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EXPERTS & COVID 19 - WHAT WE CAN LEARN FROM THE COURTS

Litigation sometimes involves disputes over esoteric areas that require evidence from experts who are highly qualified in their field. The experts may boast impressive credentials and they may be widely published in their field.


The judge in such a case may have the unenviable task of choosing between conflicting evidence from eminent experts. In relation to Covid 19, there is conflicting evidence from eminent experts about the nature of the virus and how effective policies such as masks and lockdowns are likely to be. However, I will not cover this important subject within this article.


Where there is evidence from highly qualified experts, or even where there is only one joint expert, the judge must not simply defer his decision to an appointed expert. To do so would amount to a breach of the Claimant’s right to a fair trial, at common law and under article 6 of the ECHR.[1]


Furthermore, an expert should offer opinions on issues they have been asked to comment on, using their expertise to do so. They should not seek to usurp the Court by opining on what the correct decision in the case would be.[2] Nor they should they comment on matters that are outside of their expertise. If they do either of these things, their evidence is liable to be excluded.


A parallel can be drawn between the proper function of an expert witness in litigation and the experts who have advised politicians on policy in response to Covid 19. The parallel is a useful one to draw, amidst the simplistic mantra that urges deference towards experts and seeks to portray opponents of lockdowns as reckless and irrational. This is aside from the fact that SAGE seems to include a significant number of behavioural psychologists who have urged the use of ‘hard hitting emotional messaging’ to persuade ‘complacent’ members of the public to accept lockdowns.[3]


In the same way that a judge deciding a case in civil litigation must not defer their decision to an expert, during an alleged pandemic, politicians have a responsibility to exercise independent judgement and to ensure that they are the genuine decision makers. Even if the evidence from the epidemiologists and virologists, which has been used to justify lockdowns, was irrefutable, lockdowns raise economic, sociological, philosophical and ultimately political issues.


Secondly, the epidemiologists and virologists should not seek to usurp the function of politicians and try to assume de-facto political control. Yet there have been many examples of this, where experts are not merely commenting on matters within their expertise such as likely transmission and death rates but are vociferously commenting on matters of policy. Further a significant number of those described as experts, are not virologists or epidemiologists.[4]


When an expert in litigation comments on matters outside of their expertise or seeks to usurp the functions of the Court, either their evidence should be excluded entirely, or the judge should disregard any opinions from the expert that are outside of their expertise and remind the parties who is deciding the case.


By the same token the public should either ignore experts who stray outside their areas of expertise or who seek to advocate particular political policies, or alternatively they should recognise that their opinions on policy or other matters outside of their expertise, have no greater value than any other opinion.

[1] Terra Wonningon v Netherlands (1997) 24 E.H.R.R 456 at p447 findings 3 (b) & 3 (c) [2]PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT “USURP THE FUNCTION OF THE COURT” – - para 72 of the judgment - Civil Litigation Brief [3] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/882722/25-options-for-increasing-adherence-to-social-distancing-measures-22032020.pdf [4] See for example - Global experts urge Boris Johnson to delay ‘dangerous’ Covid reopening | Coronavirus | The Guardian & Dr Zubaida Haque Archives – Lockdown Sceptics. The latter is a ‘social researcher with expertise in ethnic minorities and Muslim communities’ HERE.

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