Fri 18 Mar 2016

Expertly handling experts - some further thoughts on Kennedy v Cordia (Services) LLP

The recent case of Kennedy v Cordia (Services) LLP is of great interest to employers because of its discussion of the requirement for employers in relation to risk assessments and the provision of personal protective equipment. 

You can see my colleague Jenny Dickson's comments on these point in her recent article here. However, this case is also of interest for the comments made in relation to the role of expert witnesses.

When the case was first heard on appeal, the Inner House was critical of the approach taken by the Lord Ordinary, and also by some practitioners in relation to experts and their evidence. The Supreme Court was however satisfied that the Lord Ordinary was entitled to allow some of the expert's evidence in this case.  They were persuaded that the expert had the necessary qualifications and experience to provide evidence to the court.  Some of the expert's statements may have appeared to be statements of opinion in relation to the legal duties of Cordia and therefore inadmissible.  However, the Supreme Court was satisfied that an experienced judge would be able to treat these comments appropriately and make up his own mind as to the legal questions before him.

As part of their discussion of the issue of expert evidence in this case, the Supreme Court has set out some quite detailed guidance which should be considered when instructing experts in litigation.  In light of this guidance, we would have suggested that the following questions should be considered before instructing an expert in litigation:

1. Is the use of an expert necessary? 

If the matters on which expert evidence is sought are not contentious, it may be possible to avoid the costs associated with instructing an expert.

2.  What will the expert discuss? 

Admissibility of the expert's evidence is key.  The evidence should be necessary to assist the court with coming to a conclusion.  In addition, the area on which the expert will be giving evidence should be an area in which someone is capable of being classified as an expert, ie, there should be a sufficiently well organised body of knowledge or experience in that area.

3.  Who is right expert?

The individual must have qualifications and experience which are sufficient to persuade the court that they can be classified as an expert and there should be no connections which mean their evidence could be challenged for any lack of independence or impartiality.

4. Is the expert properly briefed? 

In it important to make sure that that the expert is provided with all necessary facts (including the unfavourable ones).  In addition, it is also necessary to check that the expert is aware of their duties to the court prior to giving evidence.

The Supreme Court's decision re-emphasises the importance of carefully selecting expert witnesses, ensuring that you prepare them properly for court and ensuring that, when in court, you (or counsel) take their evidence in the most helpful way. A bad expert or an ill-prepared one can ruin your client's case just as easily as a good expert can see it across the finishing line.

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