NEWS / Affiliate / Procedural failings can disqualify Expert Evidence

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06 APR 2019

PROCEDURAL FAILINGS CAN DISQUALIFY EXPERT EVIDENCE

James Burgoyne discusses the pitfalls of not following instructions

James Burgoyne of Brunel Professions discusses a multi-million claim in which expert witness evidence was potentially inadmissible due to the expert’s failure to follow the Court’s instructions

Many professional indemnity insurance claims are reliant on the input of expert witnesses, and the discussions between claimant and defence experts are often crucial to the decision.

However a recent decision highlighted the Court’s insistence on proper procedure, and that it can and will disallow expert evidence where there have breaches of that procedure. This can have devastating effects on a case (for either side) and therefore was an important warning to all concerned – those professionals engaged in expert work, or the professionals and their legal teams relying on an expert’s input.

The case was Mayr & Others v CMS Cameron Mckenna Nabarro Olswang (2018), which contained a number of sensational characteristics such as alleged losses of £65m, alleged misconduct on the part of Mr Mayr’s own solicitors, and a background amongst others of the Turkish Pharmaceutical industry. Understandably, expert evidence was required to consider the same.

The Court had directed the experts to exchange initial reports, and then to meet to discuss their views, with the object of producing a memorandum highlighting their common ground, and areas in which they continued to disagree. This represented a usual approach to expert evidence, with the expert’s joint memorandum representing their guidance to the Court.

However in this case, whilst the initial exchange of reports took place and the experts met to discuss them, the claimant’s expert failed to finalise his views. Meanwhile time was ticking away before the trial date, and the defence expert was unable to complete their own report. The defendants complained of the conduct of the claimant’s expert in a pre-trial hearing in December 2018, with the trial set for January 2019.

The judge was entirely sympathetic to their complaint and instructed that the claimant’s expert evidence in its present state was inadmissible at trial, stating “The burden will be on them to come forward, as I have said, with a proper and acceptable procedure which will include a proper joint meeting and will meet the criteria of relief from sanctions if they wish to pursue this evidence....If they have simply left it too late to do so in an acceptable way, then that is something for which they must take the consequences.”

When the claimant’s legal team argued that this was effectively striking out part of their claim, Mr Justice Males corrected them that he was not finally striking out the claim but rather putting “...the ball firmly in the claimants’ court to come back to court with proposals which will put the situation right and will do so without causing serious prejudice to the trial.” The expert was in fact required to produce a supplemental report by 21 December 2018 – albeit that this was some 72 hours after the hearing on the 18 December 2018.

The claimant’s legal team also argued that the conduct of the expert was independent of either them or the claimant, but the judge considered that control of the expert was sufficiently the claimant and solicitors’ responsibility that this did not change the position. The judge told them that if they had not told the expert that his conduct was unacceptable then “this was itself a serious failing”.

Professionals performing expert witness work often have to balance the demands of a particular case against the rest of their workload, and this can create pressure on them. Nevertheless the case was a warning that there is little leniency in meeting the required deadlines and following the case management instructions of the Court. It also warns that if delays on the part of the expert are strategic manoeuvring rather than simply pressure of business, what may be tactical moves on the part of the claimant’s team can turn into rather spectacular own goals.

Otherwise, the case was a warning to professionals and claims handlers alike of the need to manage the expert’s work and ensure that they are on top of what is required from them.

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James  Burgoyne

James Burgoyne

Director - Claims & Technical

Jim joined Brunel in 2009 and heads up the Technical and Claims Department. As well as representing Brunel on the ACE PII panel, he writes occasional pieces for us on insurance, risk and associated topics.

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