Independent Experts: Lessons From The Courts

Over the past few years there have been a number of cases in the TCC, and the courts generally, which provide useful guidance for those seeking to deploy expert evidence in TCC proceedings.1 Some of them provide a devastating critique of what an expert should not do when he finally takes the stand. Others provide some useful lessons learned that can be taken into account from the early stages of proceedings, including when you are first deciding whether to instruct an expert.

In this Insight we review some of these key cases on experts in recent years and ask what lessons can be learned from them. Before doing this we first look at the rules as to when expert evidence will be allowed in TCC proceedings.

When will expert evidence be allowed?

The Civil Procedural Rules provide that the Court's permission is required for expert evidence to be adduced in proceedings.2 Expert evidence must also be restricted to that which is "reasonably required to resolve proceedings".3 The TCC Guide underlines the requirement for the "effective and proportionate" use of experts. At pre-action protocol stage and throughout court proceedings, it is therefore important to have in mind whether the Court will allow expert evidence to be adduced in the first place.

The case of British Airways v Spencer4 provides for a three-stage test as follows:

Is expert evidence necessary to resolve an issue? If not necessary, would it assist the court in resolving an issue? In the context of proceedings as a whole, is it reasonably required? It is worth thinking through how to justify your answers to these questions at an early stage in proceedings. Whilst the TCC generally has a more pragmatic approach to expert evidence than some other courts, permission can still be refused.

Whilst not a TCC case, Darby Properties Limited v Lloyds Bank Plc5 provides a useful example of when permission for expert evidence may be refused. That case involved complex interest rate derivative products. Whilst the Judge considered a tutorial from an expert as to how these products worked would be useful, he ultimately considered the questions in the case were factual. Accordingly the questions at the heart of the claims could be dealt with by factual evidence rather than expert evidence itself.

Expert shopping

Expert shopping (where a party decides to change to an expert with a viewpoint more favourable to their position) is prohibited by the courts. In Vasiliou v Hajigeorgiou6 the Court stated:

"Expert shopping is undesirable and wherever possible, the court will exercise its powers to prevent it . . . if a party seeks the court's permission to rely on a substitute expert, it will be required to waive privilege in the first expert's report as a condition of being permitted to do so." [Emphasis added]

A number of recent cases have provided a reminder of the consequences of "expert shopping" and, indeed, simply having to swap experts because they prove unable to...

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