Category: Experts

Previous expert’s draft report did not have to be disclosed where court had already granted permission to rely on a different expert

20 February, 2019

Where a claimant had already been granted permission to call an expert, and it later came to light that the claimant had previously instructed a different expert, the High Court refused to impose a condition requiring disclosure of the previous… Read more

Permission for expert evidence of financial market practice refused in relation to allegations of dishonesty but granted for other purposes

19 December, 2018

In a recent decision, the High Court refused the defendant financial advisers and agents permission to call expert evidence of financial market practices in relation to an allegation that they had acted dishonestly: Carr v Formation Group Plc [2018] EWHC… Read more

Amended provisions for concurrent expert evidence or “hot-tubbing” now in force

24 November, 2017

Amendments to Practice Direction 35.11, which governs the procedure for concurrent expert evidence, or "hot-tubbing", have now come into force after receiving ministerial sign-off on Tuesday this week. The amendments implement a number of recommendations made by the Civil Justice Council report… Read more

High Court finds expert unreliable and lacking independence

24 July, 2017

A recent High Court decision has highlighted once again the importance of ensuring experts are aware of and comply with their duties to the court. It also demonstrates the potential dangers of repeatedly instructing the same expert and the need… Read more

Previous expert report did not have to be disclosed where change of expert was not “expert shopping”

17 July, 2017

The High Court has found that the defendants in this case did not have to disclose their previous experts' reports as a condition of obtaining permission for an extension of time to enable them to serve a report from a… Read more

New provisions for concurrent expert evidence or “hot-tubbing”

12 July, 2017

The Civil Procedure Rule Committee has approved amendments to Practice Direction 35.11, which governs the procedure for concurrent expert evidence, or "hot-tubbing", which was formally introduced into English civil procedure by the Jackson reforms. The amendments implement a number of… Read more

Court of Appeal confirms importance of frankly disclosing factors that could affect expert’s independence

6 March, 2017

The Court of Appeal has dismissed an appeal against a finding of clinical negligence based, in part, on the trial judge's approach to evaluating expert evidence where a close connection between the defendant and his expert witness had not been… Read more

Expert evidence – the need to engage

15 December, 2016

A recent High Court decision illustrates the need for parties to cooperate in the process of producing expert evidence, to ensure the reports are properly matched and avoid the problem of "ships passing in the night": UPL Europe v Agchemaccess… Read more

Party permitted to change experts on condition it disclosed previous expert’s notes setting out substance of views

7 September, 2016

The Technology and Construction Court has granted a claimant permission to adduce evidence from a new expert, after it became dissatisfied with its original expert's ability to express his views clearly. However, permission was granted subject to the condition that the… Read more

Civil Justice Council report published today on concurrent expert evidence including “hot-tubbing”

1 August, 2016

The Civil Justice Council has today published a report on Concurrent Expert Evidence & ‘Hot-Tubbing’ in English Litigation since the ‘Jackson Reforms’. The report was produced by a working group chaired by Professor Rachael Mulheron of Queen Mary University of… Read more

The price of changing experts: disclosure of privileged report

6 June, 2016

In a recent decision, the Technology and Construction Court granted defendants permission to adduce expert opinion evidence from a second expert, after their first expert had ceased to act, on the condition that the defendants disclose the first expert's draft… Read more

Civil Justice Council working group to review “hot-tubbing” of experts and other topics

23 May, 2016

A CJC working group has been set up to consider and review a series of discrete topics relating to civil litigation, which will ultimately feed into the Ministry of Justice’s Post‐Implementation Review of the Jackson reforms, which is due in… Read more

Article published: Experts have lessons to learn

31 March, 2016

The role of experts in legal proceedings has continued to attract comment in a number of judgments in the English courts over the past year. The decisions provide guidance on a range of issues that arise during an expert’s tenure… Read more

Importance of frank disclosure of factors that could affect expert’s independence

5 June, 2015

A recent High Court decision underlines the burden on a litigating party and its expert witness to state frankly, and with sufficient detail, the nature and extent of any connection that could affect the expert's independence: EXP v Dr Charles… Read more

High Court decision shows some flexibility in test of “good reason” for change of expert

2 July, 2014

The High Court has granted permission to change experts where the claimants' original expert was unwilling to continue, in circumstances where refusing permission was likely to leave the claimants with no effective evidence on a crucial issue: Adams v Allen & Overy [2013] EWHC… Read more

High Court refuses permission for new expert where party delayed in disclosing previous expert’s withdrawal

19 March, 2014

The High Court has held that, in the circumstances of this case, the claimant's failure to disclose its expert's withdrawal from the case for some six months amounted to a serious abuse of the court's process: Clarke v Barclays Bank… Read more

Court may order disclosure of solicitor’s attendance notes recording retiring expert’s opinions where very strong appearance of “expert shopping”

13 November, 2013

In a recent decision the High Court granted the claimants permission to call evidence from a fresh expert on condition that they disclose any reports and documents received from the retiring expert in which he had expressed opinions on the… Read more

Webinar alert: Expert evidence – including a practical look at how to avoid the pitfalls

8 November, 2013

On Wednesday 13 November 2013 (12.45 - 1.45pm GMT) Ann Levin and Michael Mendelblat will deliver a live audio webinar on expert evidence focusing on: Steps needed for giving and obtaining effective expert evidence; Sources of guidance; and Practical suggestions for liaison between… Read more

High Court decisions on admissibility of opinion evidence

4 June, 2013

In two recent decisions, the High Court has considered the circumstances in which opinion evidence contained in third party reports or articles is admissible in civil proceedings. In Rogers v Hoyle [2013] EWHC 1409 (QB), the court had to consider whether… Read more

Commercial Court considers principle that “there is no property in a witness”

16 April, 2013

The Commercial Court has held that it may be a contempt of court for a party to litigation to seek to prevent a witness or potential witness from attending an interview with the opposing solicitor, and this applies to both witnesses… Read more

Court can require disclosure of privileged report even where no change of expert

11 July, 2012

The High Court has considered whether a party should be ordered to disclose a privileged second report prepared by its expert, as a condition of being permitted to rely on that expert's evidence: Odedra v Ball [2012] EWHC 1790 (TCC).… Read more

Permission to change experts only if “good reason”

10 April, 2012

The Court of Appeal has confirmed that permission for a change of expert will only be granted where a party has "good reason" for the change; the mere fact that the expert has altered his view is not enough: Guntrip… Read more

Litigation from a client’s perspective: top tips from the advocacy unit

22 March, 2012

On 21 March Murray Rosen QC, head of Herbert Smith's Advocacy Unit, together with support lawyers Pamela Kiesselbach and David Phillips, presented a webinar entitled 'Litigation from a client's perspective: top tips from the advocacy unit'. Murray, Pamela and David… Read more

Webinar alert – Conducting litigation from the client’s perspective: top tips from the Advocacy Unit

7 March, 2012

On Wednesday 21 March (12:45 to 1:45 UK time) Murray Rosen QC, David Phillips and Pamela Kiesselbach will present a live audio webinar which will provide a practical overview providing tips for clients and in-house counsel on how to approach and conduct litigation, looking at… Read more

Concurrent expert evidence (“hot-tubbing”) recommended as optional procedure

2 February, 2012

An interim report on the Manchester concurrent evidence pilot has concluded that this technique should be available as an optional procedure which can be adopted if the judge so directs (i.e. whether or not the parties agree). The technique, which developed… Read more

Waiver of privilege in draft expert report

21 December, 2011

The High Court has held that a defendant waived privilege in its draft expert report, since it had deployed significant parts of the report in a witness statement served in defence of an application to strike out its counterclaim: ACD… Read more

No injunction against expert who received party’s privileged information

29 November, 2011

A recent High Court decision has re-emphasised the difficulty of challenging an opponent's expert on grounds of the expert's previous receipt of the applicant's privileged and confidential information: A Lloyd's Syndicate v X [2011] EWHC 2487 (Comm). The cases show that mere receipt… Read more

Expert evidence: controlling costs / focusing issues

18 November, 2011

The Civil Procedure Rule Committee has approved an amendment to CPR Part 35 to implement Lord Justice Jackson's recommendation that parties seeking permission for expert evidence should provide the court with an estimate of the costs of that evidence (as… Read more

Jackson reforms: taking stock

9 September, 2011

In addition to the headline reforms which are to be implemented through primary legislation currently before Parliament, progress is ongoing toward the implementation of various other recommendations put forward in Lord Justice Jackson's final report on civil litigation costs and… Read more

Experts remain immune against claims by opposing parties

6 June, 2011

The Supreme Court judgment in Jones v Kaney [2011] UKSC 13, handed down on 30 March 2011, abolished expert witnesses' immunity from suit for professional negligence claims arising from their views or evidence in relation to legal proceedings (see post). In… Read more

Supreme Court abolishes expert immunity

31 March, 2011

The UK Supreme Court yesterday handed down judgment abolishing the immunity expert witnesses have enjoyed for over 400 years. In Jones v Kaney [2011] UKSC 13 the court held, by a majority of 5 to 2, that there is no… Read more

Disclosure of privileged report as condition of changing experts

22 March, 2011

In Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136, the Court of Appeal held that the court could not override privilege in an earlier expert's report, but could and would normally require waiver of the privilege as a condition… Read more

Disallowing expert evidence

22 March, 2011

In Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd [2011] EWHC 474 (Ch), the High Court refused the claimant's challenge to the admissibility of the defendant's expert evidence on grounds of the expert's receipt of the claimant's privileged… Read more

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