Should an expert witness help the course of the instructing solicitor?
The recent case of Van Oord Ltd & Another –v- Allseas (UK) Ltd highlighted the importance of an expert witness understanding his duties to the Court. Mr Justice Coulson was unrestrained with his criticism that the expert’s report was tendentious at best and in some areas misleading, relying heavily on hearsay evidence from the claimant & lay witnesses.
So should an expert be completely independent or should he try to assist his instructing solicitor?
Laird prepare forensic reports, predominantly on the subjects of causation, often called ‘low velocity impacts’ and fraud, particularly the consistency of damage between two vehicles.
Many years ago, we had a solicitor who would regularly instruct us on forensic cases, so we would provide him with very comprehensive reports. Some of our conclusions were damaging to his client’s claims so he would mitigate his losses by abandoning the case. He didn’t want to be involved in cases that were either poor evidentially or at times, highly likely to be fraudulent.
After footing the bill for a reasonable proportion of aborted cases he asked whether there was any way we could do a cheaper report. Always happy to provide what our clients want, we developed an interim report; we would jump to the salient documents or photographs and give a short report outlining our gut reaction on a likely supposition. If this turned out to be negative, the solicitor had the opportunity to bail out of the case with significantly lower costs than previously. Likewise if the conclusion was positive, he could go on to instruct us to prepare a full report.
[Delighted to say the vast majority of the time, after reviewing the documents in detail, the conclusion turned out the same or similar as our initial instinct.]
Do solicitors ask experts to alter their report?
They can ask, but only the most unscrupulous expert would ever alter their report unless of course further evidence had come to light, which would alter their findings. Even then an addendum report would have to clearly state this and the reasons behind the expert altering his position.
Who should the expert help in Court?
The expert witness is there to help the Court make a decision by explaining technical aspects and converting their expertise into understandable lay English. It should be of no interest to the expert who is to win the case, merely to present the facts independent of either side. The expert should be very clear that they are there to help the Court only.
For a free initial chat with an experienced expert witness about any automotive issue in a case, please call 0151 342 9961.