Simon Morrow is a solicitor in the litigation department at Vaudreys.
JUSTICE Cresswell's judgment in Ikarian Reefer (1993) provided a useful set of guidelines on the duties and responsibilities of expert witnesses in civil litigation. These included:
presenting independent evidence uninfluenced as to form and content by the exigencies of litigation;
providing an objective, unbiased opinion in relation to matters within his expertise;
never assuming the role of advocate;
stating clearly the facts or assumptions on which his opinion is based;
considering any material facts which detract from his concluded opinion;
confirming whenever a particular question falls outside his area of expertise;
specifying that his opinion is provisional if insufficient data is available to him;
ensuring that any documents are supplied to the other side;
disclosing any changes in his view on a material matter after exchange of reports.
However, the recent Vernon v Bosley appeal indicates that expert witnesses do not always do what they are supposed to do.
Two medical experts instructed on behalf of Vernon provided contrasting evidence in relation to his personal injury claim and in support of his application for the custody of his children.
When considering the disparity between the doctors' reports, Lord Justice Thorpe commented on the readiness of both doctors "to present the plaintiff's condition in the light that seemed most helpful to the immediate cause, ignoring their equal or greater duty to the court and disregarding the very considerable inconsistencies that inevitably developed".
Such criticism diminishes the prospects of resisting Lord Woolf's push for a system with a single court-appointed expert. The profession cannot reasonably object to the proposed new system.
In my practice area, a "neutral" consultant engineer could be appointed in work-related personal injury cases or a single medical expert used where the injuries involved are straightforward.
It is, however, vital that a judge is unfettered by the expert's opinion and that he is under no obligation to accept that expert's opinion.