One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial.
Held: There is no property in an expert witness and any contract purporting to impose an obligation to give evidence for only one side in a dispute would be contrary to public policy. The plaintiff could not prevent the defendant from adducing the evidence of the expert, who could properly be made the subject of a subpoena to appear at trial.
Lord Denning MR said: ”So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting facts from him and from calling him to give evidence or from issuing him with a subpoena . . There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so.’
and ‘Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned . . subject to that qualification it seems to me that an expert witness falls into the same position as a witness to fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts. In this particular case the court is entitled to have before it the documents in question and it is entitled to have the independent opinion of the expert witness on those documents and on those facts – excluding, as I have said, any of the other communications which passed when the witness was being instructed or employed by the other side.’
and ‘The expert witness can be seen beforehand and give a proof on these limited matters I have mentioned and give evidence accordingly.’
Judges:
Lord Denning MR
Citations:
[1979] 1 WLR 1380
Jurisdiction:
England and Wales
Cited by:
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Versloot Dredging Bv v Hdi Gerling Industrie Versicherung Ag and Others ComC 8-Feb-2013
The defendants had engaged an expert witness, and he had undertaken investigations at the claimant’s premises. The claimant now sought an injunction to restrain the defendants from preventing the expert talking to them independently of the . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Evidence
Updated: 11 June 2022; Ref: scu.245755
