Impartiality of Expert Evidence Under Scrutiny

Posted Monday 12th July 2021

Expert evidence may seem like one of the most reliable forms of evidence to be presented as part of court proceedings. However, the recent judgment in Dana UK Axle Ltd v Freudenberg FST GmbH exposes the fact that even this type of evidence is not always unbiased or uninfluenced. In this case – concerning the manufacture and supply of pinion seals – the Technology and Construction Court granted a claimant’s application to have the defendant’s technical expert evidence excluded.

The expert evidence served by the defendant, FST, included a number of defects. Perhaps most importantly it failed to identify key documents and data the experts had relied upon, as well as details of numerous site inspections – the extent of which only became apparent during trial. A significant amount of information had also been provided to FST’s experts but not disclosed to the claimant, Dana. Revised reports were served following an order at the pre-trial review, and FST’s solicitors were additionally ordered to serve a witness statement explaining the site visits and documents provided to the experts by FST’s staff. Dana however maintained its view that the evidence failed to comply with the Civil Procedure Rules and applied to exclude FST’s three experts’ reports.

The claimant’s application was successful on the seventh day of trial, just before the planned start of FST’s experts’ evidence. The judge stated that FST had “interposed itself in the Experts’ reports to such a degree that they cannot confidently be said to be the result of the Experts’ independent analysis” and that the experts had had “unfettered and unsupervised access” to its staff. The judge also criticised FST’s solicitors, claiming they had had “no, or very little oversight” of the dealings between the experts and FST personnel. All of the above naturally called the experts’ independence into question and their evidence was therefore not accepted.

The judgment highlights the fact that the use of expert evidence entails similar risks to regular witness evidence; the experts’ impartiality is not always guaranteed. For this reason, single joint experts should be used wherever possible. Additionally, it is interesting to note that the requirement to include a solicitors’ signed certificate of compliance only exists in the case of witness statements. Adopting the same approach for expert evidence could perhaps remind those instructing the experts that they also share the responsibility for the document’s contents and compliance.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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