Expert Witnessing and Dispute Resolution

In their report ‘Expert Evidence in criminal proceedings in England and Wales’, the Law Commission suggested in 2011 a statutory reliability test, which regulates the admissibility of expert opinion as evidence. Such a test should reduce the risk of unsafe convictions as a result of unreliable expert evidence. However, the government did not follow this suggestion, mainly on the grounds of costs, but invited the Criminal Procedure Rule Committee to consider amending the Criminal Procedure Rules instead. 

Critically evaluate the development of the requirements of admissibility of expert evidence in criminal proceedings in recent years and how and if the suggestions of the Law Commissions were implemented through the amendments of the Criminal Procedure Rules and Practice Directions. Refer to recent case law in relation to this issue. 


You are a forensic accounting expert, instructed by Bramson & Co who act for Clark Dorgan, aged 26. Clark is a tennis instructor and is in the process of divorcing his wealthy wife Linda, aged 55. Bramson & Co ask you to investigate the assets of Linda. Clark and Linda did not enter into a pre-marital agreement and Clark is convinced that she has not been open about her financial affairs; there appears to be a lack of substantial deposits in her accounts and Clark believes these have been hidden overseas.
It is your view, and you have stated this in your report, that Linda has significant sums stashed away in a number of undeclared accounts both in the UK and in other jurisdictions. In your opinion, Linda’s net worth is approximately £26 million.
The Defendant’s expert, Mr. Atkin, has also prepared a report. In his report he states that Linda’s assets are limited to those already disclosed, with a total value of

Bramson & Co make an offer of £2.5 million to Linda’s solicitors to settle the dispute, basing their figure on the evidence set out in your report. Linda also makes an offer (based on the contents of Mr Atkin’s report) for £225,000, in full and final settlement. Clark rejects this offer on the basis of the contents of your report and the matter goes to court.
The Court has ordered that you and Linda’s expert meet to discuss the case and prepare a Joint Statement, in order to save time and costs. By coincidence, you are both attending the same Forensic Accounting Conference in Hong Kong. You arrange to meet over a drink in the Conference Centre bar, after the end of a long day of lectures and workshops. Unfortunately, you are still suffering from jet-lag and forget to take the papers regarding Clark’s case with you.
Mr Atkin orders a bottle of wine and becomes loud and overbearing as you discuss the case. As he repeatedly refills your glass, he consistently asserts his view that there are no other assets available to his client. You, on the other hand, are finding it very hard to concentrate and get the case confused with another one you are working on. While all you want to do is get back to your hotel room and sleep off your jet-lag, Mr Atkin is insisting that you must reach an agreement that night as the Joint Statement needs to be completed by the end of the week and he is not returning from the conference until Wednesday. As a result you decide to agree to Mr Atkin’s figure on assets (£560,000).
The next morning, Mr Atkin hands you a copy of the Joint Statement on the way into the Conference Centre and you sign it without reviewing Clark’s case, as you are due to deliver a presentation in a few minutes and are feeling very nervous.

As a result of the Joint Statement, Clark is restricted to claiming a share of the
£560,000 declared assets, rather than a share of the £26 million his solicitors, Bramson & Co, had proposed and the Judge is not prepared to consider further expert evidence on this issue. Clark is very unhappy and now wishes to pursue you for negligence for the loss of his share of £26 million. He alleges that you had no authority to sign the document without liaising with Bramson & Co.

Prepare an essay which will consider, among any other issues that may arise:
• Is Clark Dorgan entitled to sue you? What is the law on this issue?
• If he can sue you, on what grounds could he base his action?
• Do you have any defences to his action?

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