Expert's report failed to comply with practically every requirement

The recent judgment by Master David Cook in Pal -v- Damen [2022] EWHC 004697 (QB) demonstrates that judges will consider the compliance of reports when assessing the weight to place on expert evidence.

 

Mr Steyvers’ report failed to comply with practically every requirement. It appeared to me that he was acting as an advocate on behalf of his client’s position which is perhaps not surprising as he acts for the Surgeon in Belgium.

 

In the judgement, he concluded:

 

55. I conclude that I can place no weight upon the evidence of Mr Steyvers. The requirements of an expert’s report are set out in PD 35 §3.2: “An expert's report must:

1. give details of the expert's qualifications;
2. give details of any literature or other material which has been relied on in making the report;
3. contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
4. make clear which of the facts stated in the report are within the expert's own knowledge;
5. say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;
6. where there is a range of opinion on the matters dealt with in the report –
   1. summarise the range of opinions; and
   2. give reasons for the expert's own opinion;
7. contain a summary of the conclusions reached;
8. if the expert is not able to give an opinion without qualification, state the qualification; and
9. contain a statement that the expert –
   1. understands their duty to the court, and has complied with that duty; and
   2. is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.”

 

56. Mr Steyvers’ report failed to comply with practically every requirement. It appeared to me that he was acting as an advocate on behalf of his client’s position which is perhaps not surprising as he acts for the Surgeon in Belgium. He did not give any proper consideration to the evidence of Ms Spronken and did not fully consider the available documentary evidence with the inevitable result that he did not provide a balanced opinion covering the range of possible opinions. The most obvious illustration of this tendency was his abrupt observation that Mr Beer’s report “contains a lot of mistakes and incorrect information”.

 

57. Mr Delvaux’s report was presented in a manner which complied with CPR 35 however, there are parts of his reasoning which do not withstand logical analysis, in particular his reference to the Court of Appeal of Liège case at §12 of his report. In my view and in agreement with Mr Beer the facts of this case are to be distinguished for reasons given by him in his supplemental report; on the basis of Ms Spronken’s uncontested evidence the Claimant did in fact have a choice of whether to proceed with the Surgeon and freely chose to do so. It was this issue which was the basis of Mr Delvaux’s opinion that there was an “all in” contract with the clinic.