Susan Lorna Fawcett v Aimee Louise Allen

Expert evidence should generally be excluded only where the proposed witness lacks sufficient expertise or the evidence is otherwise genuinely inadmissible. The qualifying threshold is not particularly high, but there must be solid evidence of relevant expertise; self-description is insufficient. Whether an expert’s qualifications and experience meet that threshold may be assessed at an interim hearing on the papers.

Opinions extending beyond an expert’s expertise ordinarily go to weight rather than admissibility. The trial judge may disregard material that does not reflect specialised knowledge. Alleged partiality or disagreement with an expert’s conclusions requires a clear and cogent basis and will usually be tested through cross-examination.

The claim arose from the death of Roy Fawcett while snorkelling during a holiday excursion in the Dominican Republic. The claimants brought fatal accident and personal injury claims in contract and tort against TUI UK Ltd. English law applied, although Dominican standards might be relevant to the excursion provider’s duty of care.

The defendant relied on an engineering expert, Tom Magner, concerning local standards and Dominican public law. Before the imminent trial, the first claimant applied to revoke permission and exclude his report, alleging insufficient expertise, opinions outside his field, and lack of impartiality. The court determined whether those criticisms justified exclusion or should be addressed at trial.

1. The application was dismissed. Permission to rely on Mr Magner’s evidence was not revoked. Costs followed the event, subject to further argument on costs.
2. A party seeking to adduce expert evidence must satisfy the court that the proposed expert has the necessary experience or qualifications for the relevant issue. Expertise may arise from relevant experience, relevant qualifications, or both. The route by which expertise is acquired is fact-specific and is not confined to long-term performance of the precise activity.
3. The threshold for expert status is relatively modest, but it is not absent. There must be solid evidence of sufficient expertise in the relevant discipline or issue. Applying Hoyle v Rogers [2014] EWCA Civ 257, the court held that Mr Magner’s experience of safeguarding issues, forensic investigations, risk assessments and local standards in the Dominican Republic was sufficient on the papers. The depth and quality of that experience remained matters for trial.
4. The defendant had to establish Mr Magner’s expertise because it sought to rely on his report. The court distinguished expertise concerning practical safety and safeguarding standards from expertise in the substantive law of the Dominican Republic. The evidence was directed to the former.
5. Following Hoyle v Rogers [2014] EWCA Civ 257, opinions that overreach the expert’s field generally concern weight rather than admissibility. The proper course is ordinarily to admit the report and require the trial judge to rely on it only to the extent that it reflects expertise. The court declined both wholesale exclusion and pre-trial excision of passages.
6. The principle in R v Pabon [2018] EWCA (Crim) 420, that an expert cannot acquire expertise by proxy merely by consulting others, did not justify exclusion. Mr Magner stated that his opinions were based on personal experience rather than consultation undertaken to educate himself.
7. An allegation of expert bias or lack of impartiality is serious and requires a clear and cogent evidential basis. The criticisms of Mr Magner’s conclusions, including his interpretation of an audit report and his expression of views on the ultimate issue, were suitable for cross-examination and assessment at trial. They did not establish witness impropriety or justify exclusion.