DR – WS1 Pre Action Steps TIFF LIAO
Chapter 12.3.1 Duty of an Expert Page 232
12.3.1 THE DUTY
OF AN EXPERT
- r 35.3 makes it clear that the duty of an expert is to help the court on the matters within their expertise, and this duty OVERRIEDS
any obligation to the person from whom they have received instructions or by whom they are paid.
- If the expert is unsure of the nature of these obligations = may file a request for directions from the court.
- Experts should, therefore, be completely objective and unbiased in the way in which they provide their opinion for the benefit of
the court
- Likewise, it is NOT for an expert to comment on issues concerning the credibility of a party or the reliability of a party’s evidence
- Payment of the expert’s fee on a conditional or contingency fee basis might call into question the independence and impartiality
of the expert.
In Gardiner and Theobald LLP v Jackson (Valuation Officer) [2018] UKUT 253 (LC), a case concerning rating valuations, the expert
was NOT paid on a conditional fee basis but their firm was entitled to a ‘success-related fee’ if the firm secured a reduction in
liability for rates on the properties. This gave rise to concerns about independence, as in the judge’s view it gave the expert a
‘direct financial interest’ in the assessment of rateable value.
- An expert is NOT disqualified by the fact of being employed by one of the parties
the court will need to be satisfied that the expert was sufficiently aware of their responsibilities to the court (Field v Leeds
City Council [2000] 1 EGLR 54).
Given the risk of the appearance of bias, parties will generally prefer to instruct an expert who is independent. See also
Proton Energy Group SA v Orlen Lietuva [2013] EWHC 2872 (Comm).
- An expert who behaves improperly is likely to be reported to their governing body by the trial judge at the end of the hearing, as
suggested in Pearce v Ove Arup Partnership [2001] LTL, 8 November and Meadow v General Medical Council [2006] EWCA Civ
1390.
- If an expert’s behaviour demonstrates a flagrant or reckless disregard of their duty to the court and thereby wastes the costs of
the opposing party, the expert may be ordered to contribute towards payment of those costs (see Robinson v Liverpool
University Hospitals NHS Trust [2023] EWHC 21 (KB)).
- An expert who deliberately or recklessly makes a false statement in their report is likely receive a custodial sentence for being in
contempt of court (Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 39).
- Note also that a party may sue their own expert in negligence: see Jones v Kaney [2011] UKSC 13.
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TIFF LIAO
Chapter 12.3.1 Duty of an Expert Page 232
12.3.1 THE DUTY
OF AN EXPERT
- r 35.3 makes it clear that the duty of an expert is to help the court on the matters within their expertise, and this duty OVERRIEDS
any obligation to the person from whom they have received instructions or by whom they are paid.
- If the expert is unsure of the nature of these obligations = may file a request for directions from the court.
- Experts should, therefore, be completely objective and unbiased in the way in which they provide their opinion for the benefit of
the court
- Likewise, it is NOT for an expert to comment on issues concerning the credibility of a party or the reliability of a party’s evidence
- Payment of the expert’s fee on a conditional or contingency fee basis might call into question the independence and impartiality
of the expert.
In Gardiner and Theobald LLP v Jackson (Valuation Officer) [2018] UKUT 253 (LC), a case concerning rating valuations, the expert
was NOT paid on a conditional fee basis but their firm was entitled to a ‘success-related fee’ if the firm secured a reduction in
liability for rates on the properties. This gave rise to concerns about independence, as in the judge’s view it gave the expert a
‘direct financial interest’ in the assessment of rateable value.
- An expert is NOT disqualified by the fact of being employed by one of the parties
the court will need to be satisfied that the expert was sufficiently aware of their responsibilities to the court (Field v Leeds
City Council [2000] 1 EGLR 54).
Given the risk of the appearance of bias, parties will generally prefer to instruct an expert who is independent. See also
Proton Energy Group SA v Orlen Lietuva [2013] EWHC 2872 (Comm).
- An expert who behaves improperly is likely to be reported to their governing body by the trial judge at the end of the hearing, as
suggested in Pearce v Ove Arup Partnership [2001] LTL, 8 November and Meadow v General Medical Council [2006] EWCA Civ
1390.
- If an expert’s behaviour demonstrates a flagrant or reckless disregard of their duty to the court and thereby wastes the costs of
the opposing party, the expert may be ordered to contribute towards payment of those costs (see Robinson v Liverpool
University Hospitals NHS Trust [2023] EWHC 21 (KB)).
- An expert who deliberately or recklessly makes a false statement in their report is likely receive a custodial sentence for being in
contempt of court (Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 39).
- Note also that a party may sue their own expert in negligence: see Jones v Kaney [2011] UKSC 13.
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TIFF LIAO
