Smolen v Solon Co-operative Housing

[2003] EWCA Civ 1240

Expert witnesses should possess the three ‘I’s

Facts

In a dispute over repairs to residential premises a surveyor was instructed as a single joint expert. The claimant later discovered that the surveyor, Mr Reddin, had been instructed by the defendants a number of times in the past, and applied to have him discharged and an alternative expert appointed.

Issues

Whether, notwithstanding that there was no specific allegation of bias or lack of impartiality, the judge had been correct to discharge Mr Reddin on the basis that he had acted for the defendant a number of times in the past.

Decisions

The Court of Appeal (Sedley LJ, Keene LJ) upheld the decision to discharge the expert and appoint a new one. A single joint expert should not only be impartial, but also be seen to be impartial. There was no suggestion of impropriety or fault on the part of the defendant in appointing Mr Reddin. The cost of Mr Reddin’s fees were to be met by both parties equally.

Comment

It has been said that expert witnesses should possess the three ‘I’s: independence, impartiality and integrity. This case shows the importance of not only actual impartiality, but the appearance of impartiality.