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16 Mar 2023

Excluding expert evidence - a question for trial? (Fawcett v TUI)

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In Fawcett & Ors v TUI UK Ltd, the High Court rejected an application to exclude expert evidence, holding that challenges to the expert's expertise and impartiality were best considered at trial. While the court has a discretion to exclude or revoke permission for expert evidence for serious breaches of CPR 35, this case suggests that the circumstances in which it will do so on an interim application are limited. The court found the application to exclude for alleged bias to be 'fundamentally misconceived' in the absence of oral evidence. It also judged the challenge to the expert's level of expertise to be 'too forensically ambitious and unpragmatic', given the relatively low threshold an expert has to meet.

Practical implications

This case will be of interest to practitioners considering making or defending challenges to expert evidence before trial. It clarifies the extent to which challenges to an expert's expertise and impartiality can be assessed at an interim hearing at all, and the high threshold required for exclusion.

Expertise

  • whether an expert possesses the necessary expertise is a question of fact. However, this is a question that can legitimately be considered at an interim hearing. The burden is on the party wishing to rely upon the expert to satisfy the court that the expert has the necessary expertise
  • an expert can attain the 'necessary' expertise either from relevant experience, relevant qualifications, or by some other means. Acquiring relevant expertise is 'uniquely fact-specific'
  • the bar is not set particularly high for an expert to meet the standard of sufficient expertise (Hoyle v Rogers [2014] EWCA Civ 257). However, 'self-proclamation' as an expert is not enough, there must be solid evidence of sufficient expertise in the relevant discipline or issue
  • provided that an expert appears to have the necessary expertise (for example, from the information provided in their CV), challenges to the precise scope of expertise are likely to go to weight and not admissibility

Expressing opinions outside areas of expertise

  • allegations of over-reaching outside areas of expertise are likely to go to weight and not admissibility and are best considered by a trial judge at trial rather than on an interim basis

Failure to maintain impartiality

  • where an allegation is made impugning the professionalism of a witness, clear and cogent evidence must be provided
  • the courts routinely deal with expert witnesses who express opinions on matters that are ultimately for the court to decide. Such 'overreaching' (if proved) will not, without more, constitute a credible basis to allege witness impropriety
  • redaction or excision of expert reports for 'overreaching' is likely to be more appropriate for a trial judge to consider having reviewed the totality of the evidence

Application generally

  • where an expert's professionalism, expertise and impartiality are challenged on an interim application, the absence of oral or written explanatory evidence from the expert is likely to be 'fatal' to the effective opposition of the application

Background

Mrs Fawcett brought a fatal accident and personal injury claim against TUI UK Ltd in her capacity as administratix of her late husband's estate. The claim was for damages arising out of the tragic death of Mr Fawcett, while on a snorkelling trip on holiday in the Dominican Republic. While the claim was governed by English law, both parties were granted permission for oral expert evidence on 'local standards and Dominican public law'.

Following the filing of a report by Mr Tom Magner on behalf of TUI, Mrs Fawcett applied to exclude the evidence on the grounds that: i) Mr Magner did not have the necessary expertise; and ii) he had failed to maintain his impartiality. In particular, it was alleged that Mr Magner had inappropriately expressed opinions outside the scope of any expertise he may have had and reached inappropriate and unjustifiable conclusions on matters ultimately for the court to decide. It was also alleged that Mr Magner was 'frequently appointed' to provide expert engineering evidence in defence of foreign package holiday claims.

The court's decision

The court rejected all the grounds of challenge and held that the application itself was 'fundamentally misconceived'.

In relation to expertise, the court had to decide the question on the papers and without hearing all the evidence. It held that there was clear evidence that Mr Magner possessed sufficient relevant expertise about the Dominican Republic's standards to satisfy the relatively low threshold of 'necessary expertise'. In this particular case, the court was influenced by the fact that the opposing expert acknowledged that the relevant Dominican standards were relatively limited and that there was not much regulation.

On the allegation of 'overreaching', the court held this was not a basis to exclude Mr Magner's evidence and that it was also not appropriate at an interim hearing to excise or remove any passages from his report. This would be better dealt with by a trial judge in possession of all the evidence.

In relation to the alleged failure to maintain impartiality, the court held that in the circumstances of the case there was insufficient material to sustain such an allegation. If Mr Magner had drawn inappropriate conclusions or got matters 'demonstrably wrong', this would be a matter for the trial judge. The allegation of bias was, in itself, a 'forensic overreach' on the available information.

Therefore, in essence, the court determined that these types of challenge were best dealt with at trial where the credibility of the respective experts and the weight of their evidence can be properly tested. It will be rare for these matters to be determined on an interim basis.

This article was first published by Lexis®PSL.

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