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Expert Evidence Dealt with Unsatisfactorily

The Facts

This was a claim and counterclaim over the use of defective materials in building work done on the defendant's property by the claimant. At first instance both parties called expert evidence. The judge, however, came to his own conclusion on the issue, and despite his evidence having been shown to be unsatisfactory in part by the defendant expert's evidence, did not recall the claimant's expert. The defendant's expert was a quantity surveyor and therefore had experience in the issue of costs of putting right work done using defective materials. The claimant's expert had no such experience. The judge nonetheless preferred the claimant's expert's evidence.

The Issue

Whether the judge had unsatisfactorily dealt with the expert evidence at the trial.

The Decision

The Court of Appeal (Mance LJ, Sir Anthony Evans) held that he had dealt with the expert evidence unsatisfactorily. He should have recalled the defendant's expert to answer the concerns he had over his evidence in relation to cost. The matter was remitted for re-trial on the windows issue.

Comment

The choice of a suitable expert who has appropriate expertise and experience, on an issue lies at the heart of this decision. For a judge to prefer one expert's views over another is part of his role in reaching a decision. However, it was illogical to prefer the evidence of one expert with no expertise or experience in a particular matter over that of an expert with expertise and experience in that area - at least without putting his concerns to the expert witness who he had found unconvincing. This case is important in showing that trial judges need to be pro-active in their handling and questioning of expert witnesses particularly when their decision may be based on an assessment of such evidence. Judges cannot merely sit back, listen to the evidence and form an opinion, if, on the face of the relative expertise and experience of the opposing experts on a particular issue, that opinion appears illogical or subjective.