[2025] EWHC 1844 (KB)

Guidance was given on experts’ duties by Cresswell J in National Justice Campania Naviera v Prudential [1993] 2 Lloyd’s Rep 68, at paras 81-81. This has subsequently been approved at the highest level, with only slight amendment

“The duties and responsibilities of expert witnesses in civil cases include the following:

1.

Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation: Whitehouse v. Jordan [1981] 1 W.L.R. 246 at 256, per Lord Wilberforce.

2.

An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise: Polivitte Ltd. v. Commercial Union Assurance Co. plc [1987] 1 Lloyd's Rep. 379 at 386, Garland J. and Re J [1990] F.C.R. 193, Cazalet J. An expert witness in the High Court should never assume the role of an advocate.

3.

An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J, supra).

4.

An expert witness should make it clear when a particular question or issue falls outside his expertise.

5.

If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J, supra). In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report: Derby & Co. Ltd. and others v. Weldon and others, The Times, 9 November 1990, per Staughton L.J.

6.

If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

7.

Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports …”

Regretfully, I am driven by the evidence to find that Mr Gale was a partial witness who acted as an advocate for the Defendant’s case. He not only ignored the Claimant’s evidence and adopted the guides’ evidence, he positively sought to persuade the Court to find facts in the Defendant’s favour. His report was littered with errors and illogicality. His research on modes of operation of SMs was flimsy and unimpressive. He strayed into accident reconstruction. He made things up in the witness box and he estimated facts when the actual facts were staring him in the face. I am unable to rely on the vast majority of his evidence.

Mr Klammer was clearly doing his best to assist the Court. He was precise, logical and well prepared. However, his expert evidence depends to a substantial extent on the Court accepting the Claimant’s account of events. He tended only to focus on the Claimant’s factual version and rather ignored the guides’ factual version. He made a factual error about how far back AP could see when he looked back before turn 1. He said 180 metres, when the accident reconstruction experts agreed it was 62-80 metres. In addition, he tended to mix up what he considered to be best practice with the actual local standard, which was what reasonable guides would do to keep the Claimant safe, in so far as they reasonably could, when briefing and guiding customers. He passed overly strict opinions on a number of issues and he had to withdraw some of his criticisms in cross examination. I do not accept his opinion that the Lynx Xtrim 900 should not ever be used by inexperienced riders in Standard mode. I consider that the joint Finnish Law expert’s opinion in their agreed report is the correct approach. I do not accept his evidence that a practice area must be used for beginners to learn the control on a Lynx Xtrim 900. I consider that the open and easy 600-700m slow procession of ride 1 was not an unreasonable way to train the Claimant in the use of the SM. I do not consider that the LHR risk has to be explained to customers, however I do accept that safe LHT SM operation must be clearly explained.