ISSUE 54 EWJ web - Journal - Page 28
trial by allowing the impugned witness an opportunity to explain or clarify their evidence. The Supreme
Court clarified that the rule should not be applied
rigidly however, and that there are exceptions, including:
concluding that [the expert] would not have explained his reasoning more clearly on cross-examination”. The Supreme Court therefore held that, in the
absence of a proper challenge on cross-examination,
it was unfair for TUI to submit detailed criticisms of
the expert report in its closing submissions and for the
trial judge to accept those submissions. The Claimant
was held not to have had a fair trial as a result.
• where the challenge is directed to a matter that is
collateral or insignificant and fairness to the witness
does not require an opportunity to answer or explain.
At the heart of the Supreme Court’s decision was the
commitment to a fair trial and efficiency. If challenges
to otherwise uncontroverted expert reports were allowed as part of closing submissions, that “would undermine the CPR’s arrangement for agreeing expert
reports in advance of trial and narrowing down the
areas of dispute.” Expert witnesses might also act defensively and produce overly complex reports which
would add to the cost and length of legal proceedings.
Key takeaways
• where the evidence of fact is manifestly incredible
and an opportunity to explain on cross-examination
would make no difference.
• where there is a bold assertion of opinion in an
expert's report without any reasoning to support it (although this does not include reasoning which appears
inadequate and is open to criticism for that reason).
• where there is an obvious mistake on the face of an
expert report.
• where the witnesses' evidence of the facts is contrary
to the basis on which the expert expressed their view
in the expert report.
The Supreme Court’s decision makes clear that, subject to limited exceptions, a party who wants to convince the court not to accept their opponent’s evidence
on a material point should generally challenge that evidence through cross-examination, not simply in closing submissions.
• Where an expert has been given a sufficient
opportunity to respond to criticism of, or otherwise
clarify, their report – for example by answering
questions put to the expert under CPR 35.6.
Original article can be found Norton Rose Fulbright’s website here: https://www.nortonrosefulbright
.com/en/inside-disputes/blog/202403-supreme-court-holdsthat-courts-must-generally-accept-uncontroverted-evidence?utm_source=mondaq&utm_medium=syndication&
utm_term=litigation-mediation-arbitration&utm_content=articleoriginal&utm_campaign=article
The Supreme Court found that none of the
exceptions to the rule applied in the current case.
While the evidence of the Claimant’s expert report
was deficient insofar as it “left many questions unanswered…and is at a high level of generality” the Court
held that “it is not irrational and there is no basis for
Mr Konstantinos Papagiannopoulos
Cardiothoracic Surgeon
Mr Samuel George
- MBChB, MMEd(Thorax), MD(CTh)
Consultant Plastic, Hand, Reconstructive
and Peripheral Nerve Surgeon
Mr Papagiannopoulos undertakes medico-legal work. He has attended lectures
and received the Cardiff University Bond Solon expert witness certificate.
MBChB MSc FRCS(Plast.) Dip Hand Surg (Br.) MFSTEd
His areas of interest are:
•
Minimally invasive treatment of lung cancer including chest wall (rib case).
•
Management of airway disease benign and malignant (wind pipe) with
Mr Samuel George is a Consultant Plastic, Hand, and Reconstructive Surgeon at the
Queen Elizabeth Hospital Birmingham.
local resection, PDT and stents.
•
•
He fronts the trauma service in the Birmingham Hand Centre, whereby he manages
and reconstructs complex upper limb trauma, bone, soft tissue, and nerve injuries of
the upper limb including microsurgical free flap reconstruction and nerve injuries to
upper and lower limbs. He manages a lot of iatrogenic nerve injuries and performs
elective plastic, hand, and nerve surgery regularly.
Treatment of emphysema; surgical and endoscopic using special valves.
Treatment of chest wall deformities; pectus repairs without the use of
metal bars both minimally invasive and open (Nuss or Ravitch).
•
VATS (key hole) surgery for malignant and benign diseases of chest with
an established program in Leeds since 2005.
•
Mr George also specialises in the removal of skin lesions, namely moles, cysts,
lipomas and keloids, as well as the reconstruction of earlobes.
Complex operations for lung cancer involving spine offering team
approach with a senior Neurosurgeon.
•
Minimally invasive treatment for Thoracic Outlet syndrome (key hole
He is currently the director of the world-renowned Hand and Nerve fellowship
programme in the Queen Elizabeth Hospital in Birmingham and the lead trainer
for the Nationally appointed Advanced Training Post in hand surgery in the West
Midlands. He has 30 publications and has written 2 books in the field of plastic,
hand, and peripheral nerve surgery.
surgery).
•
Minimally invasive treatment (key hole) of atrial fibrillation.
•
Management of mesothelioma.
•
Offers second opinion for complex and failed procedures with National
and International referrals
Mr George has given over 50 international and national
presentations, whilst also being on the editorial board for the
Journal of Orthoplastic Surgery. He has a passion for
teaching, and teaches on MSc programmes at the University
of Edinburgh and the University of Birmingham, where he
lectures in the Medical School and teaches various courses
around the UK.
Details of expert witness practice:
•
Claimant to defendant to joint expert ratio: 75/20/5
•
Medical negligence cases
•
Does not undertake medico-legal work under the age of 18
•
Workload: approximately 120-150 cases per annum
•
Experience in Coroner’s/Crown Court
Contact
Tel: 07403 053 945
Email: samgeorge@dr.com
Queen Elizabeth Hospital Birmingham,
Mindelsohn Way, Birmingham, B15 2GW
Contact: Mrs Martha Kotti (Private secretary)
Tel: 0113 2698859
- Email: mkotti@yahoo.com
Ms Linda Caton (NHS secretary)
Tel: 0113 2068776 - Email: linda.caton@nhs.net
Thorax Medical & Legal services Ltd, 1 Stoneleigh Close, Leeds, LS17 8FH
EXPERT WITNESS JOURNAL
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APRIL 2024