9/9/2023 0 Comments Quotexpert witness retention![]() ![]() The Claimant should not be expected to engage in the time consuming detective work, the output of which might be incomplete or inaccurate, in order to ascertain the full picture bearing on Dr Molyneux’s independence as an expert witness. The Defendant knew the details it is both fair and economical that the Defendant should disclose them. In my view, the burden was fairly and squarely on the Defendant, in particular on Dr Molyneux who was to be the Defendant’s key (in the event, sole) expert witness at the trial, to state frankly, with adequate particulars, the nature and extent of any connection between Dr Barker and Dr Molyneux. Mr Angus McCullough QC, on behalf of the Defendant, suggested that the respective CV’s should have put the Claimant, or at least her legal representatives and proposed experts, on notice that there was likely to have been some sort of connection, and that they ought then to have pursued the matter with the Defendant. In the EXP case Mr Justice Kenneth Parker roundly rejected a submission that it was the job of the claimant to notice, and enquire, about professional relationships. THERE IS NO OBLIGATION ON THE OPPOSING PARTY TO SEARCH THIS CONFLICT OUT ![]() Despite the order made the defendant’s expert failed to disclose a long-standing and professional relationship with one of the defendants, omitting joint-papers they had written together from his c.v. The EXP case is probably the best example of the dangers. Further it is common for court orders to require experts to disclose conflicts, so in the case of EXP -v- Barker EWHC 1289 (QB) the court order, granting permission to call experts, included an order: “Experts will, at the time of producing their reports, incorporate details of any employment or activity which raises a possible conflict of interest.”” IT IS HIGHLY UNWISE, HOWEVER, TO FAIL TO DISCLOSE ANY RELATIONSHIP Many of the professional guides to expert witnesses impose such an obligation. However neither CPR 32 or the related Practice Direction imposes an express duty on an expert to disclose that they were known to a party beforehand. If there is a previous course of dealing between the instructing party and the expert ensure that this is disclosed in full.ĬPR 35.3(2) makes it clear that the expert’s duty to the court overrides any obligation to the person from whom experts have received instructions or by whom they are paid.Ensure that, when an expert is in fact independent and is fully aware of the role of an expert.Even if the evidence is admitted the credibility of the expert is badly damages.A failure to do this could lead to evidence being inadmissible.The duty is on a party calling an expert (and the expert themselves) to disclose whether they have any relationship with the party calling them.However, there would be a potential conflict of interest which would need to be disclosed (see below for the duty of disclosure).” KEY POINTS That largesse would not mean that a state of actual conflict of interest existed between the solicitor and the expert. However, the previous summer, as part of her firm’s marketing strategy, the solicitor had taken the expert to Wimbledon for the day with full hospitality. ![]() Here, a solicitor wishes to instruct a top expert in a piece of litigation. “ “Let me to give another example of a potential, as opposed to an actual, conflict. Surprisingly, there is no explicit reference to this either in the rules or the Practice Directions. This is notwithstanding that in Toth v Jarman EWCA Civ 1028 at the Court of Appeal suggested that the Civil Procedure Rule Committee should amend the standard terms of the declaration in an expert’s report to state that the expert has not left undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the court’s decision. “The obligation to give an unbiased opinion plainly carries with it the obligation to disclose any actual or potential conflicts of interest. This is a point that has appeared in many cases in recent years. Part of that judgment dealt with the duties of experts to disclose an interest they have in the case. An earlier post looked at the decision of Mr Justice Mostyn in Bux v The General Medical Council EWHC 762. ![]()
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