29 June 2021 by and Dispute Resolution Alert

Whose expert are you?

“He was rigidly truthful, where the issue concerned only himself. Where it was a case of saving a friend, he was prepared to act in a manner reminiscent of an American expert witness.” P.G Wodehouse.

Expert witnesses are essential to courts facing complex issues whether psychiatry, ballistics, ichthyology, or any other specialist topic beyond the knowledge of the judge. The expert’s foremost ethical duty is to provide the court with an objective opinion, but maintaining objectivity is not easy.

As early as 1873, in the English case of Lord Arbinger v Ashton (1873) 17 LR Eq 358 at 374, the judge remarked that “There is a natural bias to do something serviceable for those who employ… and … remunerate you.”

In 2010, Judge Davis cautioned experts against being hired guns (Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC)) and remarked that “an expert comes to court to give the court the benefit of his… expertise”. The result in Schneider stands as a caution to attorneys not to pressure their experts to provide a particular opinion, or to select experts who will tailor their opinions. The court ordered punitive costs in that matter where the expert was clearly not objective, having been shown to have a vested interest in the outcome to the knowledge of the attorney and counsel. The attorney and counsel were reported to the then Law Society and Bar Council and the expert suffered a blow to his professional reputation.

The Court of Appeal of England and Wales recently considered whether two expert witnesses from the same group of companies can act both for and against the same client (Secretariat Consulting Pte Ltd and other v A Company [2021] EWCA Civ 6, [2021] 4 W.L.R. 20). 

One firm in the Secretariat Group provided a delay expert for a party in an arbitration and another firm in the group provided a quantum expert for the opposition in a second arbitration, relating to the same project. The court agreed that a conflict of interests would arise if the quantum expert in the second arbitration were to testify. Importantly, the appeal court confirmed that an expert’s overriding duty remains to be objective and to avoid any conflict that might impact this.

Our Uniform Rule of Court 36(9A) requires parties as far as possible to appoint a joint expert on any one or more or all of the issues in the case. In that regard, Lord Justice Coulson in Secretariat noted that his judgment doesn’t mean the same expert cannot ever act both for and against the same client. A single expert though would only work where the expert testimony was not contentious, experts only starring in cases where they disagree. The point is not that experts cannot hold different opinions but that they must disagree because of an objectively held opinion, not an opinion formulated to assist the client who has hired them. Easy to say, more difficult to do when an expert is part of the team fighting a case, and where opinions can be nuanced.

Good reputations are earned by experts who place honesty and objectivity above business relationships. Different values are likely to earn them reputations more akin to P.G Wodehouse’s American expert.

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