On Friday 8th November, Narita Bahra QC spoke as a guest speaker at Bond Solon’s Annual Expert Witness Conference in London. The event attracts approximately 500 experts from the legal field and beyond.
As in previous years, Bond Solon conducted a joint survey with The Times newspaper. With 569 experts completing the survey, it is one of the largest expert witness surveys conducted in the UK.
For a brief overview of the report, please see below.
Should judges have the power to permanently disqualify such experts who do not understand their role?
The results of the survey shows that experts clearly want all experts to understand their role and agree that those who do not have the necessary understanding should not continue. Nearly 60% agree that judges should permanently disqualify such experts.
In May 2019 a multi-million pound fraud trial collapsed when the witness Andrew Ager was found not to be properly qualified to give expert evidence. Should instructing solicitors be liable for costs when they fail to exercise due diligence in the selection and instruction of an expert witness?
Following on from the attitude to experts who do not understand their role, experts who took part in the survey are also concerned about those who are not properly qualified. Again, the results show around 70% of experts consider the instructing solicitor should be liable for costs if they fail to exercise due diligence in the selection and instruction of an expert witness.
Costs can be considerable, and solicitors need to be very careful at the pre-instruction stage to make sure an expert is properly qualified and experienced in the field relevant to the issues in dispute.
Expert witnesses obviously need to be up to date in their professional field, but they also need to be up to date in their role as an expert witness. Clearly instructing solicitors will want to know that the expert they choose is current in their professional field. Experts do have a sell by date and so those that have retired will have a limited time to act as an expert witness. Solicitors should look for current practice and credibility. In civil matters, the time of the events in dispute will be relevant in the choice of expert.
A good place to start is with the expert’s professional body if they work in a field that has one. The due diligence process solicitors go through before formally instructing an expert should include checking that the expert is registered with their professional body and this by implication will confirm that the expert is up to date with continuing professional development.
Also look for consistency in the way the expert’s details are presented to the public. Experts need to regularly review their websites, LinkedIn profiles, CVs, directory entries, lecturing profiles on university sites, expert witness organisations etc to ensure they are consistent and accurate. Any inconsistencies may be picked up by the other side to show incompetence and potentially discredit the expert. Experts should make sure areas such as attending training courses, attending and speaking at conferences, writing articles and publishing papers, research work and other activities are current. Solicitors should go through what is in the public domain to make sure there is consistency before the other side does.
In terms of their work as an expert witness, the expert will need to ensure that their reports are consistent with current court rules, practice and protocols. If reports are not court compliant, then the instructing solicitor will need to guide experts but this could have the unfortunate consequence of a suggestion of influencing the opinion. Better that the expert knows what is needed and gets things right first time. So, ask about current training if this is not set out in the CV.
Experts need to keep up to date with the law relevant to experts and this is best done through regular training either online or by attending specialist courses. Experts also need to hone their courtroom skills. Most civil cases settle, so actual court appearances can be infrequent and challenging and although lessons in presentation are learnt the hard way, solicitors do not want their expert to learn that way on the case in hand. Practice in a training session can be very valuable, less damaging and will give comfort to the solicitor that their witness will not collapse under real pressure. Again, ask about courtroom training if the matter is likely to involve the expert giving oral evidence and even suggest that the expert gets trained.
Garrick Law would like to express their gratitude to Bond Solon & The Times for inviting Narita Bahra QC to speak at this distinguished event.