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?

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