Experts who aren't always experts

An exploration of the role of expert witnesses

by Gavin Pearson

In this article, Gavin Pearson, a partner in our Forensic Accounting and Investigations Team explores the role of expert witnesses in the light of a number of recent cases.

Expert witnesses of all disciplines are a key part of the legal process in the UK (and often appear in courtroom dramas in TV being cross-examined by over-zealous barristers).

However, over the last few years, a number of cases involving expert witnesses have hit the headlines for all the wrong reasons. Indeed, a number of cases have actually been abandoned due to professionals lacking expertise or independence.

Naturally, this brings us to the questions of how and why is this happening, and what can be done to improve things in the future?

What’s the role of an expert witness?

Well, let’s start by working backwards and exploring the role of an expert witness.

In contrast to witnesses of fact, expert witnesses can usually provide their opinion evidence within their expertise. They can appear in civil or criminal legal proceedings and whilst they are usually instructed by one party, an expert witness has a duty to the court or tribunal and needs to provide an impartial opinion on particular aspects within their expertise which are in dispute.

Whilst there are no rules which specifically outline who can and can’t be an expert witness, it is made clear that they should have significant knowledge or experience in a particular field or discipline beyond that of a layperson.

What skills are needed to be an expert witness?

To act as an expert witness, a person needs two main things.

Firstly, they need to clearly demonstrate that they have the required expertise in both their general field, but also, relevant knowledge and experience to address case-specific questions. Just because someone is an expert in a generic area, it doesn’t automatically follow that they are appropriate to act as an expert in all specific areas.

Secondly, they need have a deep understanding of their role, be clear on their duty to the court and the independence from the parties involved. This requires an understanding of the legal framework within which they operate, in particular, the procedure rules governing expert evidence.

Needless to say, there are also more practical skills required to be a successful expert witness, such as the ability to present complex issues in an easily comprehensible way a judge or jury can understand. They must also have the ability to provide robust but independent evidence under cross-examination.

What happens when it doesn’t go to plan?

There have been a number of recent instances where, experience, expertise or independence of expert witnesses have been found to be significantly lacking.

One such example is the case of Andrew Ager, who had been hired by the prosecution team in a trial of eight men who were accused of carbon credit fraud totalling £7 million. The prosecution team were unable to provide evidence against the defendants and ultimately, it was revealed that Mr Ager had: no relevant academic qualifications; not read anything on carbon credits; cut and pasted the same evidence for different cases and; made no notes on his workings, amongst other things. He did not understand the duties of an expert witness, or requirements in relation to disclosure of documents and the judge said that he provided a “wholly misleading” statement to the police. In addition, he had attempted to dissuade the other side’s expert from giving evidence as he felt threatened, ignoring his independence as an expert witness and instead focusing on his own career.

Prior to this, and rather embarrassingly for the Serious Fraud Office (SFO), a banking expert called Saul Rowe whom they instructed to act as expert witness, was also found to have significantly failed to understand and comply with his basic duties as an expert witness. Described as an “embarrassing debacle” by the Court of Appeal, it was found that he had limited experience and admitted to sending texts to colleagues during breaks to supplement his own knowledge, meaning his knowledge had “significant failings”.

As if these cases aren’t enough to demonstrate the importance of choosing an expert witness that is suitably qualified and experienced, a very recent case saw the significant failure of a doctor to provide accurate information in court as well as acknowledging his mistakes. He made £350,000 a year from writing 5,000 reports and produced two versions of a report for one particular claim; the only reason this came to light was because it was mistakenly included in the trial pack.

Perhaps the most black and white example of all, is the recent matter of Van Oord where a judge found one of the expert witnesses to be lacking in no less than 12 respects, concluding that his evidence was “entirely worthless”. It is almost comical that the expert witness actually left the witness box for a break mid-way through his evidence never to return.

How can situations like these be avoided in the future?

Failing to instruct a suitably experienced and qualified expert can have a very significant impact on the outcome of cases.

When instructing an expert witness, it is therefore imperative to ensure that:

  • They do not have any conflicts of interest
  •  They have the necessary academic and professional qualifications
  •  Their experience is relevant to the specific matter
  • They understand their responsibilities as an independent expert (preferably through having experience of having done this before)
  • They fully understand the legal framework in which they are working and their role within it

How can we help you?

At Quantuma, our Forensic Accounting and Expert Witness Team is led by highly-experienced partners who are fellows of the Institute of the Chartered Accountants and each has extensive experience in acting as expert witness and giving evidence under cross-examination. Their opinions have regularly been accepted by judges and their evidence praised in judgments.

Our reports are robust, credible and able to withstand scrutiny. On the occasions where we do feel that evidence does not support a case, we will always advise those instructing us at the earliest opportunity.

We are always happy to discuss potential civil and criminal instructions on a ‘no obligation basis’.

Speak to us today to find out how we can help you.