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Dangers of being a combative Expert

Barrister James Bowling explores what experts can learn from the case of Siegel v Pummell [2015] EWHC 195 (QB).

Mr Siegel had been injured following a collision between his car and that of Mr Pummell. Mr Pummell had accepted liability for the collision, but disputed the quantum of damages claimed. Mr Siegel succeeded in the assessment of damages hearing.

The successful claimant argued that he should be awarded his costs on the indemnity basis (a more favourable basis, where greater costs are likely to be recoverable). The claimant put forward a number of arguments. Those of principal interest to readers were:

  1. The defendant’s expert neuropsychiatrist had made a number of personal and combative attacks on the claimant's expert psychologist.
  2. The defendant’s expert psychiatrist had not cooperated in the joint statement process; and
  3. the way in which the defendant's expert psychiatrist presented his written evidence and gave oral evidence at trial necessitated the court asking him, in the course of his evidence, to provide a written document setting out the gist of his evidence. This in turn meant that one of the claimant’s experts had to be recalled.

The judge criticised the defendant's expert for the way in which he had given evidence. He recorded that, "his evidence was combative and dismissive of that of other medical professionals who were not specialists in the same field as himself," and that it, "was apparent during the trial that there was a degree of animus," between the parties’ respective experts. However, the judge ultimately considered that the points raised by the defendant's expert were points that the defendant was entitled to raise - albeit preferably in a less unpleasant way - and they did not fall so far outside the norm as to attract an award of indemnity costs.

As to the joint statement process, the judge considered the correspondence between the parties and found that while the experts, "were incapable of approaching the exercise in anything like the cooperative spirit which it requires", the solicitors were genuinely trying to advance the process and there was fault on both sides. As a result, he was unwilling to award indemnity costs on this basis either.

However, the judge was more sympathetic to the criticisms of the defendant's expert's evidence itself, as opposed to the way in which it was given. He noted that “the fact that the court was obliged to ask Professor Trimble, in the middle of his evidence, to provide a written statement as to what exactly his evidence was and the basis upon which he was saying [it] … [this] did arise from serious shortcomings in the way in which [he] approached the giving of his evidence.” The judge considered that this was out of the norm, and awarded indemnity costs for the costs of recalling one of the claimant’s witnesses.

Commentary

This case is interesting for two reasons. First, the judge refused to award indemnity costs purely on the basis that an expert was "prickly" to deal with. This is not surprising - although it may be that such a demeanour did his client no favours. Although the high threshold for the award of indemnity costs was not met on this ground, the judge was still highly critical of the expert's lack of cooperation, personal animosity and failure to give clear evidence. Perhaps unsurprisingly however, he drew the line in favour of indemnity costs when presented with expert evidence which was so difficult to follow that it had to be reduced to writing subsequently.

There are a number of points arising from this case:

  1. If you are going to be an expert, concentrate on the issues. Remember you are there to help the judge resolve the issues. Even if you consider that the other side’s expert lacks the necessary level of expertise, the judge is ultimately likely to be far more interested in the underlying issues than the level of qualification of the experts. An expert demonstrates his expertise by doing his best to help the tribunal in a fair, transparent and independent way, not by belittling his opposite number (even if that were otherwise justified).
  2. In the same vein, it is important to cooperate (and be seen to cooperate) with the opposing expert as far as possible. Your role as an expert is to provide an expert opinion and not to act as an advocate for the case of the party who is instructing you. Your evidence is likely to be less persuasive, and a judge is likely to be unimpressed, if you treat questions personally or if it appears that there is animosity between you and your opposing expert. There may be situations in which you are unable to agree with your counterpart experts. Generally it will be far more persuasive to simply and clearly explain your position and why the other side's expert has misunderstood the key issue in your view, rather than attack another expert's qualifications or independence directly. If there is a difference in the level of qualification or competence of experts, this comes out in the evidence anyway through that exposition (and it will come out far more persuasively than a direct attack). Evidence, no matter how good, is never enhanced by unpleasantness.
  3. In a different vein, it is essential that you can communicate clearly and forcefully in writing and under cross-examination what your views are. Try to keep everything as simple as possible, and to explain everything to someone who does not have any prior knowledge of your expert subject and you will not go far wrong. Evidently this expert didn't, necessitating a written report after the event. Ultimately, a judge will need to resolve a dispute between two or more views and, if the judge is unable to understand your position, your evidence can fail to pack the punch that it deserves, no matter how great your expertise. It is amazing how many extremely competent experts fail to remember they are writing and speaking for a lay audience (and their reports, and their clients, suffer as a result).
  4. Lastly, it is worth noting that after Jones v Kaney [2011] UKSC 13 that an expert who causes his client to have to bear the cost of recalling a witness because of unclear evidence which had to be reduced to writing will now be exposed to a possible claim from his party for the costs thrown away as a result.

© The Academy of Experts 2015. First published in their journal “The Expert and Dispute Resolver”, spring 2015.

James Bowling, Barrister, 4 Pump Court
Forensic and Expert Witness Group, June 2015