have been, but was not, called as an expert witness.
The consultant had prepared schedules to the arbitration pleadings containing matters of expert opinion and were not simply a useful presentation of the facts upon which the claimants’ claim was based.
The latter, even if delegated to an outside expert, will not normally be regarded as calling for the expression of an expert opinion and therefore not be recoverable.
https://www.isurv.com/directory_record/4169/james_longley_v_south_west_regional_health_authority
What is the difference between an expert witness and an ordinary witness (witness of fact)?
The expert can provide an opinion, whereas the witness of fact may only give factual evidence.
https://www.fieldfisher.com/en/insights/expert-witnesses-the-independence-factor
When can a court discount expert evidence?
- When there is bias - in fact the claim can be struck out if the expert witness is not sufficiently independent. [Refine - case law]
- Where the facts at issue are within a judge’s own understanding and therefore expert evidence is not required
Who can be an expert witness?
TBC Anyone with relevant qualifications and/or experience
[refine - case law?]
Why use an expert witness?
To furnish the court with scientific, technical or other specialist information which is likely to be outside the knowledge or experience of the tribunal.
[TBC]
Case law supporting use of an expert witness
Royal Brompton Hospital NHS Trust v
Hammond & Ors
[2000] 76 Con. L.R. 131
‘assessment of the impact of the occurrence of a particular event on the progress of a construction project seems to me to be something which requires, if not special skill, at least experience which the court does not possess’
Refine
Case law regarding adjudicators’ fees
Castle Inns (Stirling) Ltd v
Clark Contracts Limited
[2009] CSOH 174
Who or what determines how much weight is given to evidence from an expert witness?
The weight to be given to the evidence provided by the expert witness is a matter for the judge
What was the ruling in Davie [Croquette] v Magistrates of Edinburgh [1951] S.C. 720 in respect of expert witnesses?
- The court was not bound to accept the conclusions of an expert witness, even where the expert evidence was uncontradicted
- Formal corroboration is not required for expert opinion evidence in the same way as for factual evidence
- The Judge should not have relied on material which was not put to the expert witnesses, and on which they did not give evidence
From lecture notes
What is the meaning of ipse dixit?
- Latin for ‘he himself said it’
- a claim or statement that someone makes solely based on their own authority, without supporting evidence or proof
(In logic it is known as the bare assertion fallacy)
Duty of an expert witness in the courtroom
(and associated Scottish case law?)
‘*to furnish the Judge or jury with the
necessary scientific criteria for
testing the accuracy of their conclusions,
so as to enable the Judge or jury to
form their own independent judgment
by the application of these criteria to the facts proved in evidence*’
Davie v Magistrates of Edinburgh [1951] S.C. 720 (1953 whenever quoted online??)
How much weight is given to the testimony of an expert witness?
- The conclusions of the expert may hold significant weight in the outcome of a case; but equally they may not.
- The final decision rests with the judge, who is under their own obligation to provide a closely reasoned judgment that sets out how they weigh each piece of evidence, and how it has informed how they have concluded.
What is every lawyer’s favourite case in respect of duties of the expert witness? (informal reference)
The Ikarian Reefer
What is every lawyer’s favourite case in respect of duties of the expert witness? (formal case reference)
National Justice Compania Naviera SA v
Prudential Assurance Company Limited
[1993]
2 Lloyds Rep 68
(aka - * the Ikarian Reefer*)
What are the duties of the expert witness, as set out in Ikarian Reefer ruling?
I COLD ACTS
Independent product (beyond pressures of litigation)
Assist the Court (with objective, unbiased opinion within expertise)
Facts and Omissions (must not omit facts that detract)
Limits of expertise (make clear if question/issue is outside limit)
Insufficient Data (then state that opinion is provisional)
Not Advocate
Change of view (communicate without delay)
Their report is the whole Truth (or qualify otherwise)
Supporting data (provide to the other party)
Background: Eight expert witnesses were brought in. The judge (Cresswell J) thought that several of the expert witnesses misunderstood their duties. He took the opportunity to clarify.
Acronym to remember duties of the expert witness as per Ikarian Reefer?
(bonus for formal reference to case)
I COLD ACTS
National Justice Compania Naviera SA v Prudential Assurance Company Limited [1993]
From Ikarian Reefer: Duty of expert witness in relation to evidence being an independent product?
(bonus for formal case reference)
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.
National Justice Compania Naviera SA v Prudential Assurance Company Limited [1993]
From Ikarian Reefer: Duty of expert witness in relation to change of view?
If, after exchange of reports,
an expert witness changes his view on a material matter
having read the other side’s expert’s report (or for any other reason),
such change of view should be communicated
(through legal representatives)
to the other side without delay
and, when appropriate, to the court.
National Justice Compania Naviera SA v Prudential Assurance Company Limited [1993]
From Ikarian Reefer: Duty of expert witness in relation to omissions?
National Justice Compania Naviera SA v Prudential Assurance Company Limited [1993]
An expert witness should
state the facts or assumptions
upon which his opinion is based.
He should not omit to consider material facts that could
detract from his concluded opinion
What was significant re McTear v Imperial Tobacco 2005 2 SC 1?
Pursuer’s expert witnesses performed gratis
(and had been committed to anti-smoking causes)
this brought into question their independence.
‘justify scrutiny of each of their evidence, so as to see to what extent they complied with their obligations as independent expert witnesses and how soundly based their views were.’
Case law on principles to decide if expert evidence is necessary
British Airways Plc v
Spencer and 11 others (present trustees of the British Airways Pension Scheme)
[2015] EWHC 2477 (Ch)
What was the ruling in respect of expert evidence from British Airways Plc v Spencer and 11 others (present trustees of the British Airways Pension Scheme) [2015] EWHC 2477 (Ch)?
Confirms that for the purposes of CPR 35
that expert evidence should be admitted if it is
necessary to resolve issues and
may be admitted in order to
assist the court to understand the issues
as long as it would be
proportionate to do so.
What is ‘hot tubbing’?
- Formally known as concurrent expert evidence
- A procedure at trial whereby experts in any discipline give their evidence simultaneously
What changed as a result of Jones v Kaney [2011] UKSC 13?
- An expert can now be sued in tort and contract in England and Wales for their work done in and in preparation for court whether or not the matter proceeds to trial
- The immunity has been waived in relation to all civil, family and criminal matters
- The ruling has retrospective effect
Not yet in place in Scotland but has put the cat among the pigeons….
What is the guidance for instructing expert witnesses in Scotland?
There is nothing mandatory, unlike England and Wales which have mandatory rules set out in Part 35 of the Civil Procedure Rules.
Law Society of Scotland offers a practise note
What is the mnemonic for the London Centenary Principles?
JEL leafier
