Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 74
The temptation is to 昀椀nd that the collapse of the
council’s case was of the council’s own making,
given a member of its own team gave evidence that
was demonstrably 昀氀awed and unsound and admitted
so by its own expert. The Court of Appeal said,
however:
No, his job is a duty to the court. He would be
behaving unreasonably if he kept up his sleeve a
new-found opinion that torpedoed his party’s case.
His primary duty is to the court. The HSE did not
get its costs.
The article was 昀椀rst published in Building
www.building.co.uk
The mere fact that the evidence of an expert witness
being demolished in cross-examination does not, of
itself, lead to the conclusion that the party calling that
expert has been guilty of unreasonable behaviour.
Instead, it may be said that where an expert witness
accepts points put to him in cross-examination, which
are adverse to the case of the party calling him, he is
performing his duty to the tribunal in question.”
The Appeal Court pointed to a remark in the case
of R vs Cornish, where the well-known construction
industry Judge Coulson said, of an expert who proved
“obviously unreliable” when giving his evidence: “In
my view, it would be unfair to say anything went
‘wrong’: In some ways, what happened was a good
example of the adversarial trial process in action.”
Anthony Bingham
Anthony Bingham (Tony) is a specialist in Building
& Civil Engineering litigation, arbitration,
adjudication and alternative dispute resolution.
Tony is a practising barrister, arbitrator, adjudicator
and mediator. He joined 3PB in 1991.
It seems to me there are two questions here. First,
was it unreasonable for the council to rely on this
expert or did it become unreasonable? The answer
is no: he was a competent expert. Second, did the
expert behave unreasonably by changing his mind?
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EXPERT WITNESS JOURNAL
72
FEBRUARY 2026
