The wrong expert witness can sink your case

It is not just the independence of the judiciary and the legal profession which is a cornerstone of the Scottish civil justice system; the same principle applies to expert, or “skilled,” witnesses.

In the case of David Adam v Moneybarn No. 1 Limited at Dumbarton Sheriff Court, an agreement was reached to purchase a Citroen DS3 vehicle for £9,290.14, payable in monthly instalments. Mr Adam collected the car from a location in Northern Ireland on 28 February 2022. At that time, the vehicle was 8 years old and had a mileage of 45,624.

In late 2022, Mr Adam encountered a number of problems with the car, which he had investigated. In February 2023, Mr Adam’s agent, Reject My Car, contacted the defenders and requested that the car be repaired. In March 2023, Mr Adam sought to exercise his right to reject the car. However, this was not accepted by the defenders.

Independence is a cornerstone of the Scottish civil justice system, says Val Pitt

Mr Adam argued the vehicle supplied was not of satisfactory quality and he had the right to reject the car under the Consumer Rights Act 2015. The defenders argued the car was of satisfactory quality, commensurate with its age, price and mileage.

It was not disputed that Mr Adam had driven the car for around 11 months before contacting the defenders to make a complaint. Between the date of collection in February 2022 and the complaint in March 2023, the vehicle had driven a further 10,063 miles.

In support of his case, Mr Adam sought to lead evidence from a skilled witness, Mr Muir Smith. The Supreme Court authority of Kennedy v Cordia was reviewed, which held that for the evidence of a skilled witness to be admissible, it must be considered (i) evidence which will assist the court in its task (ii) that the skilled witness has the necessary knowledge and experience (iii) that the witness is impartial in their presentation and assessment of the evidence and (iv) that there is a reliable body of knowledge or experience to underpin the evidence.

The defenders objected to the evidence of Mr Smith and argued he was not impartial, on the basis that he had a relationship with the director of the agent acting for Mr Adam, Reject My Car Ltd. Reference was made to multiple social media posts in which Mr Smith had liked and commented upon posts from Reject My Car Ltd, including success stories, and a comment from Mr Smith advising he had invited his full friends list to follow Reject My Car’s Facebook page.

The Court noted there was no dispute that Reject My Car had played an integral part in Mr Adam taking the action against the defenders. They had referred him to his solicitors and instructed Mr Smith directly to prepare his report. The Court noted that, whilst some of the posts might not have given rise to a legitimate attack on Mr Smith’s impartiality, it was concerned about some of the more “blatant individual posts” and the “cumulative effect” which led to the impression that Mr Smith had a certain view of the car industry and sympathy for cases Reject My Car took on.

It was considered his assessment of the evidence was not impartial and, therefore, inadmissible. The court found Mr Adam had failed to present evidence that the car was not of satisfactory quality and his claim failed.

Where expert evidence is required, the first skill to be deployed is identifying and instructing an appropriately qualified and independent skilled witness.

Val Pitt is a Partner, Horwich Farrelly​