oct ewj 24 online - Flipbook - Page 61
Ltd v Freudenberg FST GmbH [2021] EWHC 1413
(TCC) concerned defective car parts. Contrary to the
provisions of the Guidance for the Instruction of Experts in
Civil Claims 2014, the defendant did not include in its
expert reports a list of the documents provided by the
defendant (or its solicitors) to the experts. The
claimant raised this failure at the PTR and the Court
ordered the defendant to correct the position. It
emerged at trial, however, that the failure to list documents masked a host of more serious problems: the
defendant’s experts turned out to have had “unfettered
and unsupervised access to the defendant’s personnel”, had
been provided with information during calls and
meetings not attended by solicitors and of which there
was no record, and had engaged in site visits which
they had not informed the claimant’s experts about at
all (including in their reports). The Court found that
the “free flow of information” without any gatekeeping by
solicitors was “entirely unacceptable”, presenting a
“paradigm example of what can go wrong if an expert is left
to obtain information direct from his clients.” The - disastrous – outcome was that the defendant’s expert
evidence was struck out at trial, leaving them with no
practical answer to areas of the case.
report or to cross-examine the claimants’ expert. In
closing submissions, the defendant sought to levy various criticisms of the expert’s analysis and invited the
tribunal to reach alternative conclusions. These were
challenges to the evidence which the claimant’s expert
had not had the opportunity to address. The defendant fell foul of the rule in TUI and the lack of competing evidence, or cross examination, hindered the
belated attempts to undermine the expert’s evidence.
This illustration of the rule in TUI demonstrates that
a failure by a party to put criticisms to an expert in
cross-examination will prevent that party from advancing those points in its own submissions. In that
scenario, the Court may consider the expert’s evidence as unchallenged and therefore uncontroverted.
Experts and those instructing experts must be alive to
the rule in TUI and ensure that where evidence is to
be challenged, all of the relevant points are put
squarely to the expert. Conversely, parties should be
conscious of occasions where opposing parties have
failed to put points to experts in cross-examination to
prevent later attempts to challenge that evidence.
Authors
Nikolas Ireland, Partner
nikolas.ireland@macfarlanes.com
These cases offer a salutary reminder that expert
witnesses owe an overriding duty to the court. If an
expert witness comes to suspect that, as in Glover,
changes to a joint report come from opposing solicitors, rather than the other expert, it is entirely proper
to raise this concern. But equally, an expert preparing their report can and should expect suitable supervision from their instructing solicitors to ensure
that their report best assists the court. The critical
point is for both the expert and the instructing solicitors to be satisfied that they understand their role and
obligations under the Civil Procedure Rules. If an expert feels that this is not being complied with and they
are receiving too much or too little, they should feel
confident to raise this.
Christoper Charlton, Partner
christopher.charlton@macfarlanes.com
Madeleine Brown, Senior Knowledge Lawyer
madeleine.brown@macfarlanes.com
www.macfarlanes.com
Mr Adam Ross
Consultant Ophthalmic Surgeon
MBChB, FRCOphth, FHEA, PGC MedEd, MBA
Adam Ross is a Consultant Ophthalmologist with a sub-specialty interest in cataract
Cross examination of experts
In our adversarial system, it is of paramount importance to ensure that evidence can be properly assessed,
tested and clarified. Where expert witnesses are giving
evidence, any criticisms of that evidence should be put
to them in cross-examination so that the expert has a
proper opportunity to explain or clarify their evidence. If expert evidence is not challenged in this way,
the Court will usually follow it unless there is a good
reason not to, such as it being manifestly wrong or that
it amounts to mere assertion without proof. Therefore, challenges to an expert’s evidence through submission only (and not in cross-examination) are
narrowly limited to occasions where the evidence is
clearly and obviously wrong, or patently absurd. In
practice, this is very rare.
surgery, including micro-incision and complex cataract surgery, medical retina and
uveitis. He has over 15 years experience in medicine, and was previously the lead for
the medical retinal service at the Bristol Eye Hospital, as well as being exceptionally
active in clinical research, as the principal and chief investigator on a variety of trials. He
carried out his training in Bristol and Cheltenham, as well as visiting fellowships in New
York and Washington. He further completed various post-graduate qualifications.
Mr Ross is a fellow of the higher education academy, and continues to be actively
involved in teaching of ophthalmologists in addition to allied health professionals.
He has an extensive background in teaching and was the Ophthalmology
Postgraduate Training Director and Head of School for Ophthalmology in the Severn
Deanery, as well as an Honorary Senior Clinical Lecturer at the University of Bristol.
His expertise lies in cataract surgery, complex cataracts, premium multifocal and toric
intraocular lenses, as well as retinal disease. Mr Ross is also involved in research
within the subspecialty of retina at Boehringer Ingelheim, and sits on the board of
trustees for the charity SRUK (Sight Research UK).
Dr Ross has vast experience in acting as an expert witness. He is familiar with my
duties as an expert witness under Part 35 of the CPR and is happy to be instructed
as a joint expert witness. He currently prepares expert reports for a number of r
eputable medical agencies who are members of the Association of Medical Reporting
Organisations.
Dr Ross now has a dedicated medico-legal service with turnaround of reports of 4
weeks with competitive quotes from the outset of instruction.
This position has been confirmed in a recent Supreme
Court case, TUI UK Ltd v Griffiths [2023] UKSC 48.
That case provides a warning for practitioners who do
not challenge an expert in cross-examination on the
evidence which has been given.
Dr Ross regularly publishes in ophthalmic literature.
Contact:
Email: office@legaleyeunit.co.uk - Alternate Email: adamross@doctors.org.uk
Website: www.adamross.co.uk
Address: Nuffield Hospital, 3 Clifton Hill, Clifton, Bristol, BS8 1BN
Alternate Address: 25 Harley Street, London, W1G 9QW
We have recently seen a practical example of a
defendant choosing not to file a responsive expert
EXPERT WITNESS JOURNAL
Adam Ross
Tel: 0117 369 1179
Area of work: London & Bristol Areas
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