Litigation conference brings to the fore blunders by expert witnesses

The array of problems caused by expert witnesses during litigation were highlighted at a landmark conference last week

Allen & Overy litigator Joanna Hughes, author of a recent book on expert witnesses, provided a catalogue of examples of blunders by what she describes as “nightmare experts”.

Hughes said the areas in which experts cause the “most nightmares” during litigation relate to their lack of awareness of their overriding duty to the courts, causing delay and problems with their fees.

In Pearce v Ove Arup and Ors last November, the judge found the expert evidence was so biased and irrational that the expert had failed in his duty to the court.

In copyright case SPE International in May this year, Hughes refers to the judge's conclusion that the expert had “no relevant experience”, no notes of instructions from clients and sought information for his report but failed to keep copies of what he was sent.

Most seriously, he displayed a complete lack of independence, as it emerged that he was a management consultant for SPE. Mr Justice Rimer, the judge in the case, said: “His evidence betrayed that he really regarded his primary role as being to present and defend SPE's case.” Also, the expert had not even heard of rules relating to experts' overriding duty to the court.

Two weeks ago, a party unsuccessfully appealed a decision by Mr Justice Laddie in the intellectual property case Cairnstones that the independent witness took the wrong approach and breached his duties.

In Baron v Lovell, an expert's report was rejected because it was served seven months late. Hughes said judges' most common cause for complaint is delay in the servicing of experts' reports.

Clive Freedman QC, a seasoned commercial barrister at Littleton Chambers, said: “There's always a danger that one-off experts, typically giving evidence in a commercial action, don't manage to fulfil those duties, and exceptionally are even not aware of the duties.”