Alan Jervis B.A. Hons., F.C.I.I., M.A.E., Chartered Insurers

Member of the Academy of Experts

The primary duty of an expert witness is to assist the court by providing an objective unbiased opinion within their area of expertise.

As is the case of any subject-matter requiring expert testimony, insurance experts bring to the fore their knowledge and experience of what is not always understood to be a very specialised field. Insurance is a necessity of life, but also a most complex discipline, that protects individuals and businesses. Insurance protection is offered and underwritten, essentially, based on and according to the dual principles of risk assessment and spread of risk.

What is often misunderstood is that just as there is a significant body of statutory law and judicial precedent that can be identified as ‘insurance law’, there is also a vast area of industry practice, custom and usage that cannot be found in any text, statute book or case decision. Accordingly, an insurance expert witness has a most important role to play in insurance disputes.

There is no better example than the specialised field of marine insurance which is – more often than not – governed by time honoured, unwritten custom, practice and rules that are often inextricably linked to another area of specialised discipline, known as international trade, commerce and logistics. Marine insurance cannot therefore exist in a vacuum and a marine insurance practitioner must know how the world of commerce ticks and functions as an essential part of the insurance calling in this field.

In what ways, therefore, can an insurance expert assist a court?

  • An insurance expert can:
    Identify the principles and practices specific to a particular market (e.g. London, UK provincial, Continental, North American by way of examples)
  • Explain the processes underlying the placement of the risk.
  • Identify what underwriting criteria is or is not material to a risk.
  • Advise what information is commonly found in specific insurance questionnaires within the different classes of insurance.
  • Identify and explain insuring conditions common to most policies.
  • Likewise, identify varying policy language offered by competing insurers and competing markets.
  • Describe common extensions of cover as well as less common extensions.
  • Discuss common policy exclusions as well as less common exclusions.
  • Explain specific practices that are not widely known in the industry. (e.g. the ancient doctrine or principle of General Average)
  • Offer historical context to current insurance practices and the use of specific insurance policy language that may further assist a court in its understanding of the insurance issues that are under review.
  • Define the role of different players in the insurance market.
  • Depending on the individual expert’s field of specialization, define and explain underwriting practices, claims handling and adjusting practices, broker and agent practices.

Like any expert witness that is retained by solicitors and their clients, it is not sufficient for the expert witness to rely on their knowledge and experience of the particular insurance field in question. There is a ‘Part Two’ to this calling. Hence, being an ‘expert’ is an important discipline in its own right. But, as in the case of all expert witness work, an insurance expert must have the requisite ‘expert’ training and must discharge their duties in accordance with the legal practice rules relating to expert testimony in the applicable jurisdiction. The expert must also be impartial. In this regard, in expressing an opinion, the expert must offer a balanced opinion by addressing all possible aspects of the issues at hand, not just the ones that are most favourable to the client.

The right insurance expert with the right knowledge and experience of the specialised fields of insurance in dispute and with the right expert-based training, can offer a valuable contribution to a court’s or to a tribunal’s understanding of insurance industry practice.

In my 43 year experience as an insurance practitioner and in my 20 year experience as an expert witness, I have, unfortunately, seen so many cases in litigation where the parties chose not to retain an insurance expert witness when the issues in dispute warranted expert testimony to provide a better understanding of practice in the industry.

Alan has been retained as an insurance expert witness in over 45 cases in 3 Continents. Alan has offered expert testimony at trial and arbitration.