'When is an expert not an expert?' While this may conjure all manner of light-hearted responses at the expense of the expert community (my favourite is, 'when X is the unknown quantity and fispurtfl is a drip under pressure'), the correct answer is 'when they are not independent', writes Kim Franklin. One of the fundamental requirements of expert evidence, emphasised by the Civil Procedure Rules (CPR), is that the expert owes a primary duty to the court, irrespective of the interests of their instructing party. The CPR reforms targeted excessive, partisan expert evidence.
Experts were suspected of being prepared to stride into the court room, saloon doors swinging, dust swirling, Doc Hollidaystyle, as a 'hired gun' to fight the party's cause.
Various proposals were canvassed to chase these misplaced mercenaries out of town. The ultimate solution, the Single Joint Expert (SJE), a latter-day Lone Ranger, did not solve the problem entirely.
The courts were reluctant to saddle the unsuccessful party with an adverse finding without the opportunity of testing it in court. The net result was that the parties would need their own experts in order to challenge the SJE's findings.
Far from reducing the amount of expert evidence, the SJE potentially increased the number of experts involved.
For this reason, while it is used to deal with straightforward money issues, the SJE is seldom involved for contentious liability issues.
The limitations of the SJE have caused the parties to fall back on their own experts.
With the CPR ringing in their ears, experts appointed by either party are required to declare their independence and acknowledge their overriding duty to the court. This put tobacco company Gallaher in difficulty when it wanted to rely on the evidence of a Mr Goel. He was one of only a handful of senior executives in the international cigarette industry who had experience of building business in developing markets and preventing smuggling. The problem was that he worked for them.
In Gallaher International v Tlais Enterprises (Judgment 08.03.07), cigarette distributor Tlais objected to Goel's evidence because he was employed by Gallaher. He was not, they said, 'a suitable person' to be an independent expert in their dispute with Gallaher over a distribution agreement for particular brands of cigarettes in the Middle East.
The court concluded that while it is always desirable for an expert to have no actual or apparent interest in the outcome of the proceedings, the existence of such an interest did not automatically make their evidence inadmissible. It was a question of fact and degree.
The court held that Goel should be permitted to give evidence, particularly as Gallaher had declared his employment and put him on secondment for the duration of his expert involvement. As Goel's expertise was so scarce, it would be unfair to require Gallaher to find a replacement.
Ultimately Goel would be subject to cross-examination as to his independence. Hired gun or not, he would not be spared the shoot-out at the OK Corral.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com