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idence of the agreed expert and engages the services of another expert for expert evidence as seen in Carlson v Townsend [10] (“the claimant could not be ordered to disclose the initial evidence if he no longer planned to rely on it”)

An Assessor is appointed by the court [11] and is mainly responsible for preparing a report on any matter concerning the proceedings or advise the court on any matter as ordered by the court.

The duties of a SJE are no different from that of any expert witness and the SJE is jointly appointed by the parties or where they cannot decide, the courts can appoint a single joint expert from a list prepared or identified by the parties (CPR part 35). They are very rarely required to give oral evidence and a written report is the norm.

The Academy of Experts [12] has laid down ‘The Code of practice for Experts’ endorsed by Lord Philips of Worth Matravers, which again stresses the need for objectivity and to avoid bias.

Discussion

Recent cases have shown the fallibility of Expert Witness as for example in the case of R v Sally Clark [13] where Prof Roy Meadow’s interpretation of statistical data (erroneously as it was detected later) led to increased suspicion of Sally Clark’s claim that she was not responsible for the death of her children and led to her conviction (wrongly as it turned out later).

The influence of the opinions expressed by the Expert Witness can be profound and are quite likely to sway the opinions of the courts towards those expressed by the Expert. It is therefore imperative that the Expert needs to be tested not only for his level of expertise (competence), but also vitally important to ensure that their opinions are reliable and unbiased (admissibility).

It might seem strange that the possibility of the existence of bias is entertained in such acknowledged experts and to be fair, it is mostly not a conscious trait. Bias could creep in unnoticed and subconsciously, despite the integrity of the individual concerned and in spite of their genuine desire to be impartial and to honour their duty to court and to the course of justice.

Whilst there have been guidelines laid out as a means of establishing the ‘general acceptance’ and ‘scientific validation’ for admissibility of expert evidence, (Frye [14] and Daubert [15] ) it is not so straightforward to eliminate an Expert witness’s bias, unintended or otherwise.

It is important to distinguish between bias and disagreement in relation to expert witness. Bias can undermine the objectivity and reliability of the expert witness and therefore the court’s judgment. Expert bias is usually due to a personal, financial or intellectual interest, per Dwyer [16] in her article on ‘The causes and manifestations of bias in civil expert evidence’. Personal interest could be due to personal beliefs and opinions that could incline the expert towards one view rather than just look at the individual case. Dwyer quotes the example of Hertzler v Hertzler [17] where the mother was allowed limited visitation to the children (at the request of the father) since the parents could not resolve their differences over gay and religious values. More importantly, the father engaged the expert after first establishing that the expert had an ‘anti-gay’ bias and hence the expert evidence was found inadmissible.

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