EWJ 60 April 2025 web - Journal - Page 80
such as the pleadings. This approach is named ‘sequential unmasking’ – see our article ‘Patent Litigation in Practice Series: Spotlight on the UK: The use
of experts’ for more details on this.
(https://www.twobirds.com/en/patenthub/shared/insights/2024/uk/patent-litigation-in-practice-series-spotlighton-the-uk-the-use-of-experts)
opined there were certain “commercial barriers” to selling dual-outlet electric showers in the UK. Mira’s
counsel put it to him in cross-examination that he was
seeking to make excuses for the fact there were no
electric showers on the market at the Priority Date
without actually acknowledging this fact.
The position Triton’s expert took on this aspect of the
evidence was possibly one of several reasons which
caused the judge to “generally prefer the evidence of
[Mira’s expert]”.
l Triton’s expert was told by Triton’s solicitors at the
beginning of his engagement that Triton was attacking
the validity of the Patent, and that the case was about
multiple outlet electric showers. He was provided with
both Deeley and McMaster-Christie, as well as the
Patent and key documents including the pleadings.
It is important that experts are impartial and do not
attempt to argue a party’s case with their evidence.
Any attempt to do so is not only likely to lead to the
court giving their evidence less weight, but is not in
compliance with the overriding duty that experts owe
to the court under CPR rule 35.3. Consequently, litigants and their advisors should be vigilant to any signs
of legal argument from their experts and address this
as early as possible.
Mira criticised the approach taken by Triton in
directing Triton’s expert to McMaster-Christie rather
than allowing him to locate the reference himself. The
judge accepted this criticism, stating that she could not
be sure to what extent hindsight had played a role in
the analysis by Triton’s expert of the prior art. Although Triton’s expert stated that he would have obtained McMaster-Christie himself from reading the
reference in Deeley even if it had not been provided
to him, the judge found this to be unlikely as she was
not satisfied that he had obtained copies of other documents cited in Deeley. By contrast, the judge preferred the approach taken by Mira to the provision of
documents to its expert.
Further information
For more information on best practice with experts in
patent cases, see our PatentHub article ‘Patent Litigation in Practice Series: Spotlight on the UK: The use
of experts’. (https://www.twobirds.com/en/patenthub/shar
ed/insights/2024/uk/patent-litigation-in-practice-series-spotlight-on-the-uk-the-use-of-experts)
This highlights the importance of careful planning of
how documents are provided to experts, including the
order that documents are provided in and when they
are provided. If proper thought is given to these steps,
this will minimise the chance that experts are open to
criticism of viewing documents with the benefit of
hindsight.
Mrs Amanda Pocknell
Care Expert
2. Expert reports should contain the expert’s own
opinions
Mira also criticised the evidence in Triton’s expert’s
reports regarding Deeley having two “distinct concepts”, namely (i) a shower unit with multiple outlets
and a diverter valve, and (ii) a control unit for such installations. During cross-examination, Triton’s expert
could not recall the two concepts described in his reports. Mira’s counsel suggested that this could be because Triton’s solicitors had invented it. The judge
commented that she had no evidence on this point,
but that the fact Triton’s expert could not recall the
two concepts undermined the idea that the second
disclosure existed.
RGN BSc (Hons) ENB 176; ENB 998.
A graduate nurse with over 37 years' experience in the NHS, Private, Private
Medical Insurance; Medico-legal Nursing Home sectors and specialist
qualifications and experience in Expert Witness, Rehabilitation, Case Management,
Healthcare Management, Counselling and Operating Department Nursing.
Amanda provides Nursing Breach of Care, Causation and Liability Reports;
Condition and Prognosis reports on Nursing care; Nursing Care Needs Reports,
Loss of Services Reports; Care and Services Reports; Care and Case Management
Reports;Rehabilitation Reports, Immediate Needs Assessments, and Aids and
Equipment Reports for individuals sustaining Multiple Trauma, Catastrophic Injury,
Acquired Brain Injury and Personal injury on behalf of Insurers, Solicitors and
Employers.
My Specialist Areas of work include: Operating department nursing, Nursing care,
Orthopaedic, Multiple trauma, Spinal Injury – paraplegic and quadriplegic, acquired
brain injury, Psychological Trauma, Rehabilitation for return to work.TVT/TVO
cases.
This is a helpful reminder that expert reports should
absolutely reflect an expert’s own opinions. Parties’
solicitors should refrain from providing too much
assistance to experts in the drafting of their reports.
Case load split: 10% Single Joint Expert, 45% Claimant and 45% Defendant.
Tel: 01233 332756 - Mobile: 07793 009689
Email: amanda.l.pocknell@gmail.com
Website: www.alpcareconsulting.co.uk
3. Be wary of experts who try to argue the case
Two rounds of expert reports were exchanged
sequentially, with Mira’s expert filing the first report.
In this report, Mira’s expert stated that there were no
dual-outlet electric showers on the market in the UK
at the Priority Date. Triton’s expert did not acknowledge this fact in either of his reports, which the judge
found a “surprising omission”. Instead, Triton’s expert
EXPERT WITNESS JOURNAL
Address: t/a ALP Care Consulting, 23 Bluebell Road,
Kingsnorth, Ashford,TN23 3NW
78
APRIL 2025
