EXPERT WITNESS
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for, but you need to be clear which is which. The difference between these may seem subtle to a layperson but not when conversing with a barrister and legal team!”
// AN INTERESTING EXPERIENCE //
Multiple regulations Ian Smith CFP™ Chartered FCSI (Financial Planning), director at Central Wealth Planning, said he found his time as an expert witness to be an “interesting experience” but the complexity of financial regulation made it difficult as the same areas were affected by multiple different regulations.
INTERNATIONAL DIFFERENCES
Paul Rex, managing director of GBRW Expert Witness, says he quite frequently places expert witnesses in areas such as United Arab Emirates, Singapore, and Hong Kong, often in international banking cases. For example, an international bank which has made a loan to a multinational company, or a cross-border investment dispute.
In the Middle East, legal systems are based on Shariah law but international financial districts have commercial courts based on English common law. Expert witnesses are unable to comment on the local laws of the jurisdiction but can provide their international best practice.
India has a hybrid legal system which combines civil law, common law and religious law, according to Thomson Reuters Practical Law, and an expert witness’s opinion only becomes admissible under cross-examination in court. “In some markets with a relatively small business community, for example in Asia, people sometimes don’t want to give evidence as they don’t want to upset business or social contacts. They also may not relish the prospect of being cross- examined in a public forum,” says Paul.
Sri Lanka has acted to address such concerns. Party-appointed expert witnesses can be formally summoned by the court if their evidence will be beneficial to the party’s case and the party applying must lodge payment to cover the witness’ expenses. Alternatively, court-appointed experts can be commissioned on request and must provide impartial evidence.
In Spain, according to the European Expertise & Expert Institute, a change in 2000 saw the courts move from selecting experts themselves to having experts appointed by litigants at the time of the initial claim. Expert witnesses are chosen from a list and compete for the case based on their expertise. They must be able to defend their report under cross-examination, similar to the UK. However, unlike the UK, the decision over whether there is a need for an expert witness is decided by the lawyer rather than the judge.
The system in Spain allows those seeking such work to give just their official expert title, without any evidence of experience or specialty, meaning people can be eligible even if they have only worked in the field for a short time. This has created an excess of ‘experts’. To reduce this, professional associations have been set up to defend experts’ interests.
“The case was one of the largest fraud
trials of the past decade to go to court but the defendant changed his mind and pleaded guilty,” said Smith. “I do not know whether the evidence I provided affected that but I certainly questioned the viability of the proposed defence.” He received some training before the
case and intends to do more in the future in case he is asked again. Overall, the interviewees for this piece
said they would be open to taking up the role again and had enjoyed the intellectual curiosity and satisfaction of the role, regardless of the monetary benefit.
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THE REVIEW MARCH 2023
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