In Imperial Chemical Industries Limited v Merit Merrell Technology Limited [2018] EWHC 1577, at [237], Fraser J reiterated that: “The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them.” He went on to set out examples of the application of the well-known principles in The Ikarian Reefer [1993] 2 Lloyds LR 68, the first being that “expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246 at 256, per Lord Wilberforce)” (emphasis added), the second being that an expert should provide, to the court, independent assistance by way of “objective, unbiased opinion” as to matters in his area of expertise. This duty is echoed in paragraph 2.1 and 2.2 of Practice Direction 35:

“2.1

Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2.2

Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”

As stated by the editors of Phipson on Evidence, at 33-29: “In some cases the expert expresses his views to the lawyer who prepares the first draft or outline of the report for the expert to review. Whilst this can be permissible if properly done, in most cases this should be avoided as it runs the risk that the expert’s views may become influenced by the lawyer’s own views.”

If an expert’s report is found not to be compliant with the principles of independence or impartiality, there are a wide variety of sanctions available to the court. Typically, the court will either refuse to admit the evidence of the expert, or, more frequently, the matter will be taken into account when considering the weight to attach to that expert’s evidence. {Expert Evidence: Law and Practice, 9-013; Phipson on Evidence, 33-78}.