What can expert witnesses learn?
Expert Witness Expert Witness: Mr. T
Mr. T is another very experienced expert witness. A Chartered Surveyor of many years standing, he had been commended in 2014 by a judge in the Central Family Court for approaching a complex valuation with the “required degree of expertise and independence” expected of an expert witness.
In 2019, he was criticised in the Upper Tribunal (Lands Chamber) for not having inspected the objectors’ properties and, therefore, not being able to give a properly evidenced opinion.
He accepted the criticism made by the Deputy President of the Tribunal− that he should have applied to the tribunal when his solicitors refused to allow him the time to inspect the properties. He understood that he should not have allowed his instructing solicitors to limit his ability to fulfil his overriding duty to the court.
His evidence was not given much value by the judge in his judgment.
That was a stinging criticism, but one which Mr. T had to, and quite rightly did, accept. Mr. T went further when writing his next report for a new and unrelated case. He drew the court’s attention to the criticism made in the 2019 case, giving the case reference and the paragraph number in the judgment. He openly admitted where he had been at fault and went on to describe how he had gone back to the expression of the duty to the court in CPR35. He also made sure, in the instant case, that he was properly complying with his duty to the court.
Result? The Tribunal in the second case found him to be a credible, reliable witness with whom they agreed.
Mr. T’s approach? Transparent admission of fault.
There should never be any substitute for honesty and integrity. An expert must know the scope of their role and their duty and be able to express and demonstrate that they are fulfilling it at all times in their work as experts.
Criticism and challenge will come.
If it is well founded (i.e. if the expert has erred or not done something which they should have done), the expert must immediately accept that and not try to defend the indefensible. The longer they fight the point, the more their credibility will be destroyed.
This applies to future cases too. If the expert is proactive and transparent about any past errors, the scope for further cross-examination will be reduced. For example, in Mr. T’s case, he was cross examined about the error in the previous case – until the judge intervened and told the barrister to move on.
The expert should then go on to demonstrate what they have done to correct past mistakes and how they have guarded against a repetition in the future.
If the criticisms are not well founded, then the expert should say so. This is not about admitting fault where there is none.
Conclusion
Bond Solon urges experts in all disciplines to make themselves fully aware of their role and their duty under the rules of court. The duty to help the court and to be independent applies in all the UK jurisdictions whether through case law or through the rules of court in England and Wales. An expert witness must read, understand the rules and apply them.
Bond Solon’s expert witness courses always reference the duty of the expert. The trainers are ready to discuss the application of that duty and the challenges that the expert will face as they seek to do so.
In reflecting on his experiences, Mr. T was well aware that whilst he had taken fifty years to build his reputation, that reputation could be destroyed in less than 50 seconds.
For more information about Bond Solon go to
https://www.bondsolon.com. This article was first published on the Bond Solon website in September 2023 and is republished here with our thanks.
THE REPORT | DEC 2023 | ISSUE 106 | 121
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