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Legal Mind Case and Commentary No 18: Stretching an expert's impartiality - Professor Hugh Koch

Case: Enders Stretch-v-Newcastle County Council

This case is of interest because of the issues of expert evidence which are of universal application. The case involves Newcastle City Council giving permission for a ‘pop-up’ shopping mall in Newcastle. Stretch, the appellant, appealed the decision to the Magistrates Court and introduced the evidence of an expert, (name provided).

The District Judge gave a long and detailed judgement, part of which related to the evidence of the expert. This was reviewed by Exall (2018).

These points are summarised here:

  1. There was concern about the weight given by the expert to his evidence presented, and the ambiguity in his use of phrases such as “both positive and negative impact”.

  2. The response by the expert to being instructed was in a partial manner, i.e. to only look at negative effects.

  3. Issues arose about the expert’s independence and impartiality. The expert conceded aspects of his interpretation of data was incorrect, but he gave no explanation for why this error occurred.

  4. There were few references in the report to the underlying evidence or data on which assumptions were made.

  5. Lack of understanding of his role as an independent expert in assisting the court.

  6. There were a number of examples of errors in his report.

  7. At no point in the proceedings did he seek to correct such errors or to provide any clarification that his opinion and conclusions had been reassessed or remained the same in light of those corrections.

  8. At several times, the expert’s answers were evasive.

  9. At times, his evidence appeared to be partial or adversarial to paint one party in a disadvantaged light.

  10. These points suggest he had not read or thoroughly understood the documents he had been provided with.

  11. In conclusion, the judge stated that:

“The concerns about his evidence cannot be dismissed as presentational, they are more fundamental than that. It was also a little late to acknowledge the failing in underlying detail. In my view his responses did not demonstrate any real acceptance of those criticisms nor that he understood the impact of them.”

Commentary

The several highly critical comments and observations made by the District Judge make for salutary reading. All experts reading these would, in all probability, distance themselves and their own behaviour from the behaviours criticised by this judge. However, to avoid repeating the adverse action described in the final point (11), it is critical that in each and every case an expert reflects during his preparation and subsequently on his/her own behaviour in areas of accuracy, completeness, independence, impartiality and logicality. These areas are determined by one’s ethical stance, under the civil procedural rules, and also by the micro-skills of effective communication whereby an expert communicates his/her findings in an impartial, neutral and balanced manner. It is this reflection on one’s behaviour and one’s response to new or challenging information which enables the expert to learn and ‘raise his/her game’ as an influential and valuable provider of expert opinion.

Authors

Professor Hugh C.H. Koch.

References

Exall G (2018 An expert’s impartiality can only be stretched as far). September 3rd, 2018.

Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. LCB. Manchester.

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