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EXPERT WITNESS

LEGAL

Whether it is necessary for adjudicators to be independent as well as impartial is the subject of much debate, writes Sarah McNally. Not surprisingly, such matters tend to lead to raised blood pressure - it's one thing to lose a case because of weaknesses in your arguments but it's quite another to feel that you are not given a fair crack of the whip to start with.

The debate extends to experts too. The case of Liverpool Roman Catholic Archdiocese Trustees Incorporated v Goldberg concerned a tax barrister who, when sued for negligence, reasonably enough sought to rely on the expert evidence of another tax barrister. It turned out that the expert practised from the same chambers and had been a friend for many years. In Field v Leeds City Council one party wished to call a surveyor as an expert, despite him being employed in its office's claims investigation section. These experts were clearly not independent, so could their evidence really be relied upon?

This question was considered in the case of Armchair Passenger Transport v Helical Bar (judgement 28.02.03).

The claimant, whose car was damaged in a collision with the defendant, hired a replacement vehicle from Swift Rent-a-car at a total cost of nearly £8,500.

In defence of the claim, the defendant relied on the report of a Mr McLean who, it transpired, had been chief executive of Swift Rent-a-car before setting up a company producing monthly surveys of the cost of hiring vehicles.

At trial, the judge disallowed McLean's report.

He noted McLean's prior connection with Swift Rent-a-car and was of the view that 'justice cannot fairly be said to be seen to be done' if he were to provide expert evidence. On appeal, the judge derived several principles from the various cases:

? ideally, an expert should have no actual or apparent interest in the proceedings; but - the existence of such an interest does not automatically render evidence inadmissible;

? it was a question of fact and degree and not whether there was actual or potential bias. Instead, the court should consider whether the witness had relevant expertise and whether they were aware of their primary duty to the court;

? the judge should weigh the alternative choices, if the evidence is excluded;

? even if an expert with an interest is not precluded from giving evidence, their involvement may affect the weight attached to the evidence.

The starting position is that an expert should have no actual or apparent interest in the proceedings, and experts should be selected accordingly.

The courts accept, however, that as the world grows ever smaller, it may not be possible to find experts who have no connection with the parties at all, particularly in narrow, specialist fields. Experts who are not wholly independent of the parties, though, should expect to be cross-examined along the lines of: 'Well, you would say that, sir, wouldn't you?'

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