Related Sector: Expert Witness
Building engineers act as expert witnesses in a wide variety of disputes. Issues that they can be instructed to investigate, provide their opinion and report on, include:
- Personal injury matters, such as slip and fall injuries.
- Building contract disputes.
- Building materials defects.
- Structural/foundation failures and collapse incidents.
- Damage from fire, flood, or explosion.
- Insurance claims.
What are the legal requirements?
There are no legal requirements to becoming an expert witness. The level and type of professional experience required will differ from case to case. Instructing parties are increasingly likely to choose an expert witness based on two factors: their specialist knowledge on a particular subject area; and the number and type of cases they have worked on.
Undertaking formal training also provides vital assurance that the appointed expert is aware of their mandatory duties under Part 35 of the Civil Procedural Rules. Specifically, their overriding duty to assist the court by providing ‘objective, unbiased opinions on matters within their expertise’ which ‘overrides any obligation to the person from whom experts have received instructions or by whom are paid’.
Recent case law
There have been several cases over the last few years where the courts have commented on issues with expert independence. We’ve outlined the key points below but please note that this is not a substitute for undergoing formal expert witness training.
Conflicts of interest can cast doubt on an expert’s ability to remain independent. This was explored in Bux v General Medical Council EWHC 762 where the most common forms of conflict of expert interest were identified as:
a) a financial interest in the litigation outcome;
b) some conflicting duty; or
c) a personal (or other) connection with a party which might influence or bias their evidence.
Other issues relate to conduct.
In the High Court of Ireland case of McKillen v Tynan  IEHC 189 the applicant’s expert witnesses both described their reason for giving evidence as being ‘’for the purposes of supporting’’ the applicant’s claim. Their affidavits also contained the same (near verbatim) concluding paragraphs. The judge reiterated how critically important it is for experts to give independent advice so that they are not perceived to be a ‘hired gun’.
In Palmer v Mantas & Anor  EWHC 90 (QB), an expert’s report wascriticised by the judge for its ‘’judgemental and rather scathing comments’’. The judge expressed concern that the claimant had used language that went beyond ‘’what is appropriate for an expert to employ and suggest[ed] a level of unconscious bias’’.
In Patricia Andrews and others v Kronospan Ltd  EWHC 479 (QB), the claimant was prohibited from relying on their expert’s evidence (worth £250,000) because he obtained the input of his instructing solicitors when drafting the joint expert statement. This was in contravention of the rule that experts must not discuss or disclose the draft of their joint statement (CPR35.12; PD35), as well as their overriding duty to the court. Master Fontaine observed that the expert in question’s approach “strongly suggests he regards himself as an advocate for the claimants rather than as an independent expert whose primary obligation is to the court”.
Contrarily, the first instance case of Tylicki v Gibbons  EWHC 3470 (QB). provides invaluable commentary on the circumstances in which a judge can deem criticism of an expert’s independence to be unfounded. In this case, the claimant’s expert witness was accused of openly showing sympathy to the claimant and created a report that was heavily influenced by his instructing solicitors.
But after a rigorous cross-examination, the judge concluded that the expert had not breached his overriding duty to the court. His transparency and his adherence to the evidence served him well. Together, they demonstrated his compliance with his overriding duty to the court in a very difficult and tragic case. Judges place great weight on the way in which witnesses give their evidence. They assess the witness in front of them and always look for credibility, integrity, and straightforward helpfulness.
Instructed experts are assumed to have read and understood the terms of their appointment, including their overriding duty to the court. The above cases emphasise the value of regular and up to date expert witness training, to ensure that appointed experts comply with their obligations at all times.
This article was first published on the 05 September 2022.
Author: Meera Shah, Content Manager.
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