The use and abuse of expert witness evidence in licensing
This article first appeared in the Journal of Licensing, October 2018
“Don’t take too seriously all that the neighbours say. Don’t be overawed by what the experts say. Don’t be afraid to trust your own common sense”
- Benjamin Spock, Dr. Spock’s Baby and Child Care (1945)
The Good Old Days?
I remember the first time I saw an expert report in a licensing case. It thumped down on the bench in front of me at Sunderland Magistrates’ Court, just as its author made his way to the witness box to give evidence. Following a short in-chief confirmation of the report’s content (that there was no demand for my client’s proposed off-licence), it was my turn to cross-examine. No notice had been given that an expert was to be called. The year was 1996; the rule seemed to be that, when it came to licensing, there were no rules.
Ah, the good old days. And, I confess, there may well have been subsequent cases where my client’s expert report was introduced as a rabbit might be from a magician’s hat. Indeed, I can recall my consternation when commentary in Paterson’s Licensing Acts suggested that the coming into force of the Human Rights Act 1998 could mean that notice would have to be given if an expert was to be called, and even require the disclosure of the written fruits of that expert’s research in advance! Good grief! Next they will be telling us that we have to pay regard to the decision below when appealing!
But enough of the past - things are much better now, surely?
In the civil courts, procedural reforms introduced by the Civil Procedure Rules 1998 (“CPR”) fundamentally changed the approach to expert evidence in civil trials. The new rules sought to restrict the use of expert evidence, introduced a procedural code for advance disclosure of reports and the narrowing of issues thereafter, and codified the common law principles as to the content of reports. The criminal courts have caught up, with a series of rules (now the Criminal Procedure Rules 2015 (“CrPR”)) providing for advance disclosure of expert evidence within active case management by all criminal courts.
But licensing continues to fall between the gap, being perceived as neither CPR fish nor CrPR fowl. Although increasingly sophisticated case management directions emanate from magistrates’ courts, even Westminster’s (frequently serving as a model elsewhere), with its provision for tabs and indexes and pagination, makes no distinction between the evidence of lay and “expert” witnesses.
It is still feasible to introduce expert evidence in licensing appeals without the procedural scrutiny that is second-nature in the civil courts (and rapidly becoming so in the criminal courts). And, I will suggest in this article, too often the duties an expert owes the court (and potentially committees) are forgotten. It is not uncommon in licensing cases to come across biased “expert” evidence, tailored to please the expert’s paymaster (if not actively advocating on behalf of his case).
Civil cases: Part 35 of the Civil Procedure Rules
The relevant rules are found in Part 35 of the CPR:
the court and the parties have a duty to restrict expert evidence to that reasonably required to resolve the proceedings: CPR 35.1;
expert evidence may not be adduced without the court’s permission: CPR 35.4(1);
experts have an overriding duty to the court to help it on matters within their expertise, which overrides any obligation to the persons instructing and/or paying them: CPR 35.3(1)-(2);
expert evidence is to be given in a written report unless the court directs otherwise: CPR 35.5(1);
parties can put written questions about an expert’s report to an expert for the purpose of clarification of the report, and the expert’s answers (which, if not given, can result in the exclusion of his evidence) form part of his report: CPR 35.6;
the Court can direct that a single joint expert be used in lieu of each party calling their own experts: CPR 35.7;
the Court can direct that experts conduct discussions to identify and discuss expert issues in the proceedings and, where possible, to reach an agreed opinion on them: CPR 35.12;
expert reports must contain a statement stating that the expert understands and complied with their duty to the court: CPR 35.10(2);
expert reports must state the substance of all material instructions, whether written or oral, on the basis of which the report was written: CPR 35.10(3);
those instructions are not privileged, but disclosure of them will not be ordered or cross-examination upon them will not be permitted unless the court is satisfied that there are reasonable grounds to consider that the statement of instructions is inaccurate or incomplete: CPR 35.10(4).
Further meat to those bones is added by the Practice Direction to Part 35 (“PD 35”). Section 2 sets out the general requirements of expert evidence, largely mirroring the “Cresswell Principles” (of which more below):
2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
2.3 Experts should consider all material facts, including those which might detract from their opinions.
2.4 Experts should make it clear –
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for example because they have insufficient information.
2.5 If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.
PD 35 also prescribes the content and form of an expert’s report:
3.1 An expert’s report should be addressed to the court and not to the party from whom the expert has received instructions.
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 –
(a) summarise the range of opinions; and
(b) 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 –
(a) understands their duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014 .
3.3 An expert’s report must be verified by a statement of truth in the following form –
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
Criminal cases: Part 19 of the Criminal Procedure Rules
A “low fat” version of the Part 35 regime (but perhaps with “new improved flavour”) operates in the criminal courts. The main difference is that permission is not required to rely on expert evidence (as one would expect where the defendant’s liberty is at stake). The relevant rules are found in CrPR Part 19. They include requirements that:
an expert must help the court to achieve the overriding objective (that criminal cases be dealt with justly) by giving opinion which is objective and unbiased, within the expert’s area of or areas of expertise and by actively assisting the court in fulfilling its duty of case management, in particular by complying with directions made by the court and at once informing the court of any significant failure (by the expert or another) to take any step required by a direction: CrPR 19.2(1);
that duty overrides any obligation to the person instructing and/or paying the expert: CrPR 19.2(2);
the duty specifically includes obligations (a) to define the expert’s area of expertise (i) in the expert’s report, and (ii) when giving evidence in person; (b) when giving evidence in person, to draw the court’s attention to an question to which the answer would be outside the expert’s area or areas of expertise and (c) to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement: CrPR 19.2(3);
expert evidence may not be introduced without agreement or the court’s permission unless (a) it is admitted as a fact or (b) a written expert report is served as soon as is practicable: CrPR 19.3;
CrPR 19.4 provides that expert reports must contain similar information to that provided for in PD 35;
the court may direct experts to discuss the expert issues in the proceedings and prepare a statement for the court of the matters on which they agree and disagree, giving their reasons: CrPR 19.6;
the court has power to direct that evidence is to be given by a single joint expert: CrPR 19.7.
Active case management in the civil and criminal courts
Both the civil and the criminal courts use active case management to identify whether experts are required at an early stage. In the civil courts, the form N150 allocation questionnaire requires the parties to identify whether expert evidence is required. For criminal matters in the magistrates, the CrPR 3.2 and 3.3 “Preparation for trial” form has boxes to be ticked in respect of certain expert disciplines (fingerprint, DNA, medical, scientific evidence) and a reminder of standard time limits for service of expert reports.
In directions hearings for magistrates’ court licensing appeals where I have appeared in recent months, disbelief has been expressed by two separate district judges that no similar system exists in licensing cases.
That astonishment no doubt reflects the position that in criminal cases, the old days of “ambush” are long gone. R (on the application of Aylesbury Vale District Council) v. Call A Cab Ltd [2013] EWHC 3765, concerned offences of unlawfully operating private hire vehicles contrary to the Local Government (Miscellaneous Provisions) Act 1976, which is an adoptive Act. On the day of the trial, for the first time, the defence took for the point that there was no proof that the prosecuting local authority had resolved to adopt the 1976 Act. Treacy LJ was less than happy (at [33]):
… I was concerned on reading these papers to see that the issue of the validity of the by-law had not been raised at the case management hearing, nor had it been raised in the defence statement. Good practice, and the observations on a number of occasions by this court, dictate that an issue of this nature should be raised well in advance of the hearing so that all parties are in a position to present relevant evidence to the court at the time when the case is listed for hearing. In this instance an adjournment of over a month was necessary and a further day of court time was taken up. In reality, the raising of the issue at such a late stage can properly be described and has been described as tantamount to an ambush. I repeat that it is not good practice and it should not happen in the future.
Case management in licensing
In a licensing appeal heard in 2018 by DJ Kate Meek sitting at Newcastle Magistrates’ Court, Endless Stretch Limited v. Newcastle City Council and Danieli Holdings Limited, concerning a premises called “Stack”, “Westminster” style directions left the (trade objector) appellant sufficient room to serve (without prior warning that it intended to do so) a voluminous (114 page) expert report just four weeks before the appeal, giving the respondents two weeks in which to consider it and formulate such written evidence as they wanted to put in response. Seeking an adjournment was not an option given the commercial imperative of dealing with the appeal rapidly (the premises were in the course of construction).
Whilst a month in advance is better than getting the report when the expert is walking towards the witness box, it is unsatisfactory that in an appeal of significant commercial significance to an operator, involving an operation of importance to the local community and economy, an expert was sprung on the respondents in a manner that would be out of the question in any run of the mill personal injury claim or building dispute.
One lesson going forward from is for respondents to raise at case management the question of expert evidence, and, perhaps, to ask for a direction along the lines that expert evidence is not to be permitted unless a report complying with CrPR 19.4 is served in good time, with CrPR Part 19 to apply generally to expert evidence in the appeal.
Magistrates have an implied power to control and regulate their own procedure to ensure effective resolution and determination of the function imposed upon them by the statute at play: per Moses LJ in R (Chief Constable of Nottinghamshire) v. Nottingham Magistrates Court [2009] EHWC 3182 (Admin) at [35]. Given that the magistrates (or, in taxi licensing and firearms cases, the crown court) will be familiar with CrPR Part 19, this seems a sensible, accessible and ready-made code to use in imposing some sort of discipline on what litigants might otherwise consider to be free rein to deploy expert evidence. And, as I go on to detail, Part 19 CrPR codifies - and therefore reinforces - the common law duties and responsibilities placed on experts that are all too often ignored in practice.
An expert’s duties and responsibilities at common law
In National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”) [1993] 2 Lloyd’s Law Reports 68, Cresswell J, exasperated by the volume and content of expert evidence as to what caused that particular ship to catch fire, set out “the duties and responsibilities of experts in civil cases” as including:
1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
These propositions (known as “the Cresswell Principles”) represent a statement of an expert’s duties and responsibilities at common law which have been approved at the highest level (Kennedy v. Cordia (Services) LLP [2016] UKSC 6 at [53]).
They therefore apply to experts giving evidence to courts where no other code applies: so including courts hearing licensing appeals (as was accepted by DJ Meek in the Stack appeal (para G.2.8)).
What about licensing sub-committees?
What of licensing sub-committees, which, as Hope and Glory tells us, are administrative rather than quasi-judicial bodies?
As such, they are entitled, if not obliged, to take into account all relevant matters, “whether or not any reports or information … would be strictly admissible in a court of law”: Kavanagh v. Chief Constable of Devon and Cornwall [1974] 1 QB 624, per Roskill LJ.
Does this mean no rules apply to the admission of expert evidence before committees and other decision-makers?
I suggest that whilst it is easy to justify a permissive approach to the admissibility of factual evidence, it is hard to see why a similarly permissive attitude should be taken to expert opinion evidence. Whilst facts might be in short supply, and therefore a regulatory body should take account of all facts that are be available, the same cannot be said about opinion evidence created for the purpose of the hearing.
If an “expert” is giving opinion evidence to a licensing sub-committee, then I suggest there is no good reason why, if any weight is to be given to the same, the expert should not have complied with the Cresswell Principles (and be seen to have complied with them). Requiring that standard of an expert would correspond with a licensing authority’s duty to behave fairly in the decision-making process . It is hardly “fair” if an authority receives expert evidence without any enquiry as to whether the same is biased or slanted, independent or written to order.
Whilst Hope and Glory has emphasised the distinction between bodies exercising an administrative function on the one hand and the courts on the other, in cases involving “open justice”, the courts have equated the responsibilities placed on courts and non-judicial tribunals. In R (Guardian News and Media Limited) v. Westminster Magistrates’ Court [2013] QB 618, Toulson LJ (as the then was) said that “the requirements of open justice apply in all tribunals exercising the judicial power of the state”, a principle said by the Supreme Court in Kennedy v. Charity Commission [2015] AC 455 to apply to all public bodies carrying out an “inquiry” (as defined in the Freedom of Information Act 2000 - a definition which would include licensing sub-committees). It seems difficult to see how, if licensing sub-committees must apply “open justice”, it is somehow permissible to for them risk bringing about injustice by receiving expert evidence that fails to comply with the Cresswell Principles. This is particularly given that, by virtue of s.21(1) and (2) of the Legislative and Regulatory Reform Act 2006, in the exercise of their functions, licensing authorities must have regard to the principles that those functions should be carried out in a way which is, amongst other things, transparent, accountable and consistent.
Competence of experts
In Kennedy v. Cordia (Services) the Supreme Court agreed (at [43]) that the South Australian case of R. v. Bonython (1984) 38 SASR 45 gave relevant guidance on the admissibility of expert evidence:
Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
Admissibility needs to be dealt with as a preliminary issue, but matters relevant to admissibility are also relevant to weight. In the Stack appeal, the respondents decided not to contest the admissibility of the expert report, but take the points relevant to it on weight, an approach with which, in her detailed written judgment, the judge agreed (para 4 of section G.2).
Though the expert must be “skilled”, by special study or experience, the fact that he has not acquired knowledge professionally goes merely to weight and not admissibility: McCaughan v. Secretary of State for Northern Ireland [2009] NIQB 65 at [15-21]. Expert knowledge can be acquired in a particular sphere through repeated contact with it in the course of one’s work, notwithstanding that that expertise is derived from experience rather than from formal training: R. v. Oakley [1979] RTR 417 (CA).
Police officers - frequent witnesses in licensing cases - can give expert evidence relating to matters about which they have acquired in-depth knowledge. Examples in the case law include the values of prohibited drugs and what paraphernalia is associated with drug dealing and the practices of gangs . Police officers with specialist training in the investigation and reconstruction of road traffic accidents routinely give evidence in criminal and civil trials.
A person can become so involved with a particular transaction that expertise is acquired in relation to it: a so-called “ad hoc” expert. So, for example, when a police officer studied a video tape about 40 times, examining it frame by frame and replaying it as often as he needed to do so for the purpose of giving evidence to the jury that the persons seen on the video were those accessed of the offences recorded there (R. v. Clare and Peach [1995] Cr.App.R. 333).
Responsible authorities
Where a police officer (or indeed any other public servant) is called as an expert to give opinion evidence, whether by training or experience or both, he or she comes under the same duties to the court as any other expert.
The s.182 guidance explicitly recognises that responsible authorities, including the police, are a source of expertise. Paragraph 9.12 (as amended following criticism of its predecessor by the House of Lords’ Select Committee) provides:
Each responsible authority will be an expert in their respective field, and in some cases it is likely that a particular responsible authority will be the licensing authority’s main source of advice in relation to a particular licensing objective. For example, the police have a key role in managing the night-time economy and should have good working relationships with those operating in their local area. The police should usually therefore be the licensing authority’s main source of advice on matters relating to the promotion of the crime and disorder licensing objective. However, any responsible authority under the 2003 Act may make representations with regard to any of the licensing objectives if they have evidence to support such representations. Licensing authorities must therefore consider all relevant representations from responsible authorities carefully, even where the reason for a particular responsible authority’s interest or expertise in the promotion of a particular objective may not be immediately apparent. However, it remains incumbent on all responsible authorities to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing.
The evidence of the police and responsible authorities will often be a mix of factual evidence and opinion evidence. Factual evidence will include matters such as crime statistics or noise levels (albeit that some ostensibly “factual” evidence is - in reality - expert opinion evidence - the selection of past incidents are considered relevant, for instance, engages expertise); opinion evidence will often be directed to the likely future effect of a decision.
It must of course be borne in mind that a licensing sub-committee, or for that matter an appeal court, cannot delegate the decision-making role to the expert (Kennedy v. Cordia (Services) at [49]). Whilst it is on occasion permissible for an expert to express an opinion on the “ultimate issue”, caution needs to be exercised when an expert does so.
It is worthwhile checking with responsible authority witnesses whether they have considered what their approach to the tribunal is. Have they attempted to be objective and unbiased? Are they there to assist the committee (or the court)? If they are there to assist the committee, would that override instructions from superior officers? It is also good practice to separate the roles of advocate and witness for responsible authorities.
Independence and objectivity; an expert should avoid advocacy
Any expert who purports to give self-described “independent” expert evidence can expect to have that assertion checked. In the words of DJ Meek in the Stack appeal (at [G.2.7]):
In any court proceedings, parties can expect the evidence on which they rely to be tested and, where appropriate, robustly so. The evidence of expert or skilled witnesses, as much as any other (arguably perhaps more so) must be able to withstand that rigorous scrutiny if it is to be afforded weight and if it is to be of assistance to the Court in the way it should be. Where the evidence is found to be lacking it is likely to effect the weight that is given to it and the assistance it can provide the court particularly where the court has other conflicting evidence on which it can rely and place greater weight.
In the event, DJ Meek was not persuaded that the expert in question had given independent or impartial evidence.
48. Having considered all of his evidence I was left with the clear impression that Mr Turnham, whether because he was influenced by his initial instructions or otherwise, did not produce an independent or impartial study or give independent or impartial evidence. I cannot reconcile his explanation about his impartiality within the ambit of his instructions to consider negative aspects not least because on occasions when he was asked about the partiality of aspects of his evidence he referred back to the limitations of working within those instructions. On one reading of at least sections of his evidence it appears that he was not only impartial but determined in his instructions and made positive efforts to point out the negative. I was also concerned about Mr Turnham’s understanding of his role within the proceedings – whether it was a neutral role to assist the court or an adversarial one to maintain his own position or benefit his client.
49. There were times when I considered he adopted an inappropriately adversarial approach and others when I considered him to be evasive particularly when he considered himself or his findings to be being subject to challenge. At times I was equally, if not more, concerned about the manner in which he dealt with questions as with the answers that finally came. I regret to say that Mr Turnham’s approach to questions when he was, or perceived he was, being challenged or criticised all too frequently led to evasive and obstructive exchanges. On occasions he appeared affronted or surprised that he was subjected to rigorous cross examination about relevant issues or that the Respondents had undertaken a forensic approach to his evidence.
50. There were errors, inaccuracies and omissions in his report about matters of varying significance. They were almost always adverse to the 2nd Respondent and were not acknowledged until his live evidence and then remained unexplained. Given their nature I consider them difficult to understand. There are a variety of possibilities none of which, particularly in light of my view of his independence, are particularly attractive in the context of an independent expert providing evidence to a court. At best they suggest that he had not read or thoroughly understood the documentation he had been provided with.
51. I too accept that Mr Turnham has some experience of relevance to this appeal. I do not suggest that his evidence is inadmissible or should be given no weight at all. I was unable to undertake any comparative assessment of his expertise not least given his own evidence about the shortage of supply of such experts or consultancies and his area of work being unregulated or monitored or attached to any professional body. On the basis of the evidence I heard I consider that his report was presented in a way that in some respects over exaggerated his experience, the reach of MAKE Associates and the resources that had been deployed in preparing the report. This not so much in a dishonest way but in a manner that, whether inadvertently or otherwise, painted a less than accurate picture.
52. The images presented in his report that had come from [the Appellant’s guiding mind] Mr Robertson, whilst not necessarily the most significant issue themselves, although not insignificant, captured a number of my concerns that also arose elsewhere: they demonstrated partiality and an adherence to his instructions rather than an adoption of the approach he previously said he had taken to present the negative, positive and neutral notwithstanding his instructions; that he had as part of his preparation of the report obtained source material from his client and not just that which he knew his client had already but also asking his client to carry out a review; they were out of date; he made assumptions about them and demonstrated a lack of attention to detail and enquiry that would be expected from an independent expert witness; he was evasive when being questioned about them; the way in which he chose to present them in the report arguably added to the lack of objectivity; he presented them as illustrative of his point; when questioned about them he did not see, or was unprepared to see, any problem with his approach.
53. When he was re-examined by Mr Gouriet QC about the criticisms that had been made of him his answers afforded me little comfort. He confirmed that whatever else may be said his evidence was truthful, he had not exaggerated or minimised it to benefit his client or damage the 2nd Respondent, he did not change anything in his report at the request of third parties nor did he set out determined to find negative cumulative impact (although again said that was what he was asked to look for). He was asked if he had reflected on the criticisms that had been made in cross examination and whether he could see some force in them. He thought there were some legitimate concerns about presentation. Asked if he would carry forward some lessons for the future his response appeared to acknowledge that the underlying detail on which conclusions were based was not made available. The concerns about his evidence cannot be dismissed as presentational, they are more fundamental than that. It was also a little late to acknowledge the failing in underlying detail. In my view his responses did not demonstrate any real acceptance of those criticisms nor that he understood the impact of them.
54. I make it clear I do not consider that Mr Turnham was dishonest in his evidence. My concerns were not of the truth or lies variety. Nonetheless, there were real issues about credibility. For the reasons I have given I do not accept that Mr Turnham’s evidence as independent expert evidence. For the same reasons the weight I feel able to give his evidence of substance is reduced.
Whilst a judgment of such length and detail is atypical in the licensing field (the section on expert evidence alone running to 54 paragraphs in a judgment running in total to 113 pages), the issues identified by DJ Meek in Stack are very common in the civil courts.
Time and again, the civil courts have rejected expert evidence, biased in favour of the instructing party, which has strayed into advocacy. Examples are not hard to find. Just a handful (all from 2018):
• Gee v. DePuy International Ltd [2018], where Andrews J. observed (at [19]):
The Court heard and read evidence from a wide range of experts in numerous different disciplines. Whilst most of the experts, irrespective of who called them, were mindful of their duties to the Court, I regret to say that a minority of the claimants’ experts were not. Some gave the appearance of acting as advocates in the claimants’ cause. Sometimes that was not entirely the expert’s fault, because of the approach he had been instructed to take, but others were plainly partisan, and their reports lacked the necessary balance and impartiality. That has meant that, unfortunately, I have found their evidence unreliable, and I have placed little or no weight upon it or preferred the evidence of DePuy’s experts in matters that were contentious.
• Ruffell v. Lovatt, 4 April 2018, Winchester County Court, HHJ Hughes
The contrast between Dr Jenner’s determined advocacy of the claimant’s position and the more considered and balanced evidence of the other three medical experts was striking. The other experts listened to the questions and answered them, briefly and as best they could. Dr Jenner did not... I cannot rely on the opinion evidence of Dr Jenner.
• The LIBOR appeal, R. v. Pabon [2018] EWCA Crim 420 (at [52]):
Put bluntly, Rowe signally failed to comply with his basic duties as an expert. As will already be apparent, he signed declarations of truth and of understanding his disclosure duties, knowing that he had failed to comply with these obligations alternatively, at best, recklessly. He obscured the role Mr O’Kane had played in preparing his report. On the material available to us, he did not inform the SFO, or the Court, of the limits of his expertise. He strayed into areas in his evidence (in particular, STIR trading) when it was beyond his expertise (or, most charitably, at the outer edge of his expertise) – a matter glaringly revealed by his need to consult Ms Biddle, Mr Zapties and Mr Van Overstraeten. In this regard, he was no more than (in Bingham LJ's words) an “enthusiastic amateur”. He flouted the Judge’s admonition not to discuss his evidence while he was still in the witness box. We take a grave view of Rowe’s conduct; questions of sanction are not for us, so we say no more of sanction but highlight his failings here for the consideration of others.
Biased experts who misunderstand that their role is to help the court rather than to argue their clients’ cases can do more harm than good to their clients’ causes. They waste court time and the parties’ costs; more seriously, they risk injustice.
Conclusions
Expert evidence is prevalent at all levels of licensing. In its true sense, it is given not just by the ostensible “experts”, be they acoustic specialists or licensing consultants (often with a policing background): it comes from officers of police forces, environmental health, licensing, trading standards, and so on. Where evidence of expert of opinion is being given, whoever by, the witness should be aware of, and be complying with the Cresswell Principles.
Compliance with the duties in those principles requires conduct that may seem to be counter-intuitive to some. It includes:
understanding and accepting an overriding duty of helping the tribunal, regardless of whether that might help the “client” (whether that be a paying client or, in the case of a public servant, the body for whom they work);
keeping an open mind - looking at all the facts, not just the “helpful” facts; making provision (including setting aside time) to consider the other evidence in the case, and, if that evidence causes a change in opinion, making that known to those who instruct (or employ) you;
showing the “workings” - explaining how opinions are reached, disclosing underling documents such as photographs and notes, and - if views are subject to qualifications or caveats, saying so;
never assuming the role of advocate for the “client”.
A point often lost is that an expert who sets out to be (and is seen to be) fair and unbiased is far more persuasive than an expert who attempts to put the boot in at any given opportunity. A professional doing his or her best to assist the Court is far more effective than an unregulated “hired gun”.
At the risk of being overly didactic (and at the risk of making petards by which I might be hoisted at some future point) those who instruct, give or face expert evidence would be well advised to consider either paragraph 3 of Practice Direction to CPR Part 35 or CrPR 19.4 as standard by which the format and quality of evidence in question should be judged.
As a specialist field, licensing can suffer from not having the bulk of material that wider disciplines have to work with. The creation of the Institute of Licensing is one way in which the sector has sought to adopt professional standards. Whilst outside the scope of this article, and probably above my pay grade, I wonder whether there is scope for the Institute to be providing training - and possibly qualification and associated regulation - to those who wish to provide expert evidence to committees and courts?
