Expert witnesses – the consequences of not getting it right

The Civil Procedure Rules (CPR) state clearly that an expert witness’s overriding duty is to the Court. A recent case (Pearce-v-Ove Arup Partnership Limited – a copyright infringement case) has highlighted the consequences for expert witnesses who fail to fulfil this duty.

In this particular case Jacob J commented that the evidence given by the Claimant's expert witness fell far short of the standards of objectivity required by the Court. So biased and irrational was his "expert" evidence that Jacob J concluded that he had failed to meet his duty to the Court as set out in the Civil Procedure Rules Part 35. Instead, the expert had come to argue the Claimant's case and "any point which might support that case, however flimsy, he took". The expert, an architect in this case, did not stand back and take an objective view. As the expert bore a heavy responsibility for the case ever coming to trial - with its attendant cost, expense and waste of time, Jacob J saw no reason why a Judge who had formed the opinion that an expert had seriously broken his Part 35 duty should not, in an appropriate case, refer the matter to the expert's professional body.

This case clearly sends a warning signal to all litigants and their advisers to ensure that expert evidence complies in all respects with the fundamental and overriding duties set out in the Civil Procedure Rules.

If you have any queries about this case, please contact Nick Beckett by e-mail at nicholas.beckett@cms-cmck.com or by telephone on +44(0)20 7367 2490.