Expert witness evidence aids London’s pre-eminence
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. The conference showcasing the impressive range of legal and support services (such as expert witness evidence) 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, 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 ( 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  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.
At this point it is worth quoting from The Honourable Mr Justice Marcus Smith’s Judgment following the costs hearing in the Britned case, where he observed that:
“the interchange between the experts and the battle between their different approaches, I found (as I hope the Judgment makes clear) incredibly useful. I do not consider that I would have been able to reach so clear a conclusion regarding Mr Biro’s approach had I not had the benefit of understanding why Dr Jenkins’ approach was flawed. The manner in which the experts’ views were tested in the crucible of cross-examination was very helpful indeed.”
In Mr Justice Roth’s view these developments, when combined with the courts willingness to criticise experts in their public judgments (as demonstrated above) and, in extreme cases to report them to their professional body, are a sufficient threat to ensure that experts present evidence impartially.
He also mentioned developments in tailored proportional disclosure rather than simply mechanically applying standard disclosure, which include using Redfern Schedules and Scott Schedules, such as in the air cargo anticompetition case. He also referred to new ways of assessing aggregate damages and their distribution in collective actions, which shows how London’s courts are responding to the changing nature of large-scale litigation.
Mr Justice Roth closed by suggesting these strengths means that Brexit will not make London any less attractive as a place for settling major international disputes, in spite of attempts by other countries to attract business by setting up English speaking courts.
Having acted as an expert since before the Woolf reforms in 1999, I have seen these rules gradually develop thanks to various working parties and committees of practitioners. I share Mr Justice Roth’s opinion that London has a comprehensive set of tools designed to ensure that courts and tribunals can rely on robust and impartial expert evidence.
31 May 2019