Expert evidence case law update

There has been a flurry of judgments handed down in relation to expert evidence and how it should be approached.

The most recent is Robinson v Liverpool University Hospital NHS Foundation Trust & Dr Chris Mercier.

In this case the court ordered a third party costs order against the claimant’s expert, with the expert having to pay the defendant’s wasted costs in the sum of approximately £50,000.

The facts are that the claimant brought an action in clinical negligence arising from dental treatment. In support of her action the claimant relied upon evidence of Dr Mercier, a general dental practitioner. The trial was subsequently discontinued and the NHS trust sought to recover costs in the sum of £50,000 from Dr Mercier via a Third Party Costs Order.

At trial, Dr Mercier conceded that he was not best placed to give expert evidence having not carried out a similar procedure as the one in dispute for some 20 years and had no experience of obtaining patient consent for such a procedure. The claim was discontinued and the judge held that, but for Dr Mercier’s report, the claim would not have been brought and therefore the costs incurred by the defendant flowed from that action.

In its judgment, the court refers to the requirements in CPR Part 35 and PD 35 on expert evidence, making it clear that “it is the duty of experts to help the court on matters within their expertise” and that “this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid”.

The question before the court was “whether [Dr Mercier’s evidence] was improper, unreasonable or negligent, or further did it show a flagrant reckless disregard for the duties of an expert to the court”.  The answer to this was yes and the judge held that the expert had shown a deep lack of understanding of the issues and the seriousness of the role. An expert blindly sticking to their theory in spite of what is presented to them is simply not good enough, there needs to be reasoning underpinning their position.

A very interesting point within the judgment is that the court found that there was no need for the other side to police the opposition’s evidence. It was held that the defendant was not obliged to point out the inherent flaws in the evidence because the CPR provide that an expert should explain when particular questions are beyond their experience.

The case serves as an important reminder that, when parties wish to instruct experts and rely on expert evidence, they have to be mindful of their qualifications and experience. It became clear in this case that Dr Mercier was simply not well-placed to provide an expert opinion about what was in dispute.

There are two further takeaways flowing from the above. Firstly, when parties are preparing for litigation it is vital to plan and instruct qualified experts, and then stress test the evidence that is provided to ensure that the expert being relied upon actually has the requisite experience to provide opinions on what is in dispute.

Secondly, just because an expert is giving evidence at trial does not mean that they are able to speak authoritatively. Questioning during cross examination needs to be detailed and robust. This is particularly important in disrepair cases when experts supporting the claimant sometimes lack the necessary depth of reasoning.

Another recent case is that of ECU Group PLC v HSBC Bank PLC and others [2021] EWHC 2875 (Comm). This case serves as a warning to parties who rely largely on expert evidence to ensure that their expert is not being partisan. While the facts of this case are far removed from a social housing dispute the requirements regarding expert evidence are universal.

The claimants brought an action for breach of confidence in relation to share trading that took place between 2004 and 2006. Both parties instructed experts and the judge took a number of issues with the evidence provided by the claimant’s expert as follows:

“Although Mr Gladwin acknowledged in cross examination that he had made a mistake, it was clear from his evidence that he was aware of the mistake and yet he failed to mention this at the outset of giving evidence.”

“A further troubling aspect of Mr Gladwin’s evidence was that it appeared on a number of occasions that Mr Gladwin, having formed a view that the defendants had engaged in misconduct, gave his oral evidence in a way which appeared to be advancing the claimant’s case rather than providing his objective opinion.”

“A further example of his approach to giving evidence which raised a concern as to whether or not Mr Gladwin was able to give objective evidence to the court or whether having formed an opinion on the behaviour of the defendants, he sought to bolster that opinion in a partisan manner.”

The judge noted that “this is therefore a case where in relation to the substantive claims, the expert evidence plays a key role and the court has to be satisfied that the expert witnesses can properly give the opinions that they express and that those opinions have a sufficient evidential foundation to be relied upon”.

There are two key takeaways from this case that do require consideration by parties when managing disrepair cases. Firstly, it is important to consider when reviewing expert evidence if they have a sufficient evidential foundation to reach their assertions. This case is clearly trying to prevent partisanship and ensure that sufficient evidence is provided such that the court can draw conclusions as needed and where the expert’s assertions are not supported sufficiently there is clearly an avenue of attack for the other side.

Secondly, as seen frequently in disrepair cases, landlords who are registered providers of social housing will have internal surveyors whose opinion is relied upon. This case does not preclude landlords from doing so but it stresses the importance that experts look at facts in an objective way and form conclusions for themselves in an objective manner.

For more information on disrepair issues, please contact Clive Adams or another member of the Social Housing Team.