Expert Evidence: Avoiding Pitfalls & Navigating the Minefield

Gabriel Tsui, a Director with PWC China & Hong Kong and Zachary Chang, Senior Manager, have put together a 2-part series dealing with expert evidence.

Part 1, titled “Capsule for Avoiding Pitfalls” deals with a range of issues including: independence and duties to the Court/Tribunal; Practice Direction 35 (Experts and Assessors) of the UK Civil Procedure Rules; multiple instructions; expertise and qualifications of an expert; guidelines and rules under various institutional rules (LCIA, HKIAC, SIAC); liability for wasted costs; and various recent case law, including Bux v The General Medical Council [2021] EWHC 762 (Admin) (31 March 2021), Secretariat Consulting PTE Ltd & Ors v A Company [2021] EWCA Civ 6 (11 January 2021), Byrne & Ors v R. (Rev 1) [2021] EWCA Crim 107 (03 February 2021), and Thimmaya v Lancashire NHS Foundation Trust [2020] 1 WLUK 437;

Part 2, titled “Navigating through the Minefield” deals with: reliance on solicitor Instructions/management assumptions; reliance on specialist’s work/opinion of others; acting as an advocate / “hired gun” for your client; expert shopping; and a range of cases including Allen v Robbie [2015] NSWCA 247, Joint v Program IT Pty Ltd & Ors [2020] VSC 867, ICamera Ltd, Re (Valuation) [2021] EWHC1762 (Ch) (29 June 2021), Dasreef Pty Limited v Hawchar [2011] HCA 21, Colt Telecom Group Plc, Re [2002] EWHC 2815 (Ch) (20 December 2002), Yelland Security Pty Ltd v Plus Architecture International Pty Ltd [2021] VSC 416, Bank of Ireland v Watts Group Plc [2017] EWHC 1667 (TCC), Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC) (02 July 2021).

The authors end with a series of useful questions an expert should ask when offering expert opinions:

  • Am I providing objective unbiased opinion in relation to matters within my expertise?
  • Is the report my independent product uninfluenced by the exigencies of litigation and/or the parties who engage me?
  • Have I stated all the facts or assumptions upon which my opinion is based and not omitted any material facts which could have an impact on my concluded opinion?
  • Have I made clear in my report a particular question or issue which falls outside my expertise?
  • Have I obtained sufficient data to form my expert opinion?

About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Hong Kong Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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