Checklist for Expert Witness Concurrent Expert Evidence

Expert Witness Concurrent Expert Evidence
Expert’s giving concurrent expert evidence

I have prepared a checklist for lawyers to consider when instructing experts to give concurrent expert evidence (commonly called “hot tubbing”) in court or at an arbitration. This guidance is based on my experience of giving concurrent expert evidence in arbitrations and in court.

Checklist:

• Always remember – the expert witness’s overriding duty is to assist the court/tribunal with their expertise.

• Draft the expert report in the knowledge that the judge/arbitrator may invite the expert with the apparently superior knowledge or more controversial position to take the lead in presenting the expert evidence.

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Is the Lands Tribunal demanding more persuasive business valuation evidence?

Compensation is payable following compulsory purchase of land and businesses

Major UK infrastructure projects require compensation for compulsory purchase of land and businesses

I recently attended Francis Taylor Building’s annual compulsory purchase legal update seminar.  Richard Glover QC chaired the afternoon seminar and presented the session on business extinguishment compensation, which was a philosophical but highly thought provoking look at the Lands Tribunal’s latest business loss compensation decision, a case in which I gave evidence.   

Filling in the evidential gaps

Intriguingly he started by describing recent research by Peter Carruthers (http://tiny.cc/no-conscious-thought), a Professor of Philosophy, who concludes that judgments, decisions, intentions and goals are not tied to sensory experiences and never figure in working memory or become conscious. Professor Carruthers points out that we only ever recognise our decision-making from what does become conscious, such as visual imagery and the words we hear ourselves say in our heads.  As such, Carruthers concludes that conscious thought, judgment and volition are all illusions.

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Charles Lazarevic appointed Treasurer of the British Friends of Harvard Business School

Charles Lazarevic, appointed Treasurer

We are pleased to announce Charles’ appointment as Treasurer of this charity and to the Investment Committee.  Over the last year he has reorganised the charity’s administration and investments in line with current governance requirements.

This UK registered charity was set up in 1991 to raise scholarship funds to enable less well-off British students to attend HBS as well as to facilitate donations to the School.  

The Charity also recently appointed Sir Harpal Kumar to serve as Chair from 1 January 2020.  He succeeds Sir Bruno Schroder and Sir Cyril Taylor as the two most recent Chairmen.

Currently about 5 scholarships are awarded annually to enable British students with a financial need to attend this world-leading business school, drawn mainly from those working in the UK public or not-for-profit sectors.  The scholarships are awarded in conjunction with the prestigious US-UK Fulbright Commission.  All recipients have to commit to returning to the UK at the end of their 2-years MBA studies to use their knowledge to help grow and develop British institutions and businesses.

Further details are available at: www.bfhbs.org.

High standards of expert evidence support London’s pre-eminence as the global dispute resolution centre

If there was any doubt, the first London International Disputes Week 2019 (#LIDW2019) certainly demonstrated why London is the premier centre for major dispute resolution by showcasing the impressive range of legal and support skills available here. 

My own professional interest as a frequent expert witness on damages was particularly drawn to Mr Justice Roth’s keynote address in the final session of the week on Competition Disputes.  Competition cases require extensive use of expert evidence and Mr Justice Roth’s address set out the tools and sanctions on experts in recent cases such as the three interchange disputes, BCMR, PayTV v Sky Sports and Britned disputes. 

Mr Justice Roth speaking to a room of international lawyers and expert witnesses with an interest in competition disputes
Mr Justice Roth’s Keynote address

Mr Justice Roth, a Justice in the Chancery Division of the High Court of England and Wales and President of the UK Competition Appeal Tribunal described the framework that has evolved in England for securing impartial expert witness evidence, starting from the principles which Mr Justice Cresswell had laid down in his judgment in The Ikarian Reefer ([1993] 2 Lloyd’s Rep. 68 shipping case. 

He mentioned the increasingly common practice of instructing experts to meet before they prepare their first reports to agree the scope and thus avoid addressing irrelevant issues.  He went on to describe how useful the tribunal recently found asking experts to present a “teach-in” at an early stage of the hearing in Britned Development Ltd v ABB [2018] EWHC 2616 (Ch).  This practice will become even more important as Judges conduct more concurrent expert evidence (better known as “hot-tubbing”) sessions, a process he recognised created much more work for Judges but did shortened the overall hearing. 

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Does kissing an expert witness suggest too close a relationship?

Readers will not need reminding that an expert’s duty is to help the court on matters within their expertise and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid (CPR 35.3 and CrPR 33.2).  As one would expect, the expert is required to approach their work with total independence (PD35 2.1). 

The kiss

Kissing the expert witness

Has the expert witness compromised his independence?

This requirement was brought into question at the trial of a Mr Mick Wills at Wellingborough Magistrates Court last year. Having been accused of illegally hunting a fox with dogs, the expert evidence for the prosecution was provided by Professor Stephen Harris, a self-described vulpophile and one of Britain’s leading authorities on foxes and a longstanding opponent of fox hunting.  It was reported to the Judge that a prosecution witness had kissed the expert witness when they met just before court.  When challenged, Professor Harris’s explanation for this behaviour was that he merely knew the lady and had not seen her in 20 years!

Judge Daber’s reaction on being told

On being informed of this incident, Judge Daber took a rather stern view of this incident, concluding that: “If a relationship exists between a proposed expert and the party calling that expert which a reasonable observer might think is evidence of bias, then he must be excluded on the grounds of public policy. Justice must be seen to be done.”

The judge’s response to this rather unusual event should remind experts and those appointing them to take great care to avoid even the appearance of being too close. 

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