Is it within the remit of an expert to decide which witness of fact they believe or... Is it within the remit of an expert to decide which witness of fact they believe or...

Is it within the remit of an expert to decide which witness of fact they believe or...

The judge noted that the expert readily accepted that integral to his reasoning was that he did not believe the claimant as to the symptoms he had...
Procedure for Determining Mental Capacity in Civil Proceedings Procedure for Determining Mental Capacity in Civil Proceedings

Procedure for Determining Mental Capacity in Civil Proceedings

A Civil Justice Council working group has published a report setting out recommendations for the development of a procedure for determing mental...
When the joint statement is no more than really two statements, one from each expert. When the joint statement is no more than really two statements, one from each expert.

When the joint statement is no more than really two statements, one from each expert.

The 'joint statement' prepared by two blockchain experts was really two statements, one from each expert. Fabrizio D'Aloia v Persons...
Podcast Episode 6: In Conversation with Giles Eyre Podcast Episode 6: In Conversation with Giles Eyre

Podcast Episode 6: In Conversation with Giles Eyre

In the 6th Episode of Expert Matters Podcast, Simon talks with retired Barrister and expert witness trainer, Giles Eyre, who is retiring as an EWI...
The dangers of a considerable burden of expert work The dangers of a considerable burden of expert work

The dangers of a considerable burden of expert work

The court found that a highly respected and hugely experienced histopathologist expert wtiness, who was overburdened with work, had made errors in his...
A Day in the Life of a Medicolegal Expert Witness A Day in the Life of a Medicolegal Expert Witness

A Day in the Life of a Medicolegal Expert Witness

Sue Lightman is a Professor of Ophthalmology and Consultant Ophthalmologist who has been undertaking medicolegal Expert Witness work for over 20...
Thomas Murray Joins EWI as a Corporate Partner Thomas Murray Joins EWI as a Corporate Partner

Thomas Murray Joins EWI as a Corporate Partner

We are pleased to welcome a new Corporate Partner
Celebrating Success at the Sir Michael Davies Lecture Celebrating Success at the Sir Michael Davies Lecture

Celebrating Success at the Sir Michael Davies Lecture

Successful Certification candidates receive their certificate from Lord Hodge.
Podcast Episode 5: Range of Opinion Podcast Episode 5: Range of Opinion

Podcast Episode 5: Range of Opinion

Range of Opinion is the focus of the 5th episode of the Expert Matters Podcast. We catch up with Colin Holburn, Chair of the EWI Membership Committee,...
A Day in the Life of a Water Quality Expert A Day in the Life of a Water Quality Expert

A Day in the Life of a Water Quality Expert

Tim White is a chartered chemist who uses his expertise to assess chemical risk from exposure to water. He has been an Expert Witness for over 40...
Podcast Episode 4: Expert Fees Podcast Episode 4: Expert Fees

Podcast Episode 4: Expert Fees

Simon and Sean discuss expert fees and catch up with Dominic Woodhouse from Partners in Costs to talk about cost management and budgeting in civil...
A Day in the Life of a Fitted Kitchen and Bathroom Expert A Day in the Life of a Fitted Kitchen and Bathroom Expert

A Day in the Life of a Fitted Kitchen and Bathroom Expert

Jerry Ponder uses his 40+ years of experience in fitted interiors to provide expert evidence on the design, product quality, installation and project...

Check out our Case Updates and Member Magazine

Looking for more news relevant to the Expert Witness community? Why not check out our database of cases relevant to Expert Evidence or the latest and previous editions of our member magazine, Expert Matters.

News

Clicking on one of the topics below will display news items relevant to that topic. You can also use the search bar below to identify news items.

A court cannot ignore an unchallenged expert report
Sean Mosby 711

A court cannot ignore an unchallenged expert report

bySean Mosby

The Case

The appellant was appealing the dismissal by the Crown Court of an appeal against an order made by a District Judge for the immediate destruction of a dog, called Yosser, under s.4(1) of the Dangerous Dogs Act 1991. A key issue in the appeal was the status of an uncontested expert report.

 

The destruction order

Following two incidents involving Yosser, the North West London Magistrates made a Contingent Destruction Order (“CDO”), which required Yosser to be walked on a lead and muzzled when in a public place. Following a further incident involving Yosser (who was subsequently seized by the police), the District Judge made a Dog Destruction Order (“DDO”) on the basis that there was already a CDO and the appellant was not a fit and proper person to own a dog.

 

The decision of the Crown Court

The appellant appealed to the Crown Court which refused the appeal because it was not satisfied that the dog did not constitute a danger to public safety. The evidence before the Crown Court included two pieces of evidence that had not been before the District Court:

 

  • an expert’s report from Helen Howell, and
  • an unequivocal statement from the appellant’s brother that he was willing to take control of and look after the dog.

 

The Crown Court noted that, in reaching its decision, it had given due weight to the expert report. The court’s sole concern with the report was that that Ms Howell had not seen Yosser in a public area.

 

The expert evidence

Ms Howell provided an expert report which described her examination of Yosser including the dog’s behaviour during the examination. In her opinion, Yosser presented as a nervous but gentle dog and the appellant’s brother’s house was suitable for housing the dog. Ms Howell noted that her opinion of Yosser was “based on [her] professional judgment, experience and scientific knowledge and is an assessment of the risk [she felt] Yosser poses to public safety.”

 

She concluded that "[w]ith the following measures in place I am of the opinion that Yosser would not pose a danger to public safety:

 

  • Ownership and care of Yosser be transferred to Mr Terry Fitzgerald
  • Yosser should be walked on a lead and muzzled when in public."

 

On receiving Ms Howell’s report, the Crown Prosecution Service (“CPS”) responded saying that "[n]o issue is taken with the expert’s report/the expert’s report is not disputed. There is no need, therefore, for the expert to attend the public hearing.”

 

Consequently, the Crown Court had before it unchallenged expert evidence that Yosser would not pose a danger to public safety if walked on a lead and muzzled in public.

 

The High Court

Lord Justice Coulson noted that in R v Brennan (2014) EWCA Crim 2387, which is the leading case on unchallenged expert evidence in a criminal case, the court noted that “even if the ultimate conclusion was always for the jury, where there was no rational or proper basis for departing from uncontradicted and unchallenged expert evidence, the jury was not entitled to do so”.

 

He also noted that, there being no jury in this case, it was closer to a civil dispute. In the leading civil case on uncontested expert evidence, TUI UK Ltd v Griffiths (2023) UK SC48, the Supreme Court found that a party who challenged the evidence of a witness on a material point was obliged to cross-examine that witness. As that did not happen, and the possible exceptions to that rule did not apply, the trial judge should not have departed from the expert’s unchallenged conclusions.

 

None of the possible exceptions set out at paragraphs 61 to 68 of TUI UK Ltd v Griffiths applied in this case. Consequently, “if the CPS had wished to challenge Ms Howell’s conclusion about Yosser, they were obliged to require her to attend for cross-examination.” As the CPS did not do so, “the Crown Court was bound by her conclusion, unless there was a reason why that conclusion could be fairly ignored or discounted.”

 

The Judge was wholly unpersuaded that the Crown Court’s concern that Ms Howell had not seen the dog in a public place was a basis to fairly ignore or discount her evidence. He went on to note that if this were a real point of doubt, “she should have been asked about it, rather than her report and recommendations simply being set to one side.”

 

As the CPS did not identify a valid reason for departing from Ms Howell’s opinion, the Crown Court was bound to accept her conclusion.

 

Learning points

Learning points for instructing parties:

 

  • The court is bound to accept unchallenged expert evidence unless the possible exceptions set out at paragaph 61-68 of TUI UK Ltd v Griffiths apply.
  • If you intend to challenge the opposing party’s expert evidence, you should either adduce your own expert evidence or cross-examine the opposing party’s expert witness on the points you wish to challenge.

Share

Print
Comments are only visible to subscribers.