Practice

Expert evidence - expert witness close friend of party calling him - evidence inadmissible Liverpool Roman Catholic Archdiocesan Trust v Goldberg (No 3): ChD (Mr Justice Evans-Lombe): 6 July 2001The claimant brought an action in negligence against the defendant barrister for damages in respect of advice given to the diocese in relation to its tax affairs.

The action was settled after trial, following the circulation of the draft judgment of Mr Justice Evans-Lombe to the parties, on terms, among other things, that the draft judgment would not be handed down.

The judge nevertheless gave judgment on the claimant's application, held over until trial by order of Mr Justice Neuberger [2001] Gazette, 26 April, 38 that expert evidence due to be given on behalf of the defendant be declared inadmissible by reason of the witness's close friendship with the defendant over many years and their membership of the same chambers.

Michael Briggs QC and Giles Goodfellow (instructed by McCormicks, Leeds) for the claimant.

Andrew Simmonds QC and David Owen (instructed by Linklaters) for the defendant.

Held, granting the application, that the witness's admission that his personal sympathies were engaged to a greater degree for the defendant than would probably be normal with an expert witness rendered his evidence unacceptable; that public policy required that justice be seen to be done as well as done, and an expert witness owed duties to the court which he must discharge notwithstanding the interest of the party calling him; that while neither section 3 of the Civil Evidence Act 1972 nor the authorities under it expressly excluded the expert evidence of a friend of one of the parties, where it was demonstrated that there existed a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert, his evidence should not be admitted however unbiased his conclusions might be.