Lord Neuberger, former president of the Supreme Court, has told expert witnesses that they can learn from the “impartial” way the court handled the Brexit case.
He also said experts were in a “very difficult position” in balancing their duty to the paying party with their duty to the court, and there was no “perfect answer”.
Speaking at the Expert Witness Institute annual conference last week, Lord Neuberger said that, in a “rather fetid atmosphere” the Supreme Court had supported the rule of law in a way that was “careful, considered and authoritative”.
He went on: “Nobody is expected to agree about everything and everyone is entitled to their own point of view, but once the top court has decided a point, that is the law.
“I’m referring to it not just because it’s the elephant in the room but because it’s relevant to the function that each of you perform. Courts are not just the judges or lawyers, but all the people involved in the decision-making.”
Lord Neuberger said that in order for people to have confidence in the rule of law, it was important for everyone to bear in mind their responsibilities.
“When it comes to expert witnesses, the whole point is that the judge needs help because he or she does not know about the topic. It is almost more dangerous for a judge trying a case when they know about the topic, than when they don’t.”
Lord Neuberger said the law placed expert witnesses in the “very uncomfortable position” of balancing their duty to the court with their responsibilities to the party that was paying them.
He said courts were good at emphasising duty to the courts, but not as good at appreciating the pressure on experts to support their client’s case.
“However difficult it is, you have to as independent and impartial as you can. The behaviour of the Supreme Court justices over the past few days reminds us all of the duty to be impartial.”
Referring to the Court of Appeal’s ruling in March this year in the case of Dr Asef Zafar, Lord Neuberger said the expert had been found not to have been impartial and more importantly “at the least reckless” about whether the information in his reports was true.
He described the High Court as “quite kind” in imposing a six-month prison sentence on the doctor, suspended for two years. However, the Court of Appeal later ruled that the sentence should have been nine months and he should have been sent to prison.
“This underlines the importance judges attach to expert witnesses being honest. If judges are misled, it undermines the system.”
On contingency fees, Lord Neuberger said that, so long as the civil justice system remained underfunded, there had to be “some mechanisms so that people can litigate on a no-win, no-fee basis”, although judges were “very uneasy” with it.
Lord Neuberger warned experts receiving contingency fees to be “frank about it” and tell the court and the other side or risk having their evidence “trashed”.
He added that everyone in the court system, including experts, should make documents shorter than they did.
“The pressure on litigation costs will continue and the pressure on experts increase. It is our duty to try and ensure the court comes to the right decision as quickly and cheaply as possible.
“We should keep documents shorter than we do. I don’t have any magic answer, but it is a problem. Whether the system will at some point say that experts should not have to look at everything or will continue to pay for it, I don’t know.”