Expert Witness – Case Law Update

Related Sector: Expert Witness

Our content development team are regularly scanning and reporting on relevant judgments and news stories involving expert witnesses that might assist you in your practice. The themes/principles of all relevant cases form part of our comprehensive two-day Civil Law and Procedure courses.

Since the courts reopened in the new year, there have been a handful of cases involving experts, where duty and conduct have been referred to directly in the judgment. We’ve put together a mini case law update, providing a summary of two of the most relevant cases, and the key principles that you should be aware of for your practice.

GKE v Gunning [2023] EWHC 332 (KB)

Case summary

This High Court case concerned an action alleging abuse of trust between a client (the Claimant) and her counsellor/coach (the Defendant).

The Claimant instructed a consultant neuropsychologist (the Expert) to report on the duty of care owed by the Defendant.

Mr Justice Ritchie held that the instruction of the Expert was inappropriate, stating:

“to judge and determine what a trained counsellor would and should have done in the shoes of the Defendant, I would have needed to hear from a well-qualified, experienced and properly trained counsellor or psycho-sexual counsellor —giving expert evidence subject to the duties set out in CPR Part 35. I did not receive such evidence in this trial. Instead, the Claimant called evidence from a neuropsychologist. This fundamental gap in the Claimant’s case has required me to treat the expert evidence on standard of care and breach with the greatest of care.”

Specifics

• In cross-examination, the Expert admitted that he was not a trained counsellor, or a member of the British Association of Counsellors and Psychotherapists.
• The Expert accepted in evidence, that whilst he had 20 years of therapeutic experience working with other therapists, he was not an expert on counsellors, the code of conduct of counsellors or the regulation of counsellors.
• The Expert admitted that he was aware of experts in the above fields. However, he did not advise the Claimant to take advice from an expert in the Defendant’s field of practice.
• The Expert did not set out the nature of the duty of care owed by the Defendant to the Claimant or the standard of care of a counsellor in each circumstance.

Result

In light of the above, Mr Justice Ritchie approached the Expert’s evidence with ‘’a good measure of care’’ because the Expert was not ‘’the correct expert to advise on the appropriate methods of therapy or standard of care for a counsellor.’’ He expressed criticism of the Expert, stating that ‘’he should have thought far more carefully before he agreed to provide evidence of breach of duty and standard of care as a neuropsychologist, when the subject of the allegations was a counsellor with a wholly different set of qualifications and experience’’.

Although the judge did not hold the Expert personally liable for his inadequate evidence in this case, experts should be mindful of the judgment in Jones v Kaney, which stated that expert witnesses are not immune from suit. In addition, they should be aware of the public nature of most judgments.

Expert witnesses owe a primary duty to the court and should, therefore, always consider whether they have the requisite qualifications and experience to assist the court before accepting instructions.

Czernuszka v King [2023] EWHC 380 (KB)

Case summary

A 28-year-old mother of two (the Claimant) suffered serious injuries when playing a game of rugby, which left her paraplegic and wheelchair-dependent for the rest of her life. The Claimant brought an action against the player who tackled her (the Defendant), arguing that the tackle was outside the rules of the game.

Each party instructed their own independent expert, whose reports reached different conclusions. But by the end of the cross-examination, the Defendant’s expert was largely in support of the Claimant’s case.

“It was, however, in relation to the mechanics of the tackle that [the Defendant’s expert] conceded the whole of the Claimant’s case and the views put forward by Mr Morrison in a way which represented a complete volte face from the position he had taken in his report.”

Specifics

• The judge heard evidence from two experienced rugby referees.
• The Claimant’s expert gave evidence that the tackle was against the rules.
• This was initially denied by the Defendant’s expert, whose report stated ‘’rugby union is a contact sport. It is permitted in rugby to tackle your opponent, providing the player has the ball or is attempting to control the ball and, using your hands, to take them to ground. In my opinion the video of the match is clear. Natasha King was not off-side, nor did she commit any act of foul or dangerous play in accordance with the Laws of the Game. The referee was well placed to see the incident and he did not penalise Natasha King. I was assisted with the video and audio of the incident. In my view these confirm that the ball was out of the ruck (blue no. 16 is not bound at the ruck) and there is a shout of “ball’s out”. Natasha King executes a legal tackle correctly.’’
• But in cross-examination, the Defendant’s expert’s position came much closer to the position of the Claimant’s expert. He agreed that, within the definition of “possession” as set out in the 2017 laws of the game, the Claimant was not in possession and that his definition of a player being in possession who is “attempting to control the ball” did not accord with the legal definition. He further conceded that tackling a player who is not in possession of the ball amounts to a dangerous tackle.
• The Defendant’s expert proceeded to make several further concessions regarding his previous evidence, which led to the destruction of two of the essential elements of the Defendant’s case. This meant that if the Defendant’s defence to this claim were to survive, it would have to be put forward on a very different basis.

Result

Unsurprisingly, the judge found in favour of the Claimant –holding the Defendant liable to the Claimant for the injuries sustained.

This case demonstrates how a ‘’skilled, and precise cross-examination’’ has the potential to undermine expert evidence that is inaccurate, biased and therefore in conflict with an expert’s obligations under Part 35 of the Civil Procedural Rules (CPR), Rule 19 of the Criminal Procedural Rules and Part 25 of The Family Procedure Rules 2010.  It is not known whether the Defendant’s expert attended expert witness training. If they had attended Bond Solon’s expert witness training, they would have been made aware of these obligations, specifically rule 2.2 of CPR Practice Direction 35, which states that ‘’experts should assist the court by providing objective, unbiased opinions on matters within their expertise’’, rule 19.2 of the Criminal Procedural Rules, which provides that ‘’an expert has an overriding duty to give opinion evidence, which is objective and unbiased’’ and rule 4.1(d) of Practice Direction 25B of The Family Procedure Rules 2020. which states that experts should 'provide an opinion that is independent of the party or parties instructing the expert'.  

To help expert witnesses carry out their work in compliance with the rules, Bond Solon offers a variety of courses, such as Discussions Between Experts, Excellence in Report Writing and Law & Procedure (civil, criminal, and family law options). Please click here to view our full suite of courses.