At a recent online conference, Lord Hodge - Deputy President of the Supreme Court and EWI President - gave the keynote address, during which he explored the critical role of the expert witness in the administration of justice.
Lord Hodge then gave examples from several cases and on impartiality he cited the case of the ‘Ikarian Reefer’ - in which Mr Justice Cresswell laid out the judicial expectation of the expert witness. This is now codified in England and Wales in practice direction 35, supplementing CPR part 35.
In addition, Lord Hodge went on to offer his own observations, stating that independence and impartiality - whilst appearing to be obvious - was causing concern in some cases. He cited a 2019 survey of expert witnesses in which 25 per cent of respondents stated that they had felt pressurised to change their report in a way that damaged their impartiality.
An expert witness must also be an expert and additionally, whilst undertaking the task, must be aware and competent in their duties to the court and undertake continual critical examination of their own work or opinion.
Lord Hodge stated that clarity of thought and clarity of expression or presentation of the evidence will assist the judge greatly and stressed that it was imperative that expert witnesses take full responsibility throughout the process of preparation and presentation for his or her opinion evidence.
He went on to quote Judge Claire Evans, who had remarked:
“There are plenty not very good experts around. Some soi-disants experts are worse than not very good, they do great harm.”
Lord Hodge then praised specialist organisation and institutions - such as the EWI - for their role in minimising the occurrence of harmful expert witnesses by advocating high standards in expert evidence.
Discussing the part that lawyers and instructing parties played - not just by ascertaining that an expert did possess the necessary expertise and making them aware of their duty to the court - but by ensuring that the expert witness was aware of all the facts of the case, Lord Hodge referred again to the 2019 survey, stating,
“Lawyers must do better. They may obtain useful assistance on best practice on consulting experts in guidance issued by the Civil Justice Council.”
He continued to say that lawyers must improve their scientific and technical literacy to do their job effectively in cases concerning experts and testimony.
Whilst the task of policing compliance with an expert’s duties falls to the court, he said that “judges, lawyers and experts have to face the future together”.
Reflecting on the impact of Covid-19, Lord Hodge stated that he was aware that times had not been good for expert witnesses during the pandemic. He mentioned difficulty in carrying out physical site visits or examinations and the financial impact - either through postponed trials or delays in payment. However, he pointed out that not all consequences of the pandemic were bad. In the words of the Lord Chief Justice, it was “the biggest pilot project the justice system has ever seen.” For example, online filing had been introduced at the Supreme Court and that practice would continue. This would save money and have a positive environmental impact.
Lord Hodge also said that he expected that remote hearings were here to stay - particularly for incidental and case management business and there was scope for more radical changes within the judicial system in the coming years.
He concluded by saying that the conference presented an opportunity to enhance the contribution of expert witnesses and those lawyers who work with them in support of that aim, re-iterating that “judges, lawyers and experts have to face the future together”.
