EXPERT WITNESSES GOING BEYOND THE BOUNDARIES OF EXPERT EVIDENCE: IT INCREASES COSTS AND IS COUNTER-PRODUCTIVE

In Johnston -v- TAG Farnborough Airport Limited [2015] UKUT 0534 Martin Rodger QC (Deputy President of the Upper Tribunal Land Chamber) had some telling observations about the role of the expert witnesses in that case.

“The willingness of the experts to debate the law and to reach trenchant conclusions on the meaning and effect of the statutory language (invariably supportive of the case of the party instructing them) was surprising.  It had the effect of increasing costs and lengthening the hearing (the expert evidence took four days of hearing time); more importantly, it cast doubt on their objectivity and independence and diminished the weight which I felt I could confidently give to the opinions they expressed on matters within their expertise.  It was therefore unhelpful and counter-productive. “

THE CASE

The claimants were seeking compensation under the Land Compensation Act 1973 on the grounds that developments in the defendant airfield had decreased the value of their property.

THE OBSERVATIONS ABOUT EXPERT EVIDENCE

  1. Expert evidence in the field of airport management and operations was given for the claimants by Mr Peter Forbes FRAeS FCILT, the managing director of Alan Stratford and Associates Ltd, and for TAG by Mr David Titterington MRTPI, the managing director of Airport Planning and Development (APD) Ltd.  Expert evidence in relation to planning matters was given for the claimants by Mr Robert Matthews MRTPI, a director of Vantage Planning Ltd, and for TAG by Mr John Rhodes MRICS, a director of Quod, a consultancy specialising in aviation related planning matters.
  2. All four experts were extremely well qualified in their respective fields and they were able helpfully to reach agreement on many matters of relevance.  The scope of their disagreement largely concerned issues which fell outside their expertise but on which they had nevertheless been asked to comment.
    In particular they commented extensively on the law and on the motivation for business decisions in which they had not been involved, but about which they had seen reports and minutes.  Not all were equally inclined to range widely beyond the legitimate boundaries of expert evidence, with the evidence of Mr Rhodes being least affected. The willingness of the experts to debate the law and to reach trenchant conclusions on the meaning and effect of the statutory language (invariably supportive of the case of the party instructing them) was surprising.  It had the effect of increasing costs and lengthening the hearing (the expert evidence took four days of hearing time); more importantly, it cast doubt on their objectivity and independence and diminished the weight which I felt I could confidently give to the opinions they expressed on matters within their expertise.  It was therefore unhelpful and counter-productive.  I have no doubt that the experts were trying to assist the Tribunal and were responding to the requests of the parties in covering the range of matters on which they commented, but their evidence would have been more useful if they had restricted themselves to issues within the scope of their very considerable expertise.

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