THE INTERACTION BETWEEN LAWYER AND EXPERT: CASES ON EXPERTS THIS WEEK II

We have already looked at the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21 in relation to costs budgeting. Here I want to isolate one aspect of that budgeting exercise – in relation to experts.  This aspect of the interaction between lawyers and experts is of importance both generally and also in relation to the likely approach of the court during the costs budgeting process.

“… it should not need emphasis that the expert’s report should be the product of the expert, expressing his or her own, independent opinion, and not the reflection of heavy input or edited by the lawyers”

THE JUDGE’S COMMENT ON THE PHASE FOR EXPERTS IN THE BUDGETS

“Although Mr Maclean QC, appearing for the Claimant, was critical of the amount of solicitors’ time attributed to the expert’s report in the Gascoigne Halman costs budget, it seems to me that much the same criticism could be directed at the Claimant’s costs budget. There may be a good explanation, but it should not need emphasis that the expert’s report should be the product of the expert, expressing his or her own, independent opinion, and not the reflection of heavy input or edited by the lawyers. Some discussion with the lawyers is of course reasonable and the expert can be expected to assist the legal team in a critical review of the evidence”

There was no indication that this had, or was likely to, occur in the case in question. However that passage serves as a useful reminder of the important interaction between lawyer and expert where the expert must remain independent.

IF THAT SEEMS OBVIOUS…

“By the end of his cross-examination, he [the claimants’ expert] was accepting every criticism or error being put to him by Mr Lofthouse QC; on occasions, he even conceded points before they had even been suggested.”

“the widespread and important elements of the claim, which he admitted he could no longer support, drove him to say in cross-examination that he was not happy with any of his reports, not even with the one provided during the last week of the trial, just before he gave his oral evidence. If an expert disowns his own reports in this way, the court cannot sensibly have any regard to them.”

“he made repeated assertions in his reports that appeared to be expressions of his own views. They were certainly not attributed to anybody else. But in cross-examination it was revealed that these assertions came straight from discussions he had had with OSR witnesses, Mr Mulcair and Mr O’Rourke. Even more alarmingly, some of these assertions, in particular those in Mr Lester’s report provided at the start of the last week of the trial, related to matters on which both men had already been cross-examined and (in many instances) on which they had had no credible answer to the points being put to them. In this way, Mr Lester was used to try and plug the gaps in OSR’s evidence which had been exposed by Mr Lofthouse QC’s cross-examination of OSR’s witnesses of fact, without any input from Mr Lester himself. That is the complete opposite of what a responsible, independent expert is obliged to do.”

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