Van McKellar | Partner

The Heat is On – Expert Witnesses in the Spotlight and Hot-Tub

Normally a witness in a court action speaks simply to facts within their knowledge. So, to take a relatively common example, a consumer purchases a house and finds defects not disclosed in the Home Report and sues the author of the Home Report.  That consumer can then give evidence to the terms of the Home Report, the defects found and the damage sustained.   But the consumer’s evidence by itself cannot establish fault on the part of the author of the Home Report.  That is because expert evidence is required to prove the necessary lack of skill and care as well as there being a material diminution in property value.  In that example the expert evidence will be that of an experienced surveyor.  That surveyor – acting as an independent expert – or skilled – witness can go further and gives the necessary evidence to establish liability.    Because of their skill and expertise the expert witness can offer an opinion on the facts and give evidence to the relevant standards. Their evidence can turn a case and often can be essential to there being a case to pursue in the first place.

The courts are aware that a substantial industry has been built in this area, with many expert witnesses being instructed by both sides in a litigation, seemingly reducing the litigation to a ‘battle of the experts’ and, as a consequence, the role of the skilled witness is coming under increased judicial scrutiny.

One interesting recent procedural development, formally adopted in English court rules but increasingly being adopted on a case by case basis in Scotland, is that of “hot-tubbing” which is a slang term for the court hearing the opposing parties’ skilled witnesses at the same time. So in the given scenario, and as often is the case, if both parties have instructed surveyors who arrive at different conclusions, both are heard together in the court at trial in a discussion led by the judge which helps the judge test the quality of both witnesses and thereby to reach a decision.  Another development, particularly adopted in the Scottish commercial courts, is the court’s directing that one skilled witness alone is appointed by both parties and that skilled witness’ report alone is before the court in helping determine the parties’ dispute.

But more important substantive points come from a recent Scottish decision regarding expert evidence, being the Supreme Court’s decision in the case of Kennedy v Cordia ([2016] UKSC 6) and from further comments of one of the judges who issued the decision in that case in a recent speech on the subject. The most important of these include the following:-

  • the courts have to decide if the witness’s evidence is admissible; that including in turn their knowledge and experience and independence and impartiality
  • the onus on lawyers and the skilled witness to ensure compliance with their court duties
  • avoiding costs becoming disproportionate (skilled witnesses being expensive)

These judicial directions require to be noted and complied with. They are the useful reinforcements of important points which litigants must bear in mind – skilled witnesses have to be chosen carefully; they must be instructed property and fully; they are not ‘hired guns’; their overall duty is to the court and not their instructing party or solicitor; they must be and be seen to be independent and impartial; and must act accordingly.

Here at Jackson Boyd we have a wealth of experience in dealing with disputes and instructing expert witnesses. For further information please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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