References: [1993] 2 Lloyd’s Rep 68
Coram: Cresswell J
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:
1. 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 Whitehouse v. Jordan
2. 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.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion . . 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. . . 5. 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 has prepared 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.’
This case cites:
- Cited – Whitehouse -v- Jordan HL ([1981] 1 WLR 246, Bailii, [1980] UKHL 12, [1981] 1 All ER 267)
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . . - Cited – Polivitte Ltd -v- Commercial Union Assurance Co plc ([1987] 1 Lloyd’s Rep 379)
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . . - Cited – Graigola Merthyr Co Ltd -v- Swansea Corporation ([1928] 1 Ch 31)
Tolmin J considered the duties of an expert witness: ‘long cases produce evils . . In every case of this kind there are generally many ‘irreducible and stubborn facts’ upon which agreement between experts should be possible and in my judgment the . . - Mentioned – In Re J ([1990] FCR 193)
An expert witness should state the facts or assumption 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 provide independent assistance to the . .
This case is cited by:
- Cited – Elf Caledonia Ltd -v- London Bridge Engineering Ltd and Northern Industrial and Marine Services Co Ltd and British Telecommunications Plc and Wood Group Engineering Contractors Ltd and Eastman Christensen Ltd and Kelvin International Services Ltd and Sten SCS (Bailii, [1997] ScotCS 1)
. . - Cited – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . . - Cited – Meadow -v- General Medical Council Admn (Bailii, [2006] EWHC 146 (Admin), Times 22-Feb-06, [2006] 1 WLR 1452, (2006) 89 BMLR 143, [2006] Lloyds Rep Med 233, [2006] 1 FLR 1161, [2006] 2 All ER 329, [2006] 2 FCR 777, [2006] ACD 43)
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . . - See Also – The Ikarian Reefer CA ([1995] Lloyd’s Rep 455)
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . . - Cited – Bowman, Regina -v- CACD (Bailii, [2006] EWCA Crim 417, Times 24-Mar-06)
The defendant appealed his conviction for murder saying that evidence of other pathologists undermined the evidence given by similar experts for the crown.
Held: The court took the opportunity to give guidance on the provision of expert . . - Cited – Catlin Estates Ltd and Another -v- Carter Jonas (A Firm) TCC (Bailii, [2005] EWHC 2315 (TCC))
The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims. . . - Cited – Toth -v- Jarman CA (Bailii, [2006] EWCA Civ 1028, Times 17-Aug-06)
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . . - Cited – General Medical Council -v- Professor Sir Roy Meadow, Attorney General CA (Bailii, [2006] EWCA Civ 1390, Times 31-Oct-06, [2007] 2 WLR 286, (2006) 92 BMLR 51, [2007] 1 All ER 1, [2006] 3 FCR 447, [2007] LS Law Medical 1, [2007] Fam Law 214, [2007] ICR 701, [2007] QB 462, 92 BMLR 51, [2007] 1 FLR 1398, [2006] 44 EG 196)
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 . . - Approved – Philip Gerald Stanton; Sylvia Mary Stanton -v- Brian F Callaghan; Brian F Callaghan & Associates (a Firm); Brian F Callaghan and Partners (a Firm) CA (Gazette 15-Jul-98, Gazette 03-Sep-98, Bailii, [1998] EWCA Civ 1176, [2000] 1 QB 75)
The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for £77,000, but later while preparing a joint . . - Cited – Downey, Application for Judicial Review QBNI (Bailii, [2000] NIQB 10)
. . - Cited – Richard Wilhelm Karling (Ap) -v- Dr Basil Nigel Purdue OHCS (ScotC, Bailii, [2004] ScotCS 221, 2005 SCLR 43)
. . - See Also – Comninos -v- Prudential Assurance Company Ltd (The Ikarian Reefer no 2) CA (Bailii, [1999] EWCA Civ 3019, [2000] 1 All ER 37, [1999] 2 All ER (Comm) 673, [2000] 1 Lloyd’s Rep 129, [2000] 1 WLR 603, [2000] Lloyd’s Rep IR 230, [2000] CLC 22, [2000] 1 Costs LR 37, [2000] CP Rep 13, [2000] ILPr 490)
Mr Comninos challenged the jurisdiction of the court to have made an order for costs made against him. . . - Cited – Starred Slimani (Content of Adjudicator Determination) Algeria IAT (Bailii, [2001] UKIAT 00009, [2001] UKIAT 01TH00092)
. . - Cited – LP (Ltte Area, Tamils, Colombo, Risk) Sri Lanka Cg IAT (Bailii, [2007] UKAIT 00076)
. . - Cited – Saunder -v- Birmingham City Council EAT (Bailii, [2008] UKEAT 0591_07_2105)
EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke – Case management
Joint expert witness appointed by ET. Whether his evidence should be excluded on grounds of bias. Circumstances in . . - Clarified – Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC (Bailii, [2000] EWHC Technology 127)
cs Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses . . - Cited – Cala Homes (South) Ltd and others -v- Alfred McAlpine Homes East Ltd ChD (Bailii, [1995] EWHC 7 (Ch), [1995] FSR 818)
The plaintiff alleged that the defendant had copied its house designs after a senior employee involved in creating the designs left and eventually came to work for the defendant. The plaintiff alleged that the copying was flagrant allowing . . - Cited – Tradition (UK) Ltd, Tradition Bond Brokers Limited, Howard, Harland -v- Cantor Fitzgerald International ChD (Times 19-May-99)
When deciding whether a copying of a computer program was substantial, the test was not whether the program would run without that code. It had to be looked at as a whole allowing for the skill and labour which had gone into different sections of . . - Cited – Edwin John Stevens -v- R J Gullis and David Pile CA (Bailii, [1999] EWCA Civ 1978)
The new Civil Procedure Rules underline the existing duty which an expert owes to the Court as well as to the party which he represents. . .