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What the Judge thought of the expert evidence - (Koch HCH, Rydin-Orwin T, Riggs E, Gorman J and Jansen F, 2020)

This is the thirty-second in a series of Case reports and Commentaries from Professor Koch and colleagues.

Legal Mind Case and Commentary No. 32

Case: Pepe’s Piri Ltd. vs. Junaid and Food Trends ltd. (and others). 31.7.19

Citation No.: [2019] EWHC 2097 (QB)

This case involved the claim for damages due to alleged injuries to the claimants’ business by unlawful means. The facts of this case are not relevant to this commentary. Whatis relevant is the Judge’s perception and comments about the quality and appropriateness of the expert evidence provided by the two chartered accountants. The feedback and appraisal are relevant to any expert witness providing evidence to the civil court.

Areas of criticism of one expert (VC)

1) Evidence given was similar to that of an advocate rather than that of an expert appointed under Part 35 of the Civil Procedure Rules (CPR)

2) Unsatisfactory aspects of the written and oral evidence: -

a) Introduced matters outside his expertise including a critique of the claimant’s conduct of litigation rather than the specific question (asked) of an assessment of claimed losses.

b) Explicit aim to present the claimant’s case in the “most favourable light”. This was inconsistent with the duties of an expert under CPR Pat 35. An expert witness should present evidence which is uninfluenced by the pressures of litigation and contain independent assistance by way of objective opinion.

Areas of criticism of other expert (SB)

The judge was less critical of this expert but did state that his opinion involved “a considerable degree of speculation”. The expert amended his quantification of claimed losses downwards.

The judge reminded himself (and presumably the Court) that ultimately the decision as to the extent of any losses was a matter for him not for either expert. Although this could be of assistance it was not determinative.

Commentary:

The above criticisms of both experts is relatively self-explanatory.

In the case of the first expert (VC) the issue of independence and impartiality had clearly not been understood and the expert appeared to be swayed by the wish to support the claimant’s case rather than be an independent and impartial expert whose responsibility is primarily to the court.

It is known that the whole process of instructing an expert, commenting on the expert’s report and opinion and subsequent discussions, whether at case conference or pre-trial can be a source of pressure, implicit or explicit, on the expert to amend certain aspects of his/her evidence. Experienced experts, as well as experienced Barristers, are cognisant of these pressures.

The criticism of the second expert (SB) is reminiscent of a similar view of determination centred on opinions about truthfulness – it is widely held that whereas an expert can provide opinion and evidence about reliability and consistency of evidence, it is for the Judge to determine whether a claimant has been untruthful or “malingering”. The challenge for all experts providing evidence in civil claims is to ensure that their actions and approach are consistent with CPR rules, especially those relating to impartiality and independence. This is apparent both in the overall attitude of the expert and also their micro-skills of communication, both written and verbal.

Authors

Prof. Hugh Koch, Dr Tracy Rydin-Orwin, Dr Emma Riggs, Dr Jackie Gorman and Dr Friso Jansen.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University (www.cv.hughkoch.com).

References

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

Koch HCH (2019) From Therapist’s Chair to Courtroom: Understanding Tort law Psychology. Expert Witness Publications. Manchester

Koch HCH (2019) Legal Mind Case and Commentary: Publication Directory 2019. Expert Witness Publications. Manchester

Previous commentaries have covered

Koch HCH and Bowe J (2020) Mind Case & Commentary No. 31 Fixing mistakes. PIBULJ. August 2020.

Koch HCH, Fulford L, Parmar B, Francis A and Davies M (2020) Legal Thoughts: How to Improve Lawyer Wellbeing Post-COVID-19. Expert Witness Journal. Summer 2020.

Koch HCH, Sutton E, Fernandez-Ford L and Jansen F (2020) Legal Mind Case & Commentary No.30 The Joint Report and Agendas. PIBULJ. June 2020.

Koch HCH, Medley A and Pelser C (2020) Legal Mind Case & Commentary No.29 Risks of Unbalanced and Misleading Expert Evidence. PIBULJ. May 2020.

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