Stephanie Hendry | Solicitor

Soofi v. Dykes, 2019 – Guidance on Expert Witnesses

Expert witnesses, unlike other witnesses, can give evidence based on their knowledge and experience of a subject matter. They provide a specialist report analysing the matter in dispute, which can be relied on by the parties in court.

The recent case of Soofi v. Dykes, [2019] CSOH 59 (2nd August 2019) concerned an action heard by the Outer House of the Court of Session, for professional negligence brought by the pursuers against the defender, a retired solicitor in Glasgow. Both sides led evidence from their own expert witness – for the pursuers, Professor Martin, and for the defenders, Mr Reid. The defenders did not lodge as a production a report by Mr Reid, and Lord Doherty provided his comments regarding this anomaly postscript.

Even in an ordinary action, where an expert witness is to give evidence the court expects there to be lodged as a production a report which outlines the terms of the expert’s instructions, his or her qualifications and experience, the material examined, and any skilled opinion or other relevant evidence which he or she proposes to give.

Lord Doherty asked counsel for the defender why a report had not been lodged. It was indicated to the court that, at the time productions had to be lodged, the only report lodged on behalf of the pursuer was a report by Professor Martin, which did not support the broader case pled by the pursuer. When the defender’s agents contacted Professor Martin to obtain a precognition, it transpired that he was not cited to attend the proof. 

Accordingly, since the pursuer was not in a position to lead an expert, it was decided that the defender should not lodge a report prepared by their expert witness.  In fact, the pursuers had not planned to lead the expert witness until they had a change of heart on the afternoon of the first day of the proof (albeit he featured on their list of witnesses). Lord Doherty accepted that, in the particular circumstances, it would be wrong to criticise the defender for not having lodged the expert report.  This is an unusual case and Lord Doherty cautioned postscript that –

I think it important to stress, lest there be any doubt, that the facts here are highly unusual; and that normally where it is proposed that an expert may give evidence a report prepared by the expert should be lodged.

At Jackson Boyd, we deal with expert witnesses daily. We use the 2016 Supreme Court judgement of Kennedy v. Cordia (Services) LLP to work with our clients to identify the appropriate expert with the skills and qualifications that we know will be accepted by the court. The expert must demonstrate to the court that he or she has relevant knowledge or experience to give either factual or opinion evidence.

Where the expert establishes such a knowledge and experience, then he or she can draw on the general body of knowledge and understanding of the relevant expertise. The Supreme Court in Kennedy warned that, if a party produces an expert report that does not comply with the duties recognised of a skilled witness (to be impartial and independent), the court may exclude their evidence as inadmissible. It is crucial therefore that the right expert is instructed in your case. If you are looking to instruct an expert, we will work with you to draft and issue the letter of instruction and help interpret their report.

Stephanie Hendry

Stephanie Hendry

Dispute Resolution Team

'It’s vital that an understanding of the law is not reserved to solicitors. I make a point of explaining to my clients what the law is and how it applies to their case. I involve my clients in its application because it is fundamental that they understand what I am doing and why throughout their case.'

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