31 March 2026
What is the role of experts in modern dispute resolution?
In this lecture, Sam Townend KC explores the use and treatment of experts in formal dispute resolution processes in this country, suggesting that there is something of a crisis of confidence in the use of experts in litigation today, identifying present challenges and possible solutions.
Expert evidence is now an essential part of most complex dispute resolution processes. The role of experts has expanded, in many areas practitioners have moved from treating the giving of expert evidence as a side-line to professional practice, to their full-time practice. Alongside the professionalisation of expert evidence has come increasing judicial and public scrutiny of their role, and an increase in procedural rules and guidance. Starting with the seven principles set out by the late Sir Peter Cresswell in The Ikarian Reefer the formal procedures applicable to experts in litigation are now more detailed than ever before, with a profusion of judicially endorsed guidance, some of it arguably contradictory.
There remains the ever present tension between the duty to the paying client and the duty to the court or tribunal, giving rise to suggestions in some quarters of increasing partisanship in practice and overuse or discredit of experts and their evidence whether in the Technology and Construction Court, experts associated with the Letby case, and the use of unregistered psychologists in Family Law cases.
From his position as former Chair of the Bar Council and a leading Silk in Construction Law, in both litigation and arbitration, Sam Townend KC suggests a general review is needed of the use of experts in litigation, with the aim of simplifying procedure and practice, taking a consistent approach across jurisdictions, tackling issues of privilege in expert produced materials, how and when experts should participate in the dispute resolution processes, as to the proper involvement of lawyers in the expert evidence process, and including some lessons that courts may learn from arbitration.
Ultimately, Sam asks, is the binary characterisation of experts as either saints or sinners either realistic or helpful to efficient dispute resolution?
