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Points on Expert Evidence

119.

Witness statements of fact should not be used as a vehicle to deliver what ought to be expert evidence (with the proper safeguards attached to such evidence applying), and the Court may disallow opinion evidence put in fact witness statements on this basis: New Media Distribution Co SEZC v Kagalovsky [2018] EWHC 2742 (Ch) at §10; Glaxo Wellcome UK Ltd v Sandoz Ltd [2019] RPC 26 at §§5-15. However, a witness of fact may give opinion evidence directly related to the factual evidence he/she gives: see the survey of authority in Polypipe Ltd v Davidson [2023] EWHC 1681 (Comm) at §§17-31.

120.

As COPA submitted, on many points in this case, the experts on each side are in agreement with each other but Dr Wright takes issue with the common views. The legal position is clear that “where experts are agreed on a matter within their technical expertise, a judge will only rarely reject that evidence; and should not do so without applying considerable caution and giving adequate reasons”: Whiting v First / Keolis Transpennine Ltd [2018] EWCA Civ 4 at §34.

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