Judge attacks 'unnecessary' over-use of expert witnesses

A top judge has lashed out at the increasing practice of pushing the cost of court action by calling experts in to give unnecessary evidence.

The attack came from Mr Justice Dyson, head of the High Court's Technology and Construction Court, which deals with contract disputes – primarily from the building and construction industry.

At the end of a judgment in a dispute over a building which collapsed because of alleged design defects, the judge rounded on the growing practice of bringing long-winded experts to court when they were not needed.

“This case provides a good illustration of a problem which is endemic in modern civil litigation,” he said.

“It seems that litigation without expert witnesses is becoming something of a rarity. Of course I accept that expert witnesses fulfil a vital role in many cases.

“I strongly suspect, however, that in many cases insufficient thought is given by the parties, and in particular their legal representatives, first to the question whether an expert is really necessary at all and secondly to what issues the evidence of the expert should be directed.”

He said that in the case he had just dealt with, an expert engineer had been called, but that their evidence had gone beyond matters they should have been concerned with.

He considered that the point could have been dealt with by the experts in question much more concisely.

Instead though, he said they produced elaborate reports, one of which totalled 44 pages dealing with issues which were inappropriate to the case and which no doubt added considerably to the cost of the action.

“In view of the imminent implementation of the Woolf reforms, it is now opportune for everyone who is concerned in civil justice to take a hard look at the whole question of expert management,” he said.

“It seems to me that all have a role to play in this: case management judges, legal representatives and the experts themselves.

“Experts reports that are directed to issues with which they should not be concerned merely add to the expense of litigation.

“Everything possible should be done to discourage this. In appropriate cases, this will include making special orders for costs.”