We have trial by judge, not by expert

Armstrong & Anor v First York [2005] EWCA Civ 277 (17 January 2005)

In an accident case, judges find they cannot reconcile evidence given
by expert and the sole evidence of fact, and only one of the two is
truthful in fact. The judge cite from another case:

"Where a single expert gives evidence on an issue of fact on which no
direct evidence is called, for example as to valuation, then subject
to the need to evaluate his evidence in the light of his answers in
cross-examination his evidence is likely to prove compelling. Only in
exceptional circumstances may the judge depart from it and then for a
good reason which he must fully explain. But if his evidence is on an
issue of fact on which direct evidence is given, for example the speed
at which a vehicle was traveling at a particular time, the situation
is somewhat different. If the evidence of a witness of fact on the
issue is credible, the judge may be faced with what, if they stood
alone, may be the compelling evidence of two witnesses in favour of
two opposing and conflicting conclusions. There is no rule of law or
practice in such a situation requiring the judge to favour or accept
the evidence of the expert or the evidence of a witness of fact. The
judge must consider whether he can reconcile the evidence of the
expert witness with that of the witness of fact. If he cannot do so,
he must consider whether there may be an explanation for the conflict
of evidence or for a possible error by either witness, and in the
light of all the circumstances make a considered choice which evidence
to accept. The circumstances may be such as to require the judge to
reach only one conclusion. "

When facing the same situation, in a case, a judge says: "There is no
rule of law or practice in such a situation requiring the judge to
favour or accept the evidence of the expert or the evidence of a
witness of fact". The judge must consider whether he can reconcile the
evidence. he goes on to say: "If he cannot do so, he must consider
whether there may be an explanation for the conflict of evidence or
for a possible error by either witness, and in the light of all the
circumstances make a considered choice which evidence to accept."

The learned judge give another precedent case to support his
judgments: "Where there is a straightforward factual dispute whose
resolution depends simply on which witness is telling the truth about
events which he claims to recall, it is likely to be enough for the
judge (having, no doubt, summarized the evidence) to indicate simply
that he believes X rather than Y; indeed there may be nothing else to
say. But where the dispute involves something in the nature of an
intellectual exchange, with reasons and analysis advanced on either
side, the judge must enter into the issues canvassed before him and
explain why he prefers one case over the other. This is likely to
apply particularly in litigation where as here there is disputed
expert evidence; but it is not necessarily limited to such cases."

The judge say: In my judgment there is no principle of law that an
expert's evidence in an unusual field – doing his best, with his great
experience, to reconstruct what happened to the parties based on the
secondhand material he received in this case – must be dispositive of
liability in such a case and that a judge must be compelled to find
that, in his view, two palpably honest witnesses have come to court to
deceive him in order to obtain damages, in this case a small amount of
damages, for a case they know to be a false one.

He get the conclusion: "We do not have trial by expert in this
country; we have trial by judge." cited from Liddell v Middleton
[1996] PIQR P36,at page 43, by Stuart Smith LJ. In the last resort it
is for the judge – or it may be the jury in a criminal trial as the
triers of fact – to determine, on the balance of probability, on all
the evidence they receive, where the probabilities lie. It may be that
they are impelled to that conclusion when they are weighing two
different types of evidence, one from extremely honest- appearing
witnesses of fact and the other from an expert doing his best in his
particular field of expertise.

Another judge say：If a judge is convinced, on proper evidence, that
the claimants are in fact telling the truth and are not fraudulent,
that conviction may well be a reason for declining to accept expert
evidence to the contrary effect.

Appeal dismissed.