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Using Expert Witnesses in Court – a Winter’s Warning

Using Expert Witnesses in Court – a Winter’s Warning

Chris Mackay

Using expert witnesses to support your case in court is sometimes essential - and often expensive. The recent Supreme Court decision Kennedy v Cordia has given us very helpful reminders on when, and how, expert witnesses should be used.

The case in question concerned a slip on a snowy footpath by a Glasgow nurse tending the dying. The expert evidence provided to the court concerned her employer's failure to consider the risk of such accidents, and thereby provision to her of protective equipment to mitigate the risk of her falling. Our blog "Scotland's snow: falling on the ground" tells you the full story. However, the court also took the opportunity to issue guidance of wider application on the use of expert or skilled evidence.

When is an expert's evidence admissible in court?

The Supreme Court set out 4 tests but, in essence, it is for the court to decide whether expert evidence is needed when the admissibility of that evidence is challenged.

In some fields, for example the construction field, expert evidence is usually within a recognised scientific discipline such as engineering, architecture, project management or cost consultancy, so it should not be hard to satisfy the court about this and about the reliability of the relevant body of knowledge. If the field is more novel, thought would be required as to whether the court will accept the science.

Who has to make sure that the expert is performing his/her role?

In the first instance the task of managing the expert falls to the solicitors. It is in the client's interest that this happens, for this input should result in an end product, namely expert evidence, which has an increased chance of meeting with the court's favour. The initial management task is to assess whether the expert has the necessary expertise. Next the expert needs to understand clearly the duties upon him or her as an expert witness. This includes acting independently and always stating the facts and assumptions on which their evidence is based. The management task also includes the solicitor, with the co-operation of his client, ensuring that all relevant factual material is disclosed to the expert.

Who will police the performance of the expert's duties?

The Supreme Court highlights the opportunities which case management can provide. It is important for parties/solicitors/counsel to make effective use of case management (which is operated in commercial actions in the Scottish courts and regularly in arbitrations) to discuss concerns about expert evidence.

What about the impact of expert witnesses on the cost of litigation?

There is no doubt that both the court and clients are concerned about the disproportionate cost of civil litigation, including the use of expert witnesses. There are ways to control those costs. It is always more cost effective if certain matters can be agreed in advance of a court hearing, allowing experts then to concentrate on the matters which are truly in dispute. This can be achieved by requiring experts to exchange opinions, and by them then identifying areas of agreement and reasons for continued disagreement.  Alternatively, albeit more rarely, it may be appropriate for parties to jointly instruct a single report. In any event, the court posses powers in relation to expenses which can be used to discourage the excessive use of expert evidence.

So where does this take us?

I regularly instruct expert witnesses and value the important role they can play in resolving disputes. At the same time, I recognise that there can be concerns about the number of experts that are sometimes instructed and, on occasion, the very extensive nature of their reports and evidence. Clear guidance from the Supreme Court on such important matters is therefore to be welcomed.

Chris Mackay is a Law Society of Scotland accredited expert in construction law, also acting in relation to matters of legal professional negligence. He is a member of CIArb's Scottish panel of arbitrators and a Law Society accredited expert in arbitration.