Be careful that your expert is indeed that!

iangunn Jan 9th, 2020

Andrew Ager was hired by the prosecution in a fraud case concerning carbon credits. The trial collapsed earlier this year when Mr Ager admitted under cross examination that he had never read a book on carbon credits and could not remember if he had passed his A-levels.

This stirred Sir Martin Spencer, now a member of the judiciary, in his role as chair of the Expert Witness Institute (EWI), to make the following comment:

“At present, anyone can put themselves forward as an expert witness, and this case illustrates the potential dire consequences. The outcome of this trial highlights the importance of ensuring that instructing bodies such as the Crown Prosecution Service select expert witnesses who are appropriately qualified and experienced.”

(The Law Society Gazette 30 May 2019)

It also triggered a move to establish a certification scheme for expert witnesses, run by the EWI in conjunction with the Judicial Institute at University College, London.

This is nothing new and it is just one example where an expert witness turns out (at trial, when it is too late) to be nothing of the sort. A recent example was received in a letter from instructing solicitors, engaging me as a financial expert.

An expert in my discipline had already provided a report, but had subsequently changed employer. The solicitor tracked him down to the new employer to advise him of the court timetable, but it seems the expert had left his expertise behind and was no longer willing to act. It turned out on further investigation that the ‘expert’ had simply signed off a report that had been prepared by others, as if it were his own. Given this is a ‘live’ case and the sensitivities over trying to change experts, I am not presently naming the firm or the individual. Otherwise, I would have no hesitation in doing so. Presumably there will be other solicitors in the same boat who may also have an interest in this.

Expertise stems from thorough knowledge of a subject, the possession of appropriate professional qualifications and (in most cases) membership of a relevant professional body. By definition, expertise is specific to an individual. Whilst expert witness training and qualification may enhance the standard and consistency of expert evidence, but it does not fundamentally create expertise. An individual either has it or not. Plainly, in this shocking example, the expert was not in possession of expertise, otherwise he could have continued to act.

Under the (CPR) PD35 protocol for expert witnesses, others may carry out tests or experiments etc providing they are named in the expert’s report and their qualifications are set out. Simply acting as cipher is a blatant breach of the rules.

I could not therefore agree more strongly with the words of Sir Martin Spencer.