Expert witnesses and lawyers: keep to rules

STUART JORDAN* highlights the need to abide by the law when engaging expert witnesses, stressing that any interference by lawyers in drafting and editing their report can have significant cost implications and consequences.

- STUART JORDAN

A RECENT case has reminded us of the need to respect the particular status of expert witnesses and their evidence. As we have observed before, expert witnesses have an overriding duty to assist the court (or arbitral tribunal) impartially on matters within their field of expertise, and not to act as an advocate for their instructing party.

We have looked before at "expert shopping" and the consequences of a party going beyond legitimate grounds for replacing an expert witness. Today, we are covering some of the same ground but also considering the wider dangers of undue involvement by lawyers in the procurement and presentation of expert evidence; including interference by lawyers in the drafting and editing of an expert witness's report.

This case, unusually, is about a domestic construction project, but the principles apply generally. The claimants (Mr and Mrs Glover), the owners of a house, engaged several parties to design and carry out renovation works on it including creating a new basement. Those parties included a structural engineer. Unfortunately, the works caused damage to an adjoining property and to other properties, for which the claimants, of course, were liable. So, the claimants sought recovery of their losses from several of their project team including the contractors and the structural engineers.