Senior judges have called on expert witnesses to show greater openness and avoid “hiding behind the team view”.
Speaking at the Expert Witness Institute (EWI) annual conference last week, Mr Justice Foskett, judge in charge of the Queen’s Bench Civil List, told experts: “I would want to encourage openness in the expression of views.
“I’ve been a barrister for a long time and in conferences with experts, and I know the considerations that have a bearing when you are formulating your views and your reports.
“From my perspective now, I have no problem with experts who are open about their views, who look at opposing views and perhaps criticise them – that’s fine, that’s their job.
“That kind of expert is much more persuasive and of much more value to the court than anyone who is just hiding behind a particular team view.
“If you sit where I sit, you can see the team view coming out, and not the expert’s view.”
In the same session, Sir Peter Thornton QC, the former chief coroner who is shortly to chair the new inquests into the 1974 Birmingham pub bombings, said: “Openness is very important, especially in the criminal sphere.
“It is absolutely vital that if there is anything missing in the data you’re looking at, you should say ‘I’ve got to ask for that’ or ‘this is a provisional opinion only’.
“Or, if there is some test that someone needs to carry out on your behalf and it doesn’t quite fit your conclusion, for goodness sake, say so. Otherwise the case will go three years down the road and collapse, and have to be tried all over again.
“Openness is important, and judges really do appreciate that.”
Mr Justice Carr, the other judge on the panel and one of three High Court judges assigned to the Patents Court, agreed with the call for openness and said he listened more to experts who were prepared to acknowledge that someone on the other side had got something right, rather than hearing them repeat “the same thing we’ve just heard from the advocates”.
Asked how judges could satisfy themselves that an expert was truly independent, Sir Peter said their CVs could be “very, very revealing”.
He said he was particularly interested in the way CVs were written, the emphasis and whether the expert had experience of a different field, unrelated to what they did most of the time.
“It’s very important to know your expert, and if not to make enquiries of your fellow judges so you know about other views.”
Foskett J said that whether an expert was reliable or not emerged “over a period of time”, at the point when a judge got a sense of the “whole picture” in a case and where the expert evidence fitted in.
Carr J said he found experts “very helpful” and it was an exception to find one simply acting as an advocate.
On the question of whether experts mentioned the “range of expert opinion” in their reports, as they are required to under the Civil Procedure Rules, Foskett J said many paid lip service to the rule.
He said that in many of the reports he saw, particularly for medical negligence cases, experts included a “declaration at the end that they’ve taken into account other views”, but there was “nothing in their reports” to suggest that they had actually done that.
On hot tubbing, Carr J said that although it had not yet been introduced for intellectual property cases in the UK, it had been in Australia.
“My personal view is that in very complex cases it won’t work because of the need for the judge to do too much work preparing for it, but in very straightforward cases I am keen to try.”
Foskett J said although it was often not until a “case got going” that a judge understood it, and by then it was too late to get the experts together, he could “see the advantage” of hot tubbing.