Expert Opinions – Yes Men or Gun for Hire?Article Index
Increasingly, I am presented with a so-called expert opinion authored by a mainstream volume provider, favoured by car dealers and finance companies, whose reports are treated as if they were religious dogma.
When, to the gasps of the opposition, I dare to challenge the contents of the opinion, my apparent heresy is met somewhat sententiously with “it’s in accordance with Part 35 CPR so we see no reason to challenge it” as if it were beyond reproach.
Whether or not the instructing party would be quite so zealous had the opinion not been as favourable is another matter, but it does give cause to question the role of an expert and the meaning of Part 35 of Civil Procedure Rules 1998.
Experts are used to assisting the court when the case involves matters on which it does not have the requisite technical or specialist knowledge.
So, as you would expect, experts are required to have suitable academic qualifications and/or extensive practical experience and more “than a general knowledge of the discipline in which they are giving evidence and not be too closely connected with their instructing party.”
This is underlined by Part 35 which confirms their fundamental duty is to provide the court with “objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”
However, a survey carried out by The Times a few years ago stimulated by high profiles cases, revealed a worrying number of experts prepared to be a “hired gun”, that is to say they were willing to give an opinion that helps the side paying them; a serious allegation but nevertheless one which could be allayed through the process of posing written questions to the expert to test the evidence and expose cogent counter-argument.
To some extent, this may be limited or even obviated by the Part 35 requirement which states that “experts should consider all material facts, including those which might detract from their opinions,” in short, play devil’s advocate. Something that the standard question and answer format of many reports simply do not allow.
This brings me back full circle, to the troubling retort “it’s in accordance with Part 35 CPR so we see no reason to challenge it.” This only serves to foster suspicion of bias and undermines the integrity of the process; in my view, this is nowhere more prevalent than in cases concerning finance companies, the Financial Ombudsman and the Motor Ombudsman.
It is true that transgressors will fall foul of a robust cross-examination in litigation, however, this to my mind defeats the object of alternative dispute resolution. Not only this, but it is entirely counter-intuitive, leading businesses into a sense of false security and false economy, where they ultimately pay the price for hiring “yes men”, by way of the other party’s legal costs.
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