Expert opinion evidence in the Bermuda Courts: the need for independence and objectivity, not partisan advocacy

Expert opinion evidence is often adduced before the Bermuda courts, in both civil litigation and criminal litigation.

In its important 2015 judgment in Myers et al v The Queen [2015] UKPC 40, the Privy Council considered three criminal appeals against conviction, challenging decisions of the Court of Appeal for Bermuda, in which the Court addressed important issues regarding the admissibility and proper ambit of evidence as to the existence and practice of gangs in Bermuda, and the defendants’ connections with such gangs.

The Privy Council also considered the ability of police officers to act as expert witnesses, and the duties of expert witnesses more generally.

In doing so, the Privy Council expressly confirmed that the Ikarian Reefer principles remain good law in Bermuda, both in the context of civil litigation and in the context of criminal litigation. These important principles can be summarized as follows:

(1)     Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

(2)       An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the Bermuda courts should never assume the role of advocate.

(3)       An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions.

(4)       An expert should make it clear when a particular question or issue falls outside his expertise.

(5)       If an expert’s opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one.

(6)       If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court.

In practice, however, not all “experts” remember to comply with their duties to the Court. For example, in the case of Phoenix Global Fund Ltd and Phoenix Capital Fund Ltd v Citigroup and Bank of Bermuda [2009] Bda LR 68, the trial judge, Mr. Justice Bell (now a member of Bermuda’s Court of Appeal), heavily criticized one of the Plaintiffs’ expert witnesses for adopting the role of an advocate for his clients.

 

 

 

 

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