The use of
expert evidence in litigation is regulated strictly by the court once
proceedings are issued: Permission is needed before expert evidence can be
relied upon by any party to an action. Experts may be instructed by one
party or jointly by all. Whether experts are instructed by one party or
by all, their primary duty is to assist the court and that overrides any duty
that the expert may have to those who are instructing or paying him or
her. It is vital that this overriding duty is made very clear to an expert
at the outset of any instruction. The case of Van Oord UK Limited
& Another v Allseas UK Limited (2015) (a construction dispute where the
value of the claim was over £10m) provides a very stark warning of the
consequences of getting it wrong in an extreme case.
The facts are
not important. What is, however, is that the evidence of the Claimant’s
expert on quantum was wholly disregarded by the trial judge, who described it
as being entirely worthless. To reinforce this view the judge proceeded
to set out 12 reasons for this conclusion. These included that the expert
took the Claimant’s pleaded claims at face value, only considered the
Claimant’s witness statement evidence and incorporated documents in his report
that he had not verified. Perhaps the most damning was when, under cross
examination, the expert essentially disowned his own report. The overall
impression was that the expert produced a report based on what he was told to
say, rather than exercising any independent thought and wholly disregarding his
overriding duty.
Where the
court gives each party to litigation permission to rely upon their own expert
it is natural that the expert would do his or her best to support the case of
the party instructing them. While an extreme example, Van Oord clearly
demonstrates there are limits on the extent to which an expert is able to do
this and if the expert does clearly step over the mark the consequences can be
dire.
