Finally, Fraser J admonished Mr K for providing two witness statements in support of a disclosure application in which he identified documents he said were required in order for him “to perform his expert function.” This was highly unusual and should be discouraged – it was a matter to be left to the parties. Involving an expert in a fiercely contested application could only weaken their independence. In the trial on liability, Fraser J had also been the judge, and had found each of ICI’s experts on that part of the case to be partisan. He remarked that it was unfortunate that in a case with sums in excess of £10 million in issue, he felt able to rely on the expert evidence of only one party. He said: “The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts at stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR Part 35, Practice Direction 35. Every expert should read it.” Fraser J then referred approvingly to the principles set out in The Ikarian Reefer. However, he went further and added a few more principles of his own, targeted at the deficiencies he had encountered with the expert evidence in this later case: - Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number. - Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court. - Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent. - The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way. - Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert’s opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise. The Bank of Ireland and ICI decisions showcase the most common flaws in expert evidence, and the guidance provided by the judges should be drawn to the attention of any prospective expert witness. The next two decisions, on the other hand, involve experts that have made rather extraordinary mistakes. The resulting guidance for any prospective expert is narrower, but simpler: “Don’t do what they did.” Castle Trustee In Castle Trustee Ltd v Bombay Palace Restaurant Ltd [2018] EWHC 1602 the claimant (“Castle”) and the defendant (“BP”) were in dispute over the costs of refurbishing BP’s restaurant, Bombay Palace. An adjudication took place in which Castle obtained the report of a delay expert. BP did not call a delay expert but in any event succeeded in the adjudication.