Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 67
When opinion becomes fact
by Sian Fisher, Senior Associate
Factual witness evidence can be the foundation of
a successful defence. However, obtaining a credible
and compelling statement from the key witnesses
can be challenging.
Unsurprisingly, this unusual stratagem did not
escape the scrutiny of the trial judge. Noting that
the Defendant’s evidence had evolved throughout
the lifetime of the case, the Judge observed that
“
The Claimant will have undergone the procedure or
sat through the consultation or assessment which is
at the heart of the case only once. By contrast, the
witnesses for the Defence may have repeated the
process in question many times in the intervening
period and have no recollection of the particular
procedure or consultation which is the focus of the
claim. Some assistance may come from reviewing
the contemporaneous notes, but the notes may be
written in short hand, particularly if the procedure
in question is routine.
In other words, rather than the expert basing his
opinion as to whether the care was reasonable upon
the Defendant’s factual account of his reasoning at
the time, the Defendant based his factual account
upon the opinion of his expert, who was a known
enthusiast for arthroscopies. In short “the defendant’s
account of his reasoning and recollection has been, no
doubt unwittingly, in昀氀uenced by expert opinion”. Given
this, the Judge concluded that “I can place little or
no reliance upon the defendant’s witness statement or his
evidence at trial”.
The witness may describe their usual practice as a
means of bolstering their evidence. This, of course,
is reasonable. However, as a recent case illustrates
(Ebanks-Blake v Calder [2025] EWHC 3327 (KB)
(18 December 2025) adopting the evidence of
the parties’ expert and passing it o昀昀 as your own
recollection, is not.
The case
The defence failed.
The claimant was a professional footballer with
Wolverhampton Wanderers who su昀昀ered a
fracture of his lower left 昀椀bula during a match. The
Defendant reduced and 昀椀xed the fracture to the
昀椀bula in addition to which he performed an ankle
arthroscopy. The Claimant’s case was that the latter
procedure was not indicated and caused damage.
The key issue to be addressed by the Defendant in
his statement therefore was the rationale behind his
decision making at the time. Put simply, why had
he thought that the arthroscopy was reasonably
required? To supplement his own recollection, the
Defendant incorporated wholesale passages from
the report of his expert into his statement, without
attribution.
EXPERT WITNESS JOURNAL
the fact that sections of the defendant’s witness
statement had been cut and pasted from Professor
Ribbans’ report is a strong pointer in the direction of
the defendant’s thinking having been in昀氀uenced by
aspects of the expert opinion of Professor Ribbans.
The defendant accepted that those sections were
almost word for word identical and their inclusion
could not have been accidental or coincidental”.
Practice points
This is the latest of a series of cases in which factual
statements have been the subject of un昀氀attering
judicial comment, and where the hand of the lawyer
has been felt, rather than the voice of the witness
heard. Ultimately, lawyers do need to step back and
let the witnesses speak for themselves.
65
FEBRUARY 2026
