Expert evidence — Duties and responsibilities of expert witnesses in civil cases
The plaintiff
was the owner of the Ikarian Reefer, 87.5% of which was insured with the
defendant against the perils of the sea, fire and barratry. On April 12 1985
the vessel ran aground and was abandoned following a fire. The defendant
resisted the plaintiff’s claim on the insurance policy on the ground that the
vessel was deliberately run aground and set fire by, or with the connivance of,
those beneficially interested in the plaintiff. In the course of considering
the evidence the trial judge considered the duties and responsibilities of
expert witnesses in a civil case.
and responsibilities of expert witnesses in civil cases.
The following
cases are referred to in this report.
Derby
& Co Ltd v Weldon (No 9) The Times,
November 9 1990, CA
Polivitte
Ltd v Commercial Union Assurance Co plc
[1987] 1 Lloyd’s Rep 379
J, Re [1990] FCR 193
Whitehouse v Jordan [1981] 1 WLR 246; [1981] 1 All ER 267, HL
Anthony Clarke
QC and Nigel Jacobs (instructed by Clifford Chance) appeared for the plaintiff;
Stephen Tomlinson QC and Stephen Kenny (instructed by Ince & Co) represented
the defendant.
In the course
of his judgment, CRESSWELL J said: The duties and responsibilities of
expert witnesses in civil cases include the following:
1. Expert
evidence presented to the court should be, and should be seen to be, the
independent product of the expert uninfluenced as to form or content by the
exigencies of litigation: see Whitehouse v Jordan [1981] 1 WLR
246 at p256, per Lord Wilberforce.
2. An expert
witness should provide independent assistance to the court by way of objective unbiased
opinion in relation to matters within his expertise: see Polivitte Ltd v
Commercial Union Assurance Co plc [1987] 1 Lloyd’s Rep 379 at p386; Garland
J and Re J [1990] FCR 193 per Cazalet J. An expert witness in
the High Court should never assume the role of an advocate.
3. An expert
witness should state the facts or assumptions upon which his opinion is based.
He should not omit to consider material facts which could detract from his
concluded opinion: see Re J supra.
4. An expert
witness should make it clear when a particular question or issue falls outside
his expertise.
5. If an
expert’s opinion is not properly researched because he considers that
insufficient data is available, then this must be stated with an indication
that the opinion is no more than a provisional one: see Re J supra. In
cases where an expert witness, who has prepared a report, could not assert that
the report contained the truth, the whole truth and nothing but the truth
without some qualification, that qualification should be stated in the report:
see Derby & Co Ltd v Weldon (No 9) The Times, November 9
1990, per Staughton LJ.
6. If, after
exchange of reports, an expert witness changes his view on a material matter
having read the other side’s expert’s report or for any other reason, such
change of view should be communicated (through legal representatives) to the
other side without delay and when appropriate to the court.
7. Where
expert evidence refers to photographs, plans, calculations, analyses,
measurements, survey reports or other similar documents, these must be provided
to the opposite party at the same time as the exchange of reports: see Guide
to Commercial Court Practice 15.5.
