Litigation solicitors comment on expert evidence in court and the role judges in English courts.

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Civil Litigation - Expert Evidence - Court Takes a Serious View

Relevance in Intellectual Property Litigation

Many areas of litigation (both civil and criminal) rely heavily on expert evidence. This is especially so in the area of intellectual property: which encompasses copyright, trade marks, passing off, confidentiality, designs and patents. Even though a fundamental principle of the law of evidence and litigation is that expert witnesses shall not decide the 'ultimate issue' - the question the court must decide - the influence they have on that issue cannot be over-estimated.

Role of the Expert

The import of this is this - whether one accepts it as 'judicially (as opposed to 'politically') correct' or not - experts carry much weight in swaying judges and juries alike in one direction or another. Accordingly, the court is entitled to expect an expert witness to behave responsibly and to fulfil his obligation to the court. The ramification of this is that it is the duty of the expert to assist the court on matters within his expertise and a failure to do so may amount to a serious breach, which the court can take umbrage. Such was the offence taken by Jacob J in Gareth Pearce v Ove Arup Partnership Limited [2001] EWHC dated 2 November 2001, that he imposed the only sanction he could on the expert witness for the plaintiff in that case.

Who Is An Expert?

An expert witness is a witness qualified by skill and experience to give his opinion on matters of science, arts, professional competence, foreign laws or the like. Be that as it may, there is no requirement under English law that a expert witness need be formally qualified in any area or discipline in which he is to express his expert opinion or purports expertise. If the court is satisfied that he is (despite not having formal qualifications) expert, he can give expert evidence. However, these days almost invariable experts would be members of professional bodies.

Gareth Pearce v Ove Arup Partnership Limited

In this case the High Court comprehensively dismissed a claim by the claimant that the world renown architect Rem Koolhaas had plagiarised his design for the Kunsthal in Rotterdam from the claimant. After a trial, Jacob J emphatically concluded as follows:

[This] case has no foundation whatsoever. It is one of pure fantasy - preposterous fantasy at that. The Kunsthal owes nothing to the claimant. I very much doubt that Mr Koolhaas ever saw the claimant's plans.

If this seemed like the end of the judge's clear and unequivocal position in the case, the comments he reserved for the claimant's expert witness were even more far reaching and forthright. He went so far as to say that the expert witness bore a heavy responsibility for the case ever coming to trial - with its attendant cost, expense and waste of time. The upshot of this was that the witness' conduct was referred to his professional body, the Royal Institute of British Architects (RIBA).

Experts' Duty to the Court

An expert witness has a paramount duty to the court and not to the party retaining the expert. An expert witness has an overriding duty to assist the court on matters relevant to the expert's expertise. An expert witness is not an advocate for a party to a proceeding. In Gareth Pearce v Ove Arup Partnership Limited, Jacob J said that the job of the expert was really to give reasons for his opinion. As a practical matter a well constructed expert's report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up, the opinion does, if not, not.

The Blunders of the Expert Witness

However, he found that the claimant's expert witness hardly gave any reason for his opinion on the ultimate question beyond pointing out similarities. That is hardly a matter of architectural expertise. His findings just appeared to favour the claimant. So the judge found that the witness' "expert" evidence fell far short of the standards of objectivity required of an expert witness. He claimed to have appreciated the seriousness of what he was saying but made blunder after blunder and the judge listed a number of them.

As a result, he concluded that the expert was so biased and irrational that in giving such "expert" evidence he failed in his duty to the court, which provides (under the Civil Procedure Rules (CPR) Part 35 rule 35.3) that:

It is the duty of an expert to help the court on the matters within his expertise
This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

What Action Can Be Taken Against an Expert?

As to what action can be taken against an expert who breaches his duty to the court, Jacob J uncompromisingly concluded as follows:

'Now there is no rule providing for specific sanctions where an expert witness is in breach of his Part 35 duty. Nor is there any system of accreditation of expert witnesses such as is proposed by Lord Justice Auld for forensic scientists (see paras. 129 -131 of his Review of the Criminal Courts of England and Wales, October 2001). So there is no specific accrediting body to whose attention a breach of the duty can be drawn. Most (but not all) expert witnesses, however, belong to some form of professional body or institute. I see no reason why a judge who has formed the opinion that an expert had seriously broken his Part 35 duty should not, in an appropriate case, refer the matter to the expert's professional body if he or she has one. Whether there is a breach of the expert's professional rules and if so what sanction is appropriate would be a matter for the body concerned. Prima facie, therefore, I consider it necessary to refer the [expert witness'] conduct to his professional body, the RIBA. '

Conclusion

The judgment of Jacob J in this case shows in no uncertain terms that the courts take a very serious view of expert evidence and any expert who appears for a party simply with the view to giving subjective evidence in favour of that party had better think twice. The courts are vigilant over and jealous of the fact that the duty of the expert is to the court and not the party instructing him and any breach of this duty may very easily lead to such an expert being punished in the most suitable way.

NEED TO KNOW MORE ?

For further information on expert evidence, intellectual property rights, dispute resolution services and commercial litigation, contact Maitland Kalton or Julian Danobeitia. Should you prefer to telephone, call us on +44 (0)207 278 1817.

Kaltons Solicitors, Suite 302, Spitfire Studios, 63-71 Collier Street, London, N1 9BE. Telephone +44 (0)20 7278 1817; Fax: +44 (0)207 278 1835.

Technology &Internet Law