August EWJ 24 - Flipbook - Page 85
How to Identify and
Navigate Reputational Risks
as an Expert Witness
Expert witness work can be intellectually stimulating and handsomely paid. For some experts, it
is viewed as a good way to supplement income with few risks. This article explores four primary
risk areas that may result in reputational harm for expert witnesses:
1. Criticism in a public judgment.
2. A professional negligence claim.
3. A third party wasted costs order.
4. Regulatory referral and employment issues.
expertise and the court and parties do not (save in some
professional negligence claims) means that significant reliance
may be placed on their analysis which must be objective and
non-partisan if a just outcome is to be achieved in the
litigation.”
1. Criticism in a public judgment
Most cases are resolved either through settlement or
discontinuance. Therefore, very few cases reach a contested trial where you give oral evidence and are cross
examined on your opinion. Despite this, a case should
always be prepared on the basis that it might end up
at trial and your opinion robustly challenged under
cross examination.
3. They fail to understand and apply the relevant
legal tests. It is important to understand the relevant
standards and legal tests upon which your opinion
should be based.
Three of the main criticisms levelled at expert
witnesses in reported judgments are:
In a professional negligence claim, for example, the
standard to be applied is the Bolam/Bolitho test, that is,
the defendant will not have been negligent if they
have acted in accordance with a responsible body of
professional opinion, providing it has a logical basis.
1. The matter doesn’t fall within their expertise.
Experts owe a duty to “help the court on matters within
their expertise.”1
It is important to ascertain from the outset whether
the matter falls within the scope of your professional
competence. If not, instructions should be declined.
It is not essential to share the same title, role, position,
or qualifications as the person facing allegations, only
that you have the relevant expertise to the issues arising on the facts of the individual case.2
In ZZZ v Yeovil District Hospital NHS Foundation Trust5
the expert was criticised on the basis that he “did not
know what the test for breach of duty is in a professional negligence case.” The same expert was criticised in Thimmaya v Lancashire NHS Foundation Trust6 for referring
to “best practice” as the test for professional negligence
in the joint statement, and for failing to properly
articulate the correct test at trial.
There is no specific definition of ‘expertise’, but it is
demonstrated to the court by virtue of an expert’s
knowledge, skill, experience, training, and education.
Legal blogging and articles by lawyers have seen a
notable surge in recent years. When an expert witness
receives criticism in a public judgment, it often gets
mentioned in such online writings. Research shows
that around 95% to 99% of individuals check reviews
of products and services online before purchasing a
product or hiring a professional. If you've faced criticism in a public judgment, a simple search of your
name could direct potential clients to these blogs and
articles. This could have lasting effects on your professional practice and reputation, extending well
beyond the specific case.
2. They act as an advocate or ‘hired gun’ for the
party instructing them. Experts should assist the
court by providing “objective, unbiased opinions on matters within their expertise, and should not assume the role of
an advocate.”3
Your obligation is to assist the court and not act as a
‘hired gun’ for those instructing you. In Muyepa v
Ministry of Defence4 Mr Justice Cotter stated:
[284] “Experts should constantly remind themselves through
the litigation process that they are not part of the claimant’s or
defendant’s “team” with their role being the securing and
maximising, or avoiding or minimising, a claim for damages.
Although experts always owe a duty to exercise reasonable skill
and care to those instructing them, and to comply with any
relevant professional code, as CPR 35.3 expressly states they
have, at all times, an overriding duty to help the court on
matters within their expertise. That they have a particular
EXPERT WITNESS JOURNAL
2. Professional negligence claim
Since the landmark case of Jones v Kaney7 in 2011,
expert witnesses can now face legal action for providing negligent expert evidence.
In civil claims, a case often turns on expert opinion.
Straying beyond your field of expertise or offering an
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