Friday, 15 April 2016

Expert Witness : Water Engineering: Scottish Law and the Status of the Expert Witness

I picked up a new expert witness instruction for a commercial dispute to do with sewage sludge handling in Scotland this week.

The Scottish courts seem less bothered about written reports with signed statements of truth than the English courts, (preferring oral evidence) but the main difference seems to be the uncertainty about the status of the expert.

I used to live in Scotland, so I knew that their law was different, but I was surprised to find that the status of the expert witness in Scottish courts is in continuing dispute. There has been a lot of commentary recently about the examination of the role of the expert witness in Scottish courts in the case of Kennedy vs Cordia.

In essence, the court had originally ruled on the basis of accepting expert evidence from a consulting engineer, a Mr. Lenford Greasly (many internet sources mis-spell his name Greasley).

On appeal, it was held that the expert's evidence in this case was not admissible, as it did not meet the specific criteria for evidence to be considered as ‘expert’ and was rather "nothing more than what a reasonably inquisitive and intelligent person might have discovered by, for example, looking material up on the internet.” In other words, the court considered there to be no such thing as an expert in Health and Safety at work.

The court wrote that “if the opinion of a witness is not based on the principles of some recognised branch of knowledge in which he has particular experience and expertise, it is useless ‘expert’ evidence and should be held inadmissible.” As the court’s initial decision was based on the expert's evidence, their conclusions were not considered to have been substantiated.

Recently this case went on appeal to the United Kingdom's Supreme Court, who reversed the decision of the Scottish appeal court, and found that the expert did in fact have relevant qualifications and experience, and was therefore properly treated as a "skilled witness" offering expert evidence.

The important factors in determining whether skilled (expert) witness evidence may be offered in Scottish courts are:  (1) whether the proposed skilled evidence will assist the court in its task; (2) whether the witness has the necessary knowledge and expertise; (3) whether the witness is impartial in their presentation and assessment of the evidence and (4) whether there is a reliable body of knowledge or experience to underpin their evidence.

Blogs and other public discussions amongst lawyers since this ruling mostly express the view that the status of expert witnesses in Scotland is now rather clearer than it was previously. Scottish courts still do not however have any equivalent of the English CPR Rules whose Part 35 sets out clearly the way an expert witness should serve the court.

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