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When even Expert Witnesses in a case can be dismissed from the courtroom

View profile for Sarah Canning
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More often than not when we think of court rooms in conflict we think of that famous court room scene in a Few Good Men between Jack Nicholson and Tom Cruise. Classic “Prosecutor versus the Accused” (American Style). However, in real life, and here in the UK, it may not get as dramatic as Hollywood - but we do have some instances, which stand out just as much.

The Court insists on the reasonable behaviour of all participants in the litigation process, even the party’s experts who are called in to support or verify facts in a case. A failure to conduct the litigation proceedings in a reasonable way can lead to indemnity costs being awarded against the offending party. This can include consorting to contribute to the proceedings for ulterior commercial purposes.

As an illustrative example, I’d share the case of Siegel v Pummell [2015] EWHC 195 (QB). The defendant’s expert was deemed to have approached the case in a combative and dismissive manner. That, in itself, was not grounds for an award of indemnity costs however, Judge Wilkie found the conduct of the said expert when giving oral evidence was so out of the ordinary that it justified the heavier cost award being made.

The expert had been unable to demonstrate to the Court the grounds for his opinion and so the Court took the unusual step of inviting the expert to provide a written statement during the course of his oral evidence as to what exactly his evidence was and the basis upon which he was saying that there were short comings in the claimant’s evidence. When the written statement was produced, the opposing expert had to be recalled to deal with new issues raised. The behaviour of the defendant’s expert was considered outside of the norm.

The case serves as a reminder to claimants and defendants alike that there is an obligation upon even witnesses to act reasonably. A failure for all to do so, could lead to additional costs.

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