12/12/2018 - Expert witness had not broken rule or protocol of offering partisan evidence.

UK: It is no secret expert witnesses must provide independent unbiased opinions in court and it would be a flaw of duty for legal advisers to get involved in drafting expert witness statements. Nevertheless, in a recent case a judge ruled that an expert witness, accused of being a "hired gun" who was willing to change his statement to suit the solicitor's needs, had not broken rule or protocol of offering partisan evidence.

The case was with regards a dispute about the risks of land purchased by a house builder being contaminated with asbestos. One of the expert witnesses, Dr David Tonks was asked to prepare a joint report of experts. He was well qualified for the role as a consulting engineer, specialising in geotechnical engineering. He also had a long experience in acting as an expert witness.

In court Dr Tonks was asked about the preparation of his joint statement. He said that he had sent a draft to the defendant's solicitors and had made some changes due to their comments.

The claimant's solicitor complained that this was a breach of the Technology & Construction Court's (TCC) practice guide. It states legal advisers can only answer experts' questions on points of law and must not intervene in the preparation of the statement.

His Honour Judge Stephen Davies agreed that it was a 'serious transgression'. He said that "Experts should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions apart from to both experts in the very limited circumstances identified in the TCC Guide."

However, the judge rejected the claimant solicitor's charge that Dr Tonks was a 'hired gun'. He accepted Dr Tonks' evidence into the case because it was clear that he had not changed his opinion in the report in any significant way. Judge Davis said that it was plain that Dr Tonks was genuinely unaware that his conduct was inappropriate.

Expert witnesses need to be confident that the courts are satisfied their evidence is completely impartial. Experts giving evidence must take considerable care not to change their statements to suit solicitors" requirements. A collusion would be in breach of court rules.