Admissibility and requirements of expert evidence

There has been a recent series of cases that have looked at the admissibility and requirements of expert evidence; while these cases are not directly related to housing disrepair there are general themes that can be drawn from them and applied to all expert evidence.

Griffiths v TUI (UK) Ltd [2021] EWCA CIV 1442

The first case we look at in this article is the Court of Appeal case of Griffiths v TUI (UK) Ltd [2021] EWCA CIV 1442, this case concerned an unfortunate traveller who feel ill on holiday in Turkey and sued the holiday provider. Part of the evidence the Claimant relied upon was an expert report of Professor Pennington, which was described as “short” and “minimalist”, it was also the only evidence that related to causation as the defendant did not produce expert evidence in time.

The Judge at first instance dismissed the claim as they were not satisfied that the Claimant had discharged their evidential burden. This was appealed and on appeal the Claimant’s case was successful. However, on a second appeal the Court of Appeal found that the Judge at first instance was correct.

The Judge at first instance with which the majority of the Court of Appeal agreed, made a number of important points in her judgment including that the court “is not a rubber stamp to just accept what someone has said” and that if causation is clearly in issue medical experts should be providing reasoning for their conclusions. In addition, of particular importance was the consideration that where there are other possible causes it is not appropriate to not engage with them at least in some way, if the expert disagrees some reasoning should be given.

At the Court of Appeal hearing, Lady Justice Asplin continued in this vein stating that a “mere assertion by an expert is of so little weight that it is likely to be worthless”.

Comment

There are a number of practical takeaways from the judgment which are relevant to the housing sector and the constant criticisms that providers are letting tenants live in poor housing conditions. Firstly, Judges will expect reasoning behind an expert opinion, it is not sufficient to state something as true without reasoning to show why this is the correct conclusion. Even if the reasoning is short it is important that an attempt is made.

Secondly, when considering expert evidence produced by the other side be mindful of the reasoning or lack thereof, as cogent arguments can clearly be made which can stop claims very effectively, this is particularly true for landlords in disrepair claims where it is not uncommon for claimant’s expert evidence to provide for a series of assertions with no substance.

Finally, when producing an expert report it is important to consider other options for what is being observed and explain why these are not the cause here. This was part of the undoing in this case as the expert had not paid sufficient attention to other possibilities such as the food having been consumed in other places.

So often we see reports from tenant’s experts which make fanciful speculation on alleged defects without any justification for such opinions being held. The courts should no longer except such assertions unless they can be backed up with hard evidence and proper diagnostic pathology.

Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care Action [2021] EWHC 2595 (TCC).

The second case we want to cover in this article concerning expert evidence is the High Court case of the Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care Action [2021] EWHC 2595 (TCC).

This concerned a judicial review case with the Secretary of State for Health and Social Care (HSC) seeking to rely upon expert evidence of an economist. In this case, the expert had already produced two reports both of which were objected to by the claimant and the Judge refused HSC the opportunity to produce a third. The expert reports in support of HSC had in the mind of Judge failed to comply with CPR 35 in each of the two attempts and the Judge was loathe to offer them a further chance when the defect had been identified previously, the remedy was clear and yet it was ignored.

The Importance of complying with CPR Part 35

The Judge reiterated that experts owe an over-riding duty to the court and the underlying basis of CPR 35 is that of independence and fairness. Additionally, an important component of expert evidence is that both parties have access to the same material. This was not the situation in this case. It was clear that the expert had had internal discussions with someone in HSC and this material had not been provided to the court or the other side which meant the evidence could not be appropriately evaluated.

Comment

The Judge stated that it is vital that experts and those instructing them are familiar with CPR 35 and its accompanying Practice Direction along with Guidance for the Instruction of Experts in Civil Claims 2014. If this advice is followed there is no reason why expert evidence should fall foul of the rules.

This case also demonstrates the importance of disclosure and how it is clearly a two way street. It is incumbent on landlords in the Pre-Action Protocol for Housing Conditions Claims to provide disclosure, but it is important to remember that the tenant is under a duty as well and any evidence that their expert is relying on should be provided to the landlord such that the evidence can be evaluated properly.

The final point to note from this case is, detailed reading of any expert evidence and an awareness of the language used and what they are basing their findings on is vital. If it appears as though documentation outside of your client’s or expert’s knowledge has been relied upon this should be provided and, if not, the court has the power to prevent the evidence being relied upon.

Beattie Passive Norse & Anor v Canham Consulting Ltd [2021] EWHC 1414 (TCC)

The third and final case in this mini-series is the High Court case of Beattie Passive Norse & Anor v Canham Consulting Ltd [2021] EWHC 1414 (TCC) and the presiding Judge was the same as the second case considered. The claimants had sought £3.7m in damages and were awarded the sum of £2,000 in a previous judgment. This particular judgment concerned who would pay the costs.

The expert for the claimant was found to have embellished and exaggerated his evidence and did not appear to approach his evidence from an objective point of view, as such the Judge preferred the expert evidence of the defendant in its entirety.

The Judge noted a worrying trend within litigation that in spite of the rules and guidance provided in CPR Practice Direction 35 it appears experts are increasingly subjective in their approach and are increasingly influenced by the pressures of litigation.

Comment

There are a couple of takeaways from this case. An expert should not simply agree with everything put to them by the other side, rather, it is important for experts to have considered other options, approach the questions objectively and come to their own conclusion rather than the conclusion that is asked of them. If experts are given the scope to do this then these issues should not arise and hefty costs bills can be avoided.

Secondly, when questioning experts either via written questions or at trial it is useful to tease out why they disagree and where they are being combative or refusing to engage with alternative opinions for seemingly no reason draw this to the Judge’s attention as they are there to assist the court not their own party.

How Birketts can help?

We have a specialist team of litigators dealing exclusively with defending the ever-rising tide of disrepair claims that the housing sector are facing. We know the tactics used by the ‘no win, no fee’ lawyers that are bringing these claims and are fully familiar with the court rules to ensure that our clients are not seen as a soft target nor exploited for disproportionate claims for legal costs for often nominal claims in repairs and compensation.