brown gavel and open book on a wooden table of the law in the courtroomClaimants in a multi-million Euro claim have been refused permission to present crucial evidence at a trial after their expert’s ‘lamentable failure’ to follow the correct procedure.

Businessman Alexander Mayr was bringing a breach of duty claim against law firm CMS Cameron McKenna Nabarro Olswang.  Now his legal team has been told that it is not able to present expert evidence at the trial, unless the expert follows the correct procedure.  If this is not done in time “then that is something for which they must take the consequences,” said the judge.

Attempts by Mr Mayr’s legal team to pin the blame on the expert for his failings backfired.  The judge told them that if they had not told the expert that his conduct was unacceptable then “this was itself a serious failing”.

The normal procedure is for expert witnesses for both sides to exchange initial reports and then hold a joint meeting to decide on which points they agree and to identify where they still differ.  The experts are then responsible for producing a joint memorandum for the court.  The aim is to narrow down the points of disagreement which must be considered in court.

In this case Mr Mayr’s expert was asked to prepare expert evidence on the Turkish pharmaceutical industry.  There was a joint meeting between the experts, but this did not lead to any agreement in the joint memorandum.  The claimant’s expert failed to provide a further report in a timely manner, and was described as having thrown the procedure into disarray.

The courts have well recognised procedures for preparing and presenting expert evidence which both parties should follow closely,” said James Burgoyne, Director – Claims & Technical, Brunel Professions.  “Failing to follow these could result in a significant own goal, and perhaps knock on claims against the legal team.”

Reports have been published by the Law Society Gazette, Litigation Futures and Fenwick Elliott.

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