Hodge urges judges and lawyers to improve “scientific literacy” to understand expert evidence


Hodge: Need to ask right questions

A Supreme Court justice has called for judges and lawyers to improve their “scientific literacy” to ensure they did their job effectively in cases involving expert evidence.

Lord Hodge also reassured experts that courts do not presume them to be “hired guns” who allow their instructing solicitors to call the tune.

Delivering the Middle Temple guest lecture, Lord Hodge referred to the Science Manual for Canadian Judges, published in 2013.

“Judges need to have a better understanding of scientific methodology so that they can ask the right questions when faced with applications to adduce expert evidence in areas where the reliability of the alleged science is questionable.

“In Canada, the National Judicial Institute has done valuable work to assist judges to cope with applications to lead such evidence, including the publication of a list of important questions which judges should ask themselves when faced with such applications.

“Lawyers also need to improve their scientific literacy to do their job effectively in cases involving expert evidence.”

Lord Hodge admitted being “very relieved” when a dispute over the construction of a motorway, “likely to involve complex and contested evidence from civil engineers”, was settled.

“In order to prepare me to hear the evidence, the parties agreed to the engagement of an expert road engineer, who was not involved in the disputed project, to give me a non-contentious private briefing on the physics which underlay the dispute.

“I found it very valuable when I read the papers in advance of the trial, but was nonetheless very relieved when the parties compromised the case.”

Lord Hodge acknowledged that UK courts did not assume that experts were hired guns who would allow their instructing solicitors to call the tune.

“Instead, we seek to promote a norm of fair play. The promotion of fair play calls for an awareness that because an expert enjoys a privileged position in the forensic process, he or she can cause significant harm by failing to be reflective and balanced in approach, by going beyond his or her expertise, by adopting a crusading approach to a subject, by being partisan, and by straying into the role of advocate.”

Lord Hodge referred to comments by Anthony Speaight QC, following Mr Justice Cresswell’s ruling in the leading case of The Ikarian Reefer, which pointed out that an expert report could not be a “wholly independent product as lawyers were inevitably involved”, at least in posing the questions.

“That must be so. It is the expert’s answers, which on occasion may include the reformulation of the question, which the lawyers must not distort.”

Lord Hodge went on: “He also suggested that the assistance of the court by an expert would not be wholly independent as the expert would advance the case of the party who called him or her, within the limits of propriety.

“In my view, the guidance is salutary and in particular the requirements of independence and lack of bias set the limits of propriety and serve to protect the professional integrity of the expert.”

Lord Hodge concluded: “The expert witness often has a difficult task to perform. When the task is performed well, expert evidence can be invaluable in determining a controversy.

“The upholding of both the standards adopted by expert witnesses and the quality of their evidence is a collaborative exercise in which the judge, the lawyer and the expert’s professional organisations each have an interest.”

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