EWJ Dec 2023 - Journal - Page 86
The Judge's words keep going round in my head - "I
find the evidence of the expert compelling." Those
words might have been easier to swallow if the expert
had actually produced a reliable and representative
report.
assessment. Acoustics experts, aided and abetted by
the IOA, have got too big for their boots - let's put a
stop to it. This is only achievable if the IOA stops indulging its lax expert members and the Courts stop
meekly surrendering to them.
This leads us on to the thorny issue of the Court's
over-reliance on the evidence of expert witnesses. Dick
Bowdler touched upon this in his excellent EW article
dated 28th January 2019 - "the roll of experts is ancillary in a nuisance case and they should not get too
big for their boots - it is the Court that decides what
is a nuisance." The Law Commission phrases it thus "the current judicial approach to the admissibility of
expert evidence in England and Wales is one of laissezfaire. Too much expert opinion evidence is admitted
without adequate scrutiny because no clear test is
being applied to determine whether the evidence is
sufficiently reliable to be admitted" (LC325). Irish
Supreme Court Judge Peter Charleton recently stated
that "experts are not to be afforded a celebrity status
but are to be assessed from a distance and no Court
should surrender to any expert."
This is an experience personal to me but one that is of
public interest and therefore should be in the public
domain.
Footnote:
There is an ironical conclusion to this story. From the
outset Northumberland County Council denied a
noise nuisance was being created or indeed that noise
was a significant enough issue at all. They expended
a great deal of time, energy and expense defending
their position at Court, including engaging a top barrister and riding roughshod over agreed protocols.
Yet, within a few weeks after the Court hearing they
had replaced all six bins with new lockable noise inhibiting versions and had constructed a very costly
2.5 metre high acoustic screening enclosure to accommodate them. Was this action a belated acknowledgement by NCC that a noise nuisance did exist after
all? - probably, but they couldn't risk having a Section
82 Order imposed due to potential challenges against
other bottle banks in similarly unsuitable locations, all
down to their failure to implement doorstep collections. What a shame that, due to their intransigence,
it came to Court - I could have been spared the misfortune of having to cross paths with the Institute of
Acoustics and the judicial system and witnessing first
hand the shortcomings
of them both.
Unfortunately, the Judge in my Section 82 application
appears not to have given the expert's report adequate
scrutiny and ultimately surrendered to him - not only
that, but to an expert whose evidence was not sufficiently reliable to have been admitted in the first place.
This leads us on to the role of the IOA's position vis a
vis the culpability of their expert witnesses and their
seemingly determined policy of absolving them from
any form of criticism. Their extenuations in this case
are laid bare above and are unbefitting of a professional body – all they are achieving is the diminution
of their standing as a professional institution. While
the reports of their experts, as in this case, remain unchallengeable there can be no redress for the wrongs
that may have followed. Some of these wrongs may
have serious consequences – e.g. the granting/refusal
of planning permissions.
ISSN 2397-2769
THE EXPERT WITNESS
THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES
The IOA needs to take responsibility when its experts,
however senior, fail to make the grade. Their complaints procedure will only consider if an expert has
breached their Code of Conduct. Of course, it is perfectly feasible that an expert member can produce an
inaccurate/unreliable report without it necessarily involving a breach of the Code of Conduct – e.g. genuine errors or misinterpretations as opposed to an
absence of diligence or professionalism. So, an expert
can produce a flawless report but in doing so behaved
unprofessionally which would be a breach of the Code
of Conduct. Conversely, an expert can produce a
flawed report without necessarily being in breach.
The IOA needs to acknowledge this and consider investigating, and delivering verdicts on, genuine complaints against the work of an expert member as
opposed to the complainant having to establish that a
breach of the Code of Conduct has occurred.
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It's about time the people suffering unacceptable noise
levels 24/7 were listened to, not an acoustics expert pitching up for one and a half hours and claiming to have carried out an adequate BS4142
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DECEMBER 2023