It is “unfortunately commonplace for experts to succumb to the natural tendency to put the interest of their own clients first, consciously or otherwise”, he said. The “hired gun syndrome” is “unfortunately one with which all lawyers are familiar” and perhaps an inevitable byproduct of adversarial litigation which the courts have strived to avoid by developing principles to be applied when considering the duties of experts.
The most significant concern about expert evidence relates to issues of objectivity, impartiality and independence, he said. Courts need to be “forceful” in policing the rules and taking appropriate measures where those rules are not complied with, including excluding the expert evidence, he said.Assessing the reliability of expert evidence presents “significant” challenges, he said, with a “real risk”, particularly in the area of complex expert evidence based on novel scientific theories or methodologies, the court may inadvertently admit and rely on unreliable evidence.
Mr Justice Donald Binchy agreed with both judgments, delivered this week when the COA dismissed an appeal against a judgment in favour of a couple, Patrick and Anita Duffy. They were awarded some €2 million damages after the High Court found they suffered injuries as a result of exposure to toxic chemicals present in their home at Annagry, Co Donegal, during and after the installation of spray foam installation on February 18th, 2016.
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