Winning Battles and Losing Wars

May 30, 2022

William Waldron QC

A few months ago, I wrote an article highlighting the fact that judges can, for a number of reasons, sometimes be reluctant to make interim payments in cases in which, from a reasonably objective assessment of the facts, a Claimant looks highly likely to win the day at trial.

That was the case in Parry v Johnson ([2022] EWHC 889 (QB)), a claim in which a tractor, towing a piece of agricultural machinery that overhung the verge, collided with a pedestrian who had stood out of the way when he had heard it coming at some speed along a country lane at dusk. To win the interim payment application, the Defendant had placed quite considerable reliance upon an expert report, which suggested that even a careful tractor driver might not have been able to avoid the Claimant in the particular circumstances of the case. Faced with that evidence, the judge declined to grant the application. He did, however, make an order for an expedited trial – perhaps a tell-tale sign that he might not have thought much of the defence, albeit he felt it prevented him from making an interim payment.

The expedited trial took place before Richie J.  in April 2022. It did not end well for the Defendant, who lost outright. The court rejected the defence, declined to make any finding of contributory fault and made observations about the defendant’s accident reconstruction expert, which may not have made comfortable reading for her.

Of course, judges have long warned experts about the need to remember that their overriding duty is to the court, not the party paying them. Despite that, time and again some experts appear incapable of heeding the advice. Too often, there is more than a hint of personal bias in some reports or a tendency to construct a case theory of the expert’s own making that simply fits the conclusion they wish to reach. The defence expert in Parry, engaged by the NFU, looks as though she might have fallen into the latter trap.  Richie J said she had ‘constructed her theory’ by making certain assumptions, which may not have accorded entirely with an objective view of the facts. For example, she provided an assessment of the likely speed of the tractor and then assumed that the court would find that such speed was reasonable.  She assumed that the Claimant’s face, hands and bare legs would have been invisible to the Defendant without explaining quite why that would have been so. There were numerous other assumptions made.  Plainly, the Judge did not think much of them because he said this:

“[29] Miss Eyers saw no conflict between her focus on her constructing this theory and her general duty to advise the court objectively on the issues in the case. Miss Eyers accepted that she did not pass any opinion on the need for main beam in the lighting conditions or for any reduced speed. She chose to remain silent on those matters.”

The reference to ‘no conflict’ was expanded upon in the following passage (italics are my own):

“[36] In cross examination Miss Eyers accepted that the prints of the photographs in her report or some of them were too dark to be a fair representation of the lighting on the night. She accepted that she did not ask the 1st Defendant during her reconstructions whether the videos that she had taken were a fair representation of the light on the night. She could not explain why she did not do so. When the account made by the 1st Defendant to the police of the lighting conditions on the night was pointed out to her Miss Eyers did not explain why she had not taken that into account. I found that approach unsatisfactory. Miss Eyers accepted that she did not take any video with the tractor lights on full beam. Her explanation for not doing so was that that would not be representative of what the 1st Defendant had done. This, it seems to me, is indicative of her focus on exculpating the 1st Defendant rather than assisting the court in an objective way on all relevant matters…

The case is yet another reminder of the need for experts to be fully aware of their duties under the CPR.  As Smith LJ said in the case of Uren ((2011) EWCA Civ 66):

“When an expert witness makes a bad point, it damages his authority and his opinion on other potentially better points is undermined.”

Lords Hope and Reed reminded us in the case of Kennedy v Cordia ((2016) UKSC 6) that “….expert opinion does not extend to supplanting the court as decision maker”.

Indeed, it is probably wise to repeat the reminder given by their Lordships to lawyers that it is their role “… make sure that the proposed witness is aware of the duties imposed on an expert witness.”  In other words, if you read something in an expert report that you appreciate may well cause you problems further down the line; particularly because it looks partisan; it should be challenged then and there.  Having a fully supportive expert report might look superficially pleasing when you first read it but if, in truth, it is going to irritate or alienate a judge at trial then it is worthless.

The Claimant’s outright win in Parry must have been very pleasing to his legal team, whose approach to the claim was vindicated entirely. The Defendant may have won a Pyrrhic victory at the interim payment stage but the foundation for that victory turned out to be the very thing that hastened defeat at trial. There’s a lesson in that…