The Lawyer reported last week that senior High Court judge Mr Justice Jacob had made a series of factual inaccuracies and incorrect conclusions during his condemnation last year of expert witness Michael Wilkey. Judge Jacob had found that Wilkey had been “biased and irrational” and had made several blunders during well-known copyright case Gareth Pearce v Ove Arup Partnership & ors, in which world-renowned architect Rem Koolhaas was accused of plagiarising the claimant's work. However, an Architects Registration Board (ARB) tribunal, to which Wilkey was referred by Jacob, found that the judge's findings were entirely unjustified.
Joanna Hughes, professional support lawyer, Allen & Overy
“The decision is unlikely to halt the tidal wave of cases criticising experts who do not comply with the Civil Procedure Rules. The criticisms of Wilkey were followed by criticisms of other experts by Mr Justice Rimer, Mr Justice McKinnon and the Appeal Court. And at the last Expert Witness Institute conference, Judge Jacob mooted the idea of extracting an undertaking from an errant expert that he will not accept instructions again without providing a copy of the judgment criticising him.”
Joanna Hughes is the author of 'Expert Evidence Under the CPR: a Compendium of Cases'
Mark Solon, co-founding director, Bond Solon
“The judge thought the expert witness had not complied with the requirements of the rules, while ARB thought he had. However, the judge heard the full cross-examination and read all the papers and the expert's report, but it is not certain what the professional body considered. Also, Woolf's Access to states that expert witnesses need to be trained. When they go into the role blind and do not know how to construct a proper court report, and do not understand that their duty is to the court as well as to their instructing solicitor, problems like those that arose in this case do occur.”
Melanie Carter, litigation associate, Mayer Brown Rowe & Maw
“The ARB decision was a great vindication for Michael Wilkey and I imagine that it is a relief to expert witnesses, who have increasingly been feeling the heat of judicial criticism. The ARB roundly rejected every one of Judge Jacob's criticisms and went further, coming to the unanimous conclusion that there was nothing there to found any charges against him. Mr Wilkey is considering how he might claim costs/compensation for the damage he has suffered.”
Melanie Carter acted for Michael Wilkey in the disciplinary tribunal