EWI Chief Executive Officer, Simon Berney-Edwards, shares his thoughts on 2023, a year where Expert Witnesses have continued to come under increasing scrutiny.
As we come to the end of the year, I’m taking the opportunity to reflect on yet another interesting year for Expert Witnesses. Once again, there have been several high-profile cases which have reflected the best and worst in Expert Evidence. So here are my top ten takeaways from 2023.
1. Don’t get complacent
You may have many years of experience as an Expert Witness, but even the most experienced experts can get things wrong. Over the last year we have seen:
- Numerous reports submitted for assessment which have contained the wrong declarations and/or statement of truth.
- Examples of experts who were coerced by the legal team to do something that they felt wasn’t right, only to have this backfire in court.
- Examples of experts facing criticism in the witness box because they hadn’t addressed all the issues, evidence, or range of opinion.
So…….
2. Make sure you are up to date
Whilst the EWI will always cover key rule and regulation changes in our monthly newsletter, we have now started emailing members directly when key practice changes happen, or important guidance is issued.
However, why not take some time now to review your templates to make sure are using the correct declarations and statements of truth.
We’ve also created a Report Checklist you can use to ensure every report is compliant and of good quality.
3. Ensure you make yourself aware of some of the recent changes
On that note, you are hopefully fully aware of the recent changes that came into force at the beginning of October.
If you are not aware and you do work in these courts – it is important you familiarise yourself with these changes now.
4. Preparation is key to avoiding criticism
At this year’s Sir Michael Davies Lecture, the Honourable Mr Justice Williams, High Court judge and chair of The Family Justice Council Subcommittee on Experts, shared his views on the criticism of Experts in the courts.
His top tips to avoid it included:
- Remember the fundamentals of being an expert.
- Remain within your area of expertise.
- Comply with the relevant procedural codes.
- Don’t take on too much.
- Comply with timetables.
- Communicate any difficulties.
If you would like to hear more of what he had to say, you can access the recording.
5. Remain within your area of expertise
The judgment of Mrs Justice Bacon in Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2161 (Pat) contains an important reminder for experts. During the course of the trial, it transpired that one of the expert witnesses (whose qualifications in their own field were not in doubt) had written a report and gave evidence on matters that were clearly outside their field of expertise. The result was that the judge was unable to accept their evidence on any matter that fell outside their core area of expertise.I am looking forward to hearing Mrs Justice Bacon’s views on this case at our Conference next year!
6. Review your opinion when necessary
If another Expert (whose opinion you rely on) changes their opinion, make sure you consider the implications for your opinion. A good example of this can be found in Benjamin Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565(KB) which provides important lessons to be learned for all Expert Witnesses.
7. Take a moment to review your CV
Back in April, I reviewed the case of Watts v Watts [2023] EWHC 679 (Ch). This contains several learning points for experts. But one of the key issues affecting the credibility of the expert was that they had written nothing within their CV to demonstrate that they possessed the specific expertise relevant to the case.
Remember your CV needs to reflect why you can act as an expert in the case at hand.
Need some help? Why not attend our CV writing for Expert Witnesses webinar on the 24th January.
8. Consider how you might deal with dishonesty
The case of Muyepa v MOD highlighted the issues faced by Experts when dealing with fundamental dishonesty. Back in January, David Stothard, Managing Director at MAPS Medical, examined that case which was ultimately dismissed as a result of the claimant’s dishonesty.
He concluded by inviting experts to spend some time considering the evidence presented by the medical experts in this case set out in the judgment (paragraphs 167 to 278 inclusive), whether they fall within your area of expertise or not and reflect on how you might have presented your evidence had you been involved in the case.
9. Maintain your independence in discussions of Experts
There has been continued discussion during the year of the importance of remaining completely independent during meetings between Experts and ensuring experts do not involve their legal teams in the drafting of the joint statement or act on behalf of the legal team during the discussion. This was further clarified by new guidance from the King’s Bench division that clearly states this.
10. Maintain your credibility
Hopefully this will be clear by this point in this article, but some of the most easily rectifiable mistakes will seriously affect your credibility. So, as it is the end of the year, why not take some time to reflect on your practice and think about what you can do to ensure you retain your credibility in 2024.
And with that I wish you every success for the New Year.