Experts using 'off the shelf data' to be challenged by courts

'Rigorous methods' of providing detailed assessments more likely to succeed

Experts that use traditional methods of assessing earnings in clinical negligence and personal injury cases are at risk of being challenged by the courts.

Executive search firm Edward Drummond found that experts who solely rely on previously accepted methods are more likely to have their opinions challenged if their estimates were based on 'broad brush, off the shelf data', rather than a bespoke estimate based specifically on the individual.

The objectivity of expert witnesses has been questioned in some quarters following a recent and high-profile BBC Panorama investigation. The BBC programme Justice for Sale?, showed reporter Daniel Foggo pose as a litigant in person asking experts to produce reports in his favour, despite admitting to them that he was guilty of breaking the law. Only one of the nine experts excused himself following Foggo's admission.

Speaking at the Bond Solon expert witness conference in November, Tim Dutton QC said that anecdotal evidence of expert witnesses acting as "guns for hire" or involved in "industrial scale" abuses of the justice system requires a government study.

Edward Drummond has now suggested that expert witnesses who can provide an 'evidence-backed assessment' of a person's potential earnings are more likely to have their evidence accepted by the court.

The firm says that experts submitting data for lifetime earnings calculations tend to be more successful when they investigate the individual concerned rather than a 'typical' example. This allows the expert to compile a comprehensive report detailing the individual's current and future projected earnings along with a projected future career path, had the accident not happened.

Dan Watts, a director at Edward Drummond, explained that the introduction of the Jackson reforms in April 2013 has meant the traditional method of calculating earnings has faced increased scrutiny from judges under pressure to cut both costs and time.

"We're finding that the old method of working out a claimant's potential compensation is open to challenge because it is not robust enough in terms of the amount of research carried out," said Watts.

He continued: "Simply referring to aggregated data from national statistics or other salary surveys is often not enough to persuade a judge to accept your evidence. The courts are only going to allow an expert's testimony if they can prove that they are going to add real value to a case by conducting thorough, and accurate research, including interviewing people in similar careers."

John van der Luit-Drummond is legal reporter for Solicitors Journal