High Court Dismisses Application to Exclude Expert Evidence at Trial

In Fawcett v TUI UK Ltd [2023] EWHC 400 (KB), Dexter Dias KC, sitting as a Deputy High Court Judge, considered an application by the Claimant to exclude the Defendant’s expert evidence in a personal injury trial. The application was dismissed.

Background

The Claimant sued the Defendant as administratrix of the estate of her late husband Mr Roy Fawcett (“the Deceased”), who died on 12 October 2017 whilst on holiday in the Dominican Republic. During the course of that holiday, which was purchased from the Defendant, the Deceased drowned in shallow water whilst snorkelling during an island excursion.

The Claimant brought claims against the Defendant in contract and tort. Whilst it was agreed that English law is applicable to the claim, as the judge explained at [4], local standards under Dominican law may be relevant in determining the duty of care owed by the excursion provider for whose acts and omissions the Defendant is, on the Claimant’s case, vicariously liable.

The Defendant filed and served a report by Mr Tom Magner. In response, the Claimant sought an order revoking permission granted to the Defendant to rely upon Mr Magner’s evidence. As the judge noted at [6], the central point made by the Claimant was that the “sheer extent of the disregard of the obligations and professional duties of an expert” necessitated its excision from the trial evidence. The Claimant’s position was that Mr Magner was “trying to fashion himself impermissibly as a legal and local standards expert. He is not. He is an engineer.” 

The application was opposed by the Defendant.

Outcome

In dismissing the application, the judge dealt with each of the Claimant’s objections to Mr Magner’s evidence in turn.

Ground 1: Lack of Expertise

The judge considered, first, whether this question could be assessed at an interim hearing. He decided that it could: [10]. He went on to decide at [12] that “the defendant must satisfy the court that he has the necessary expertise.” In terms of how sufficient qualifying expertise is attained, the judge observed at [14] that “one obvious route” is that “expertise is acquired by doing the thing in question, usually over many years” (quoting HHJ Matthews in De Sena v Notaro [2020] EWHC 1031 (Ch)), but went on to note that this does not preclude other routes, such that “each case of acquiring the requisite expertise is uniquely fact-specific“.

As to the bar to be surmounted, basing himself on Rogers v Hoyle [2015] 1 QB 265 at [43] and other authorities, the judge noted that the bar is “not particularly high“, with the degree of expertise going largely to the weight to be given to the evidence rather than its admissibility. At [16], he opined:

Even though the bar is said to be not particularly high, bar still there is. It is not simply a case of anybody who presents themselves as an expert does gain access to that status in this court. Therefore, the test must be, in my judgment, solid evidence of sufficient expertise of the relevant discipline or issue – self-proclamation as expert is not enough.

On the facts of the case, the judge held as follows at [27]:

[T]o say that Mr Magner’s evidence falls below that not particularly high threshold is to be, in my judgment, too forensically ambitious and unpragmatic. It is to press the case that effectively Mr Magner’s evidence is intrinsically worthless. That submission cannot survive the information Mr Magner has provided in his CV. To reach a different conclusion on the papers would, in my judgment, require the court to hear oral evidence and have Mr Magner’s expertise probed and dissected. That is not a necessary or proportionate course at this procedural stage. In fact, it is precisely what the trial is for. This is an objection, in my judgment, that goes to weight and not to admissibility (Hoyle v Rogers at [43]).

Ground 2: Failure to Identify the Relevant Dominican Republic Standards

This was not pressed by the Claimant at the hearing: see [28].

Ground 3: Expressing Opinions Outside Areas of Expertise

The judge noted that this question was also considered by the Court of Appeal in Rogers v Hoyle at [52], where Christopher Clarke LJ stated that it was preferable to treat over-reaching opinions:

… as a question of weight rather than admissibility, particularly since there is no clear point at which an expert’s specialised knowledge and experience ceases to inform and give some added value to the expert’s opinions. It is a matter of degree … the proper course is for the whole document to be put before the court and for the judge at trial to take account of the report only to the extent that it reflects expertise and to disregard it in so far as it does not …

The judge therefore held at [32] that this objection was “classically a matter for the trial judge’s judgment and discretion“: it was not a basis for the exclusion of Mr Magner’s evidence; and it was not appropriate at an interim stage to excise or to remove a particular passage or passages because that is “a matter for the trial judge to assess once the evidence is before her or him.“

Ground 4: Failure to Maintain Impartiality

The judge considered this objection to be “tantamount to an allegation of bias” and, therefore, “inescapably a serious allegation” such that there must be “a clear and cogent basis to make it out“: [33].

At [35], the judge noted inter alia that, in his experience, “courts handle expert witnesses situated at every point of the spectrum between dispassionate and disinterested objectivity to impermissible and over-exuberant partiality. It will be a question for the trial judge where on that forensic spectrum Mr Magner falls and whether … he is a “partial advocate”, offering advocacy under the “guise of expertise”“.

Accordingly, the judge found that the Claimant’s application on this ground was “fundamentally misconceived“: [37].

Comment

This judgment demonstrates that the assessment of expert evidence is par excellence a matter for the trial judge, with a relatively low bar to be surmounted before matters will go to weight rather than admissibility. Judges at interim hearing should accordingly, and for good reason, be reluctant to exclude – or excise passages of – expert evidence from a trial judge’s consideration.