Julie Hamilton: Avoiding inexpert witnesses
Julie Hamilton comments on the role of the expert witness in the wake of a recent case south of the border.
The recent, high profile collapse of a multimillion pound fraud trial in London highlights the importance of expert evidence. The role of an expert witness should be to provide the court with an opinion on a particular subject based on their experience, knowledge and expertise.
Andrew Ager had been employed as an expert witness by the prosecution in a trial of eight men accused of a £7 million carbon credit fraud. Mr Ager was completely discredited before the court and the accused were cleared. The judge stated: “Andrew Ager is not an expert of suitable calibre. He had little or no understanding of the duties of an expert. He had received no training and attended no courses. He has no academic qualifications. His work has never been peer-reviewed.”
In cross-examination, Mr Ager “couldn’t remember” if he had passed any A-levels. Despite stating that he was fully informed about the carbon credits market, he admitted he had not read any books on the topic, and had made no notes of any workings. He had kept sensitive material provided by the police in a cupboard under the stairs, which had been damaged by a leak. He had also cut and pasted his witness statement from other trials.
Whilst it is not an easy role to act as expert witness, there are basic principles or duties to follow, namely to act in a manner which is:
When instructing an expert witness, you should check their qualifications and examine their CV, including training or experience to provide the specialised evidence. Also check the limit of their expertise – what are they not able to comment on.
Importantly, following a UK Supreme Court case in 2011 (Jones v Kaney), an expert witness can be sued for negligence or dishonesty.
There is now a Code of Practice published by the Law Society of Scotland to assist expert witnesses employed by solicitors and giving clear guidance. Experts must also comply with the code of conduct of any professional body to which they belong. The guide makes it clear that instructions to act as expert witness should only be accepted when the expert is fully qualified to speak on the subject and has the resources to complete the matter within an agreed timeframe.
Expert evidence is often crucial to the success of a case, whether civil or criminal, commercial or personal. Challenges to expert evidence, while not usually as headline grabbing or as disastrous as Mr Ager, crop up in court fairly regularly. MacRoberts’ dispute resolution team works with expert witnesses on a regular basis and are well placed to ensure our clients’ needs are met.
Julie Hamilton is a partner at MacRoberts