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).
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.
Those promoting the inquisitorial system’s approach to expert witness will say this case reinforces their argument that experts should always be appointed by courts or tribunals.
Experts must be seen to be unbiased
From my own experience of long and complex court and arbitration hearings, experts are often required to attend many days of evidence and to work extremely closely with those appointing them and their legal team in order to share their opinions on a broad range of evidence within their expertise. One consequence of such a close working relationship is that an outside observer could interpreted the familiarity between the expert witness and those appointing them as implying bias. Indeed I have seen expert evidence dismissed by an arbitrator merely because the witness entered, sat with and left with the legal team each day. To the tribunal the expert witness appeared to be a member of the legal team and so an advocate for their client’s case.
In order to avoid even the appearance of bias the cautious expert should remain slightly aloof from the party that appointed them. This could include even entering the tribunal room separately and throughout the hearings sitting slightly apart from the party that appointed them. Perhaps they should even go as far as to stay in different hotels and have their meals separately? All this should be designed to reassure the tribunal that the expert was approaching the work and evidence with total impartiality.
Why not share your experiences?
If readers have come across other examples of expert evidence being excluded for small indiscretions, and how this appearance of bias can be avoided, I would like to hear about them and the consequences for the case. Please drop me a line. I look forward to hearing from you.
27 May 2019