ISSUE 53 Expert Witness Journal - Journal - Page 49
The Contrasting Roles of an Expert
Witness and “Hired Gun” Litigators
The world is aflame as it faces ever increasing challenges and a proliferation of simultaneous,
ongoing and potential conflicts without any apparent common foundation.
Not only is there the escalating threat posed to
European security arising from Russia’s invasion of
Ukraine but there is also increasing instability across
the Middle East arising from the war between Israel,
Hamas & Hezbollah further heightened by Houthi
rebel attacks on commercial shipping navigating the
Red Sea. Added to this are growing regional tensions
across Southeast Asia including raised tensions between China and Taiwan. Then one should not ignore
simmering troubles and civil unrest in Afghanistan,
the Balkans, Ecuador, Egypt, Haiti, Iran, Libya,
Myanmar, Pakistan, Syria and across Africa as well as
renewed hostilities between Armenia & Azerbaijan
and between Venezuela & Guyana.
Duty and legal obligation of an expert
The overriding duty of all appointed experts is to
assist the tribunal or the court by providing opinions
on the specific issues in question and which are within
their area of expertise.
Some instructing lawyers are inclined to seek out
experts who are likely to support their client’s case.
An expert should never consider performing the role
of hired gun tasked with advocating the case of the litigating party who has not only appointed them but
also agreed to pay for their services.
The legal obligation of an expert is to act independently of their instructing lawyers; always observing
the key principles of impartiality, objectivity and
integrity.
Further instability is likely to be generated during
2024 by growing uncertainties arising from the outcome of presidential and parliamentary elections
across the globe. Including the United States, India,
the United Kingdom and the European Union, it is
estimated that over 1.5 billion people will be expected
to vote in national elections. 1
Conflict of interest
From the outset, this requires the need for the expert
to be informed of the identities of all parties to enable
a conflict of interest check to be carried out. A conflict
occurs in circumstances where there may be a perception that any advice given might be biased. Should
any conflict occur after accepting instructions an expert is required to immediately notify all concerned
and in appropriate circumstances withdraw.
Earlier in 2023 the financial world had to come to
terms with the collapse of three US banks and Credit Suisse, a major European bank. To this one should add the
challenges posed by cyber, climate change and increasing
debt defaults across Africa, China, South America &
Southeast Asia and the stark probability of yet another
global banking and economic crisis during 2024.
The Ikarian Reefer: [1993] 2 Lloyd’s Reports 68
Back in April 1985 at around 23h00 the Ikarain
Reefer, a cargo vessel travelling from Kiel to Abidjan,
ran aground off the coast of Sierra Leone. Fire then
broke out in the engine room, the crew abandoned
ship and the vessel sank. The ship owner claimed a
total loss under the marine policy whilst the insurer
alleged that following the owner’s instructions the
vessel had been deliberately set on fire.
The accumulation of so called black swan and grey
elephant events are already generating increasing levels of stress on the international insurance market and
the key financial sectors of the global economy. Faced
with these ever escalating geo-political and economic
challenges, the number and cumulative value of insurance claims arising from political risk and trade
credit insurance policies are and will continue to grow
exponentially.
The dispute came before Justice Cresswell in the
Queen’s Bench Division of the English Courts. His
judgement in favour of the owner was appealed and
Dispute resolution
The ability and willingness of all parties to reach mutual settlement of disputes are coming under increasing strain. Some parties turn to mediation whilst
others prefer hearings before international arbitration
tribunals or in a few instances the courts. All three usually seek the services of independent expert witnesses.
As either an insured or as an insurer facing the
prospect of becoming embroiled in a formal commercial claims dispute, what can you realistically expect from an expert witness when a tribunal or a court
seeks expert evidence? Hopefully this is not an issue
that you will encounter frequently but when you do,
it is important to appreciate what any appointed
expert is legally required and expected to do.
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