Experts reassessed

Expert evidence

Questions regarding the admissibility of expert evidence have been considered by the courts in both a criminal and civil context over recent years. The decision of the Supreme Court in Kennedy v Cordia (Services) [2016] UKSC 6 (10 February 2016) should provide considerable assistance in the latter context and also potentially the former.

Lords Reed and Hodge delivered a joint opinion with which Lady Hale and Lords Wilson and Toulson agreed. Their Lordships observed that the use of expert or skilled evidence had significant benefits for a court determining a dispute. Concerns about an expert having excessive influence over the fact finders, not achieving the impartiality expected, and the court being unable to test the underlying basis for the expert evidence were reduced in cases decided by experienced judges. However, there remained a need to regulate expert evidence.

Four matters required to be addressed: the issue of admissibility; the responsibility to ensure that an expert kept to their role of giving the court useful information; policing the performance of an expert’s duties; and economy in litigation.

Considering admissibility, the court noted that skilled witnesses often gave evidence of fact as well as opinion, for example of their observations. A skilled witness could also provide evidence based on knowledge and experience of the subject matter, including reliance on the published work of others or pooled knowledge from a team of people. Special rules governing admissibility of expert opinion evidence apply also to this latter category. To avoid anecdotal evidence being accepted as expertise, a skilled witness required to provide information as to qualifications, training, experience, and the source of the information relied on if not founded on personal observation and experience. To be admissible, the subject matter of the evidence had to fall within the class of subjects on which expert evidence was permitted, consideration being given to whether a person without instruction or experience would be able to form a sound judgment on the matter without the assistance of skilled witnesses; and to be part of a body of knowledge or experience which was sufficiently organised or recognised to be accepted as reliable. The witness must also have acquired sufficient knowledge of the subject by study or experience.

There were four considerations in determining admissibility. First was whether the skilled evidence would assist the court. If the court could reach a determination on the proven facts unassisted, the expert evidence was unnecessary. However, in considering skilled evidence of fact, this test was not strictly one of necessity, as that could deprive a court of the benefit of an expert who collated and presented the knowledge of others operating in the relevant field. It was necessary to explain the basis of the evidence presented; what carried weight was the reasoning, not the conclusion. The judge did not delegate the determination of the issue to the expert.

The second consideration was whether the witness had the necessary knowledge and experience. When this was established, the witness could draw on the general body of knowledge and understanding. Third was the impartiality of the witness in presentation and assessment – without this the evidence was inadmissible. The duties of an expert included the evidence being the independent product of the expert, being unbiased, detailing the facts or assumptions on which the evidence was based, stating when a matter was outwith their area of expertise and/or there existed insufficient data to found other than a provisional opinion, communicating any change of opinion in light of further information to both court and opponent, and the provision of any photographs, plans, analyses etc, relied on.

The fourth consideration was whether a reliable body of knowledge or experience underpinned the evidence. This depended on the subject matter. If the expert evidence fell within a recognised scientific discipline, a court could easily accept the reliability of the body of knowledge. If otherwise, it was necessary to set up by investigation and evidence the methodology and validity of the knowledge or science.

It fell on legal representatives at first instance to assess admissibility and also ensure the witness was aware of the duties of an expert. They should disclose all relevant factual material to the expert, whether or not supportive of their client. To police the evidence of an expert, the court made reference to case management hearings or objections in the course of the evidential hearing. If no objection was taken, the judge should still test the evidence to ensure the necessary factors were satisfied. To achieve economy in litigation, case management could result in opinions being exchanged, or experts conferring.

In the present case, the court considered that the evidence contained factual matters such as measurements, gradients etc, which were admissible. In addition, information as to prevention or reduction of risks of losing footing, research literature on footwear, HSE guidance, and the practices of public bodies was admissible as it might assist the judge. The judge at first instance had reached his decision in light of the expert opinion, using it to assist the determination of the issue as opposed to delegating the decision to the expert. Evidence of general health and safety practice from an experienced witness on a specific question might result in research being conducted as to reduction or avoidance of risk.

Personal injuries actions

In Wakeford v Advocate General for Scotland [2016] CSOH 4; [2016] GWD 2-27 Lord Boyd was moved to remit an action raised in the Court of Session to the Sheriff Personal Injury Court. The action had been raised just before the privative jurisdiction in the sheriff court was increased, for a sum well below the increased limit. Lord Boyd refused the motion, founding on McIntosh v British Railways Board 1990 SC 338. His Lordship also observed that any remit would give rise to uncertainty and unnecessary expense and delay. The fact that the claim was small and straightforward was not a sufficient basis for remit.

This case clearly may, on one view, have limited application. I wonder, however, if a number of actions might be raised in the Court of Session with the sum sought above the privative jurisdiction limit but in which it can be reasonably argued that the best value is below that level. In light of McIntosh and the observations by Lord Boyd, such actions will remain in the Court of Session. Will McIntosh be revisited?

Citation

The Inner House in McKechnie v Murray [2016] CSIH 4 (15 January 2016) determined that postal citation could only be used to effect service by a person who was entitled to practise as a solicitor. Further, a letter from the defender to the clerk of court prior to decree did not amount to appearance curing the defect in citation: it was attempting to explain why he was unable to defend the action.

Amendment

In Clark v Greater Glasgow Health Board [2015] CSOH 176 (18 December 2015; republished with further opinion [2016] CSOH 24 (4 February 2016)), the pursuer sought damages for medical negligence. While the matter was at avizandum after proof, the pursuer sought to amend in light of the Supreme Court decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11, notwithstanding the triennium and quinquennium had expired. Lord Stewart observed that there was no realistic assessment of the extent of any additional proof or any pre-proof procedure. There was no attempt in the minute to address the issues of prescription and limitation. The averments proposed were criticised as to relevance and specification. While recognising the severity of the pursuer’s injuries, she had had the benefit of experienced legal representatives and had had ample opportunity to prove her claim. If allowed the amendment would result in the matter being litigated of new.

Value of an extract conviction

In Hall-Craggs v The Royal Highland Show and Agricultural Society of Scotland [2016] CSOH 8; [2016] GWD 4-84 Lady Wolffe refused a motion for summary decree. The motion had been based inter alia on an extract conviction under the health and safety legislation. No reference was made to the conviction in the pleadings. Her Ladyship considered that the defenders, by s 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, could endeavour to show that they did not commit the offence which was the subject matter of the conviction. The scope of what they were entitled to prove was commensurate with the whole subject matter of the conviction. Further, the first defenders raised matters in the pleadings which, if established, would amount to a defence to the action.

Family actions

The Inner House in EM v AM [2016] CSIH 2 (13 January 2016) restored the decision of the sheriff in a family action, it having been overturned by the sheriff principal. Their Lordships observed that the weight given to relevant factors was primarily a matter for the court at first instance. The sheriff was perfectly entitled to form an impression of the parties and as a consequence make an assessment of them both which would colour his approach and conclusions. Further, if the sheriff principal was to allow the appeal, the case should have been heard of new when regard was had to the passage of time and the fact that the practicalities of contact were closely linked with the principle of contact. These observations may be of assistance for agents tendering advice regarding the prospects of an appeal.

Expenses

Each decision regarding expenses will depend on the particular facts of that dispute. In referring to Sheriff McGowan’s decision in Gibson v Menzies Aviation (UK) Ltd [2016] SC EDIN 5 (16 December 2015), it is accordingly recognised that the decision is case specific. That said, there are a couple of matters which may be of assistance. It was clear that the defenders’ insurers endeavoured on a number of occasions to obtain information from the pursuer to enable them to value the claim. They had admitted liability. The pursuer had not disclosed the information sought until after the action was raised. The action was raised precipitately when there was no issue of a time limit. Sheriff McGowan determined that the pursuer had not acted reasonably in instituting proceedings. However, there were still a number of imponderables: what offer would have been made and when; and would it have been accepted? At the time the action was raised, some information which the pursuer had sought from the defenders had not been produced and he had been invited to recover the information by a specification. Failure to disclose the information sought by the defenders was unreasonable and deprived them of the opportunity to settle pre-litigation. However, the chance of pre-litigation settlement could not be quantified with any precision and it could not be said that failure to disclose these reports was the sole cause of the litigation. Accordingly the award of expenses to the pursuer was modified by two thirds.

Update

Since the last article, J & E Shepherd v Letley (January article) has been reported at 2016 SLT 31; and Martin and Co (UK) Ltd v Murphy (January, sub nom Martin & Co (UK) v Stenhouse) at 2016 SLT 45.