ISSUE 54 EWJ web - Journal - Page 83
Expert Evidence Lessons Learnt From 2023 - Part 2
In the concluding instalment of our reflection on the topic of judicial comment relevant to
expert evidence in 2023, Emma Hague and Marc Harries of the Clyde & Co Expert Subject
Matter Group highlight six further decisions considered of interest to both experts and
practitioners.
Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2361
(Pat) (25 September 2023)
The issue – Was the expert’s evidence within the scope
of their expertise.
“The starting point in both CPR Pt 35 and the accompanying Practice Direction is therefore that the expert witness must
give evidence on matters which fall “within their expertise”.”
The Judge found that one of the Claimant’s witnesses
was giving evidence which “fell well outside the scope
of her expertise.” This was apparent from cross-examination and continued throughout her oral evidence. She had sought to understand and educate
herself on an issue, but it was not within her field of expertise, and she should not have been giving evidence
on those points.
Wambura & Ors v Barrick TZ Ltd & Anor [2023]
EWHC 2582 (KB) (23 October 2023)
The issue – Should the court allow expert opinion
evidence.
“I do not believe the way to assist the court is to permit expert
evidence to try to complete the evidential matrix upon which
the trial judge will make their decisions, when the nature of
that expert evidence would be subjective opinion.”
The Claimants applied for permission to bring evidence from a security expert. They proposed an expert "specifically experienced in issues of the use of
firearms and the use of force". They noted that the defendants had denied "unreasonable and excessive
force was used by the police in the relevant incidents"
and their denial that "the Defendants were aware of a
likelihood that the police would use unreasonable and
excessive force against trespassers". The Claimants expressed a belief that the court would benefit from expert evidence on those contested issues and indicated
that they had identified an appropriate expert.
The Court considered the Kennedy test and held that
such evidence would not assist the Court. The Judge
accepted the defendants’ submissions “that this analysis is precisely the task that Trial Judges have undertaken without apparent difficulty, or the assistance of
expert evidence, in the authorities placed before me.”
The international standards governing use of force
were not so technical that the trial judge would need
expert evidence to interpret them. As this strand of
the Kennedy criteria was not satisfied the application
for permission failed.
Nash v Volskwagen Financial Services (UK) Ltd [2023]
EWHC 2326 (KB) (21 September 2023)
The issue – The expert’s use of language.
“In my judgment, it was a change in the evidence about a
matter at the heart of expert evidence, namely the question of
probability.”
The expert changed his opinion from asserting that a
vehicle fire ‘must’ have resulted from a defect in that
vehicle to it being ‘more than probable’. He did not
change his written report to reflect his significant qualification to the degree of probability that the cause of
the fire was from a defect in the vehicle.
The Judge did not agree with the submission that it
“was simply a use of language.” It was noted that the
Trial Recorder had significant concerns about the expert which affected the extent to which the Court
could rely on him, particularly his retreat in his
evidence and his failure to qualify his written report.
Crypto Open Patent Alliance v Wright [2023] EWHC
2408 (Ch) (03 October 2023)
The issue – Expert evidence as hearsay.
“The hearsay evidence would therefore be wholly duplicative.”
The Claimant served a CEA Notice in relation to
expert reports served in previous proceedings
involving the Defendant. The Defendant applied to