In the recent judgment of Mr Justice Fraser in Imperial Chemical Industries Limited v Merit Merrell Technology Limited there were several interesting points raised with regards to expert evidence.
Expert Evidence – Imperial Chemical Industries Limited v Merit Merrell Technology Limited
Firstly, and most strikingly, Mr Justice Fraser was highly critical of all four experts that were called by Imperial Chemical Industries Limited for their lack of independence. They were experienced and well qualified experts but were subject to considerable criticism for the following:
- Adding new sections to a joint expert statement without consulting with the opposing expert;
- Basing their report on one version of disputed facts which were yet to be determined by the Court;
- Failure to share new documents with the opposing expert;
- Failure to give sufficient attention to their duty to the Court as an independent expert; and
- Provision of witness evidence in support of an interim application.
In another recent case of BDW Trading Limited v Integral Geotechnique (Wales) Limited, His Honour Judge Davies was very critical of an expert who consulted with his instructing solicitors in relation to the content of an expert’s joint statement.
It is crucial that experts maintain their independence when instructed to provide reports and evidence in civil cases. It is clear that Judges are not fooled by partisan attempts to support the instructing party and to do so is more likely to prejudice their client’s claim, rather than support it.
Mr Justice Fraser concluded his comments on the expert evidence in Imperial Chemical Industries Limited v Merit Merrell Technology Limited by providing a list of requirements that an expert must meet to comply with the requirements of the Civil Procedure Rules and provided this warning:
“There are some jurisdictions where partisan expert evidence is the norm. For the avoidance of any doubt, this jurisdiction is not one of them. Not only experts, but the legal advisers who instruct them, should take very careful note of the principles which govern expert evidence.”
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