On overnice distinctions in expert witness qualifications

There is some baggage and a creepy-crawly or two when it comes to bringing in an expert witness to your dispute. The term “hired gun” lingers in the memory of quite a few folks, and that includes judges, arbitrators and lawyers. It was a plague and still features on the worry list.

It’s all very well having a highly qualified, influential opinion witness, with all those letters after their name, only to find that this expert is batting for their side. That’s not the idea at all! A partisan expert (the “skilled witness” in Scotland) will have their commentary thrown out. The reason is that the first and fundamental duty is not to the party who made the appointment; the first duty is to the tribunal. 

Indeed, the starting point is that “evidence of opinion”, such as expert opinion, is inadmissible, save and except for those occurrences when the tribunal gives permission to field an expert. That permission is given only when the judge, arbitrator or other dispute resolver recognises that they need expert help. Then a direction or order will be made giving permission, usually called “leave”.

In a recent case, leave was given to bring in an expert with highfalutin qualifications. Snag was, the actual expert didn’t have all those medals. It was as though the tribunal’s order said it required a chartered quantity surveyor and then the expert who gave the expert opinion was not chartered. In other words, the expert was a QS, but not a QS member of the RICS. Do you see my example and the fuss it may cause? 

Leave was given to bring in an expert with highfalutin qualifications. Snag was, the actual expert didn’t have all those medals. But this chap, in his own field, was extremely experienced

The actual case called on the court order for a clinical psychologist. The person appointed was an all-singing, all-dancing chartered psychologist. That hiccup was only discovered long after the trial. But counsel, quite properly in my view, came back to the court, being the Court of Appeal, and argued that the expert was outside his competence, outside his qualifications required in the court order, and argued that the judgment could not stand. 

By the way, the expert had provided a chapter-and-verse CV to both parties, but neither had picked up on the court requirement of a clinical psychologist. Nothing was concealed, no blame laid on the expert; he just got on with his opinion evidence. Nevertheless, it was a serious procedural irregularity, said counsel.

The Court of Appeal heard that the expert had worked and “helped” the court beyond the scope of his practice. The original judge had heavily relied on the psychological assessments of the persons in the matter before the judge.

In order to set aside the original judicial decision, it was important to show that the decision was unjust because of this procedural irregularity. There were shortcomings insofar as the CV of the expert was not put before the original judge. Nor was the expert shown the court order. But this chap, in his own field, was extremely experienced both as a practitioner and as an expert witness. 

However, the court is entitled to suitably qualified experts, and it is vital that there is clarity about the expertise possessed by an expert and about the task that the expert is being asked to perform. Hardly does the remark made by Lord Justice Bingham apply in this case, but his flavour of thinking is useful when he said a party “cannot fairly be asked to meet evidence of opinion given by a quack, a charlatan or an enthusiastic amateur”.

Despite the shortcomings, none of the circumstances amounted to a serious procedural or other irregularity. The court remarked that “overnice distinctions” between neighbouring (expert) disciplines are likely to lead to unintended consequences, such as the courts’ policy to limit the number of experts to the minimum. 

The second reason for dismissing the appeal is that objectively there had been no injustice in this case. The original judge’s decisions were based on the evidence as a whole, and other evidence clearly supported the judge’s conclusions. It was not a marginal decision reached by that court. 

There are four key considerations in the matter of expert evidence:

• That the professional skilled evidence will assist the court in its task. It may well be that the tribunal has sufficient expertise such that an expert is not needed. Arbitrators usually are professionally qualified as arbitrators and also have a professional technical qualification. That’s an advantage in arbitration.
• That the expert witness has the necessary knowledge and experience. Find out and tell the court in advance.
• That the expert witness is impartial and understands what that means and shows that quality in his assessment of the evidence.
• Finally, there is a reliable body of knowledge or experience to underpin the expert’s evidence.

As to whether a quantity surveyor is chartered or non-chartered, and as to whether that is an overnice distinction… you might very well think that; I couldn’t possibly comment. 

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple