The High Court has told a claimant making sweeping criticisms of the defence’s expert witness that the best forum for testing the evidence is at trial.

Mr Dexter Dias KC, sitting as a deputy judge of the High Court, dismissed the claimant’s application in Fawcett & Ors v TUI UK Ltd to exclude the expert’s evidence ahead of an imminent personal injury trial.

The claimant, the wife of a man who died whilst snorkelling on holiday in the Dominican Republic, had accused expert Tom Magner of consistently favouring defendants in similar cases.

But the judge, in a ruling fpublished this week, rejected all the arguments that the expert’s suitability should prevent his evidence from being heard, effectively saying that the best forum to test his expertise was at trial.

The court heard that Magner had no specific Dominican Republic risk standards qualification and was not a lawyer. But the judge accepted he had extensive experience working on relevant safeguarding issues and had conducted forensic investigations in the country.

Magner, it was ruled, did possess sufficient relevant expertise and he had reached the qualifying bar.

The judge said the claimant had been ‘too forensically ambitious and unpragmatic’ about the quality of Magner’s evidence and had pressed the case that his input was ‘intrinsically worthless’.

‘That submission cannot survive the information Mr Magner has provided in his CV,’ said the judge. ‘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.’

The claimant’s solicitor, Irwin Mitchell’s Nicola Heathcote, had suggested that Magner was ‘well-known to my firm’ as an expert frequently appointed by defendants in claims against tour operators.

The judge said the accusation that there had been a failure to maintain impartiality was ‘tantamount to an allegation of bias’. But again it was for the trial judge to decide whether witnesses were objective and whether the evidence was demonstrably wrong. Magner, the judge added, was not ‘constitutionally prone’ to being pro-defendant, as his CV showed his work was split almost 50-50 between claimant and defendant instructions.

 

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