Expert witnesses must provide completely independent opinions in court and it would be a ‘serious transgression’ for legal advisers to get involved in drafting expert witness statements. Nevertheless, in a recent case a judge ruled that an expert witness, accused of being a ‘hired gun’ who was willing to change his statement to suit the solicitor’s needs, had not crossed the line into offering partisan evidence.
The case involved a dispute about the risks of land purchased by a housebuilder being contaminated with asbestos. One of the experts, Dr David Tonks was asked to prepare a joint report of experts. He was well qualified for the role as a consulting engineer, specialising in geotechnical engineering. He also had considerable experience in acting as an expert witness.
In court Dr Tonks was asked about the preparation of his joint statement. He said that he had sent a draft to the defendant’s solicitors and had made some changes because of their comments.
The claimant’s solicitor complained that this was a breach of the Technology & Construction Court’s (TCC) practice guide. This states that legal advisers can only answer experts’ questions on points of law and must not intervene in the preparation of the statement.
His Honour Judge Stephen Davies agreed that it was a serious transgression. He said that “Experts should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide.”
However, the judge rejected the claimant solicitor’s charge that Dr Tonks was a ‘hired gun’. He accepted Dr Tonks evidence into the case because it was clear that he had not changed his opinion in the report in any significant way. Judge Davis said that it was plain that Dr Tonks was genuinely unaware that his conduct was inappropriate.
“The courts need to be confident that expert witnesses’ evidence is completely impartial,” said James Burgoyne, Director – Claims & Technical, Brunel Professions. “Any professional who acts as an expert witness must take great care to avoid making changes to their evidence to suit solicitors’ requirements. Both the expert and legal adviser would be in breach of court rules if they colluded.”
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