Insights into the world of the expert witness…
What does a £56million VAT dispute teach us about instructing an expert witness?
A recent decision by the Upper Tribunal goes to the heart of my expertise as a food science expert and considers when expert evidence is “reasonably required” to resolve a VAT case.
HMRC v Healthspan Ltd [2026] UKUT 00194 (TCC) is instructive to both counsel and expert witness regarding the scope, relevant and correct legal test to apply when considering using a expert witness as part of the a case. In the following article I want to provide a brief overview of the key features of the case and how the outcome should be applied to the development of expert witness reports and related instruction.
The £56 million question!
The Healthspan Limited claimed a VAT refund of over £56 million on food supplements it argued were zero-rated as "food of a kind used for human consumption" under Schedule 8 to VATA 1994. HMRC disagreed. The dispute turned on what "food" means: HMRC argued for an "ordinary person" test, while Healthspan contended the definition should be based on nutritional purpose or content.
Healthspan applied to the First-tier Tribunal (FTT) for permission to adduce expert evidence on three topics:
The scientific understanding of food
The nutritional profile of the products
The extent to which the products fit with the modern diet
The FTT granted permission on all three limbs. HMRC appealed. The Upper Tribunal set aside the FTT's decision and remade it — allowing expert evidence only on the nutritional profile limb, and only in a narrowly defined way.
What went wrong with the FTT?
The Upper Tribunal found the FTT had applied the wrong test. The FTT had asked whether the evidence would be "in the interests of justice" and whether it would "assist the tribunal" if Healthspan's interpretation turned out to be correct. That's not enough.
The correct test, by analogy with CPR Part 35, is whether the evidence is "reasonably required to resolve the proceedings". This requires a structured, disciplined approach:
"The tribunal must consider whether the evidence is necessary, whether it will assist the tribunal on a pleaded factual issue, and whether it is reasonably required to resolve the proceedings in the context of the case as a whole."
The Upper Tribunal emphasised that this is not a tick-box exercise. You can't just say "it might help" or "it won't do any harm." You must show the evidence is necessary to decide a live issue that the tribunal cannot resolve without expert assistance.
Limb 1: The scientific understanding of food — refused
Healthspan wanted an expert to explain "the scientific understanding of food." The Upper Tribunal said no. The proposed evidence was too vague and general — it wasn't tied to any specific pleaded issue. The tribunal noted:
"The limb is opaque and not rooted in the pleadings. It is not clear what specific factual issue this evidence is intended to address."
The evidence also risked usurping the tribunal's role. Defining "food" for VAT purposes is a question of statutory interpretation — a matter for the tribunal, not an expert. Broad, unfocused expert evidence leads tribunals down rabbit holes that don't help resolve the actual dispute.
Practical lesson for instructing parties: Don't ask for expert evidence on general background topics unless you can show exactly how it addresses a specific factual issue the tribunal must decide. Vague, scene-setting evidence is unlikely to meet the "reasonably required" test.
Limb 2: Nutritional profile — allowed (but narrowly)
The Upper Tribunal allowed expert evidence on the nutritional profile of the products, but only in a tightly defined way. The expert could address:
The nutritional content of the products (vitamins, minerals, macronutrients, etc.)
The physiological function of those nutrients in the human body
Whether the products provide nutritional value
The expert could not opine on whether the products are "food" in law or whether they meet any legal test. Those are questions for the tribunal.
Why was this limb allowed? Because nutritional content was central to Healthspan's pleaded case. To assess Healthspan's argument, the tribunal needed to understand what nutritional value the products actually have — and that's a matter requiring scientific expertise. The Upper Tribunal noted that expert evidence on nutritional matters is not unprecedented in VAT food classification disputes, citing cases like Arthro Vite Ltd v HMCE (1996) and Telemara Limited v HMRC [2025] UKFTT 01123 (TC).
Practical lesson for experts: Stay in your lane. Your job is to provide the tribunal with the scientific or technical information it needs to decide the case. It's not your job to interpret the law or tell the tribunal what conclusion to reach. If you stray into legal territory, your evidence may be excluded — or worse, it may undermine your credibility.
This is a major issues “true expert witnesses” can face. You have specific obligations under CPR 35 but many clients will think and will try to push you to give and opinion on the classification of the product. This is not your role. Leave such issues to potentially untrained ‘lay witnesses’ who may make such mistakes. Where possible help your client understand the difference in your role and for them to ensure they deliver a clearly defined scope of work with relevant questions.
Those early in thirties expert witness careers may feel pressured to weigh on the side of the instructing party if they are the ones paying you. Don’t. You are there to provide an independent report and must do so to have longevity in this role.
Limb 3: Fit with the modern diet — refused
Healthspan wanted expert evidence on how the products "fit with the modern diet." The Upper Tribunal refused permission. The problems:
Lack of clarity: What is "the modern diet"? In a diverse society with different ages, cultures, and socio-economic groups, there is no single pattern of food consumption.
Not rooted in the pleadings: The connection between this evidence and Healthspan's pleaded case was unclear.
Risk of distraction: The evidence risked leading the tribunal into adjudicating on the contents of a "modern diet" without helping it decide whether the products qualify for zero-rating.
Duplication: It wasn't clear what this limb would add over and above the nutritional profile evidence.
Practical lesson for instructing parties: Don't ask for expert evidence that's tangential to your pleaded case. If you can't explain clearly how the evidence addresses a specific issue the tribunal must decide, it's probably not "reasonably required."
The structured approach: a checklist for instructing parties
The Upper Tribunal set out a clear framework for deciding whether expert evidence should be admitted. If you're applying for permission to adduce expert evidence, ask yourself:
Is the evidence necessary? Can the tribunal decide the issue without it, using its own knowledge and experience?
Does it assist on a pleaded factual issue? Is there a specific factual question in dispute that the expert can help answer?
Is it reasonably required to resolve the proceedings? In the context of the case as a whole, is this evidence proportionate and genuinely needed?
If the answer to any of these questions is "no," your application is likely to fail.
The bottom line
The case has some gems of information in it as well as some concerns regarding the suggested use of more lay witnesses as an option to experts. It’s key to remember lay witness is not an expert witness and their duties to the court are not the same.
The Healthspan case is a reminder that expert evidence is a tool, not a right. It's there to help the tribunal decide factual issues that require specialist knowledge — not to bolster a party's case with impressive-sounding background material, or to tell the tribunal how to interpret the law.
If you're instructing an expert, be disciplined. Define the scope of the evidence clearly. Tie it to your pleaded case. Make sure it's proportionate. And be prepared to explain why the tribunal can't decide the issue without it.
If you're an expert, stay in your lane. Answer the specific questions you're asked. Don't stray into legal interpretation. Make sure your report is focused, relevant, and grounded in your area of expertise.
The Upper Tribunal's decision is a masterclass in proportionate case management. It's also a warning: if you ask for too much, you may end up with nothing.
SOURCES
HMRC v Healthspan Ltd [2026] UKUT 00194 (TCC) —
https://caselaw.nationalarchives.gov.uk/ukut/tcc/2026/194
Arthro Vite Ltd v HMCE (1996) VAT Decision Number 14836
Telemara Limited v HMRC [2025] UKFTT 01123 (TC)
Bottled Science Ltd v HMRC (FTT)
Civil Procedure Rules Part 35 — https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
#foodlaw #VAT #expertwitness #CPR35 #Healthspan #HMRC #tribunal #foodsupplements #nutrition #whatisfood #whatisaningrediet
Registered nutritionist for 20 years - What role of trade associations & post trial review?
I have been a registered nutritionist (RNutr) for 20 years as granted by the Association for Nutrition (AfN). I am also member of several professional bodies such as Royal Biology Society (Chartered Biologist) and Science Council (Chartered Scientist) that play a role and accredit the skills and knowledge underpinning my role as an ‘expert’ witness in nutrition science.
In a recent case (Lorimer-Wing v Hashmi [2025] EWHC 2757) expert evidence was given by a forensic accountant whoes valuation at the quantum hearing of a company underpinned an order fixing consideration of the shares in the company. In this case we consider what role a trade association and professional bodies can play in the testimony you provide as an expert witness.
The failure of the expert report
The appellant applied permission to appeal the decision of the court and issued a complaint to the expert’s professional body, the Institute of Chartered Accountants of England and Wales (ICAEW) over flaws in the respondent expert’s report.
Following the quantum hearing but before the final application the court received letters from the respondent’s expert and the ICAEW that the report was flawed. It was made clear the ICAEW had investigated the matter and had instructed another expert which contradicted the expert report. The respondent’s expert admitted his report was incorrect as found by the ICAEW and the valuation would have been markedly different.
What is the practical message here for expert witnesses?
The case highlights that the expert report must be just that an ‘expert report’ that is based on reliable data defendable under scrutiny by any party. In this case that party was not only the courts but a professional trade body that acted on evidence that was not challenged in court.
Those experts in the legal, regulatory or scientific areas of the food industry will have memberships to many organisations. These organisations will have a code of conduct, and this will include processes for acting on complaints over the professional conduct of their members.
Whilst is it’s rare that such cases fall before the courts or trade associations it is a warning to counsel that ‘expert reports’ should be made by those with training in the legal requirement and duties to the court.
This failure in the quality of the report is a thread in recent cases (Tarrant v Monkhouse [2025] EWHC 2576 (KB)) where the courts have highlighted the ignorance of some experts as to their obligations to CPR Part 35 and Practice Direction 35 and the Bolam test.
There is a lot of window shopping for experts, and you will find those that are true experts in the field would not want to risk such exposure and thus deliver an outstanding report.
Sources:
https://www.bailii.org/ew/cases/EWHC/Ch/2025/2757.html
https://www.bailii.org/ew/cases/EWHC/KB/2025/2576.html
Can I be an expert witness & business owner with a view?
This may on the outside seem like a strange question. To give some context the question is in relation to exposing your personal views and commentary on social media such as X, Instagram, Facebook and LinkedIn or even in industry publications. As my primary job is as a business owner of a food law firm I am often asked for a view on a comment, may make a post or comment on others’ views and insights.
So where does this fit in as an expert witness?
As an expert your duty is to the court, and you are expected to provide it with unbiased opinion (CPR Part 35, 2.2). If you are acting as a criminal expert, then there is a greater obligation which obliges all experts to disclose to the party instructing them anything (of which the expert is aware) that might reasonably be thought capable of undermining the expert’s opinion or detracting from their credibility or impartiality (CrimPR 19.2(3)(d)).
As such a social media post, a comment to a journalist can be used by the counsel hiring you or the other side to have you dropped from the case and any report rejected by the court on the basis of bias. Whilst it can be argued that such a weapon (Strategy?) demonstrates weakness by “the other side” as it shows they will do anything to avoid your views or report entering court at all costs. But often in law a win is a win irrespective of the truth. It’s a shame if a report cannot be considered on its own merits but we are not just talking about science, but we are talking about the law, and this results in friction in a modern world.
From the point of view of the company, body or institution that has hired you they will not want to take the risk of you being attacked as being bias in court. Thus, them may take the view to cut you loose although they will likely find your findings and report of value in the case. Consider such issues in your contract when signing up to a case and if you would and should still be paid should such issues arise.
Lessons to consider
The issue is a significant concern pre and during the engagement process especially if you’re not some retiree that has taken up exert witness work as a means of pension top up. If you are active in your field then there will be little doubt at some point you have comments about topics in the public domain.
When briefed as to the topic you have been asked to act as an expert you should consider are any post currently accessible online or upcoming questions (example conference proceedings, in review publications) that may impact your hire as an “independent” and “unbiased” expert.
Should you in reflection take the case once you have considered such issues? If in doubt raise any concerns with your potential employer. Importantly, whilst your LinkedIn in profile has been carefully screened have your posts?
Whilst your hiring partner should also do their homework to find any damaging personal or business posts the onus is also on you. Consider you contractual terms, what happens if mid-engagement (you have completed the report but not the court case yet) you make a view that opposing counsel use to have your dropped from the case. Who is liable for the loss of the expert report loss from the case (Of course there is likely significant value in the report even if not used in court) or your attendance to be in court?
To post or not to post that is the question!
As an expert that is still engaged in industry then you may become invisible without a social media presence or voice in the industry. But remember that any commentary where that comment is “opinion” may result in a loss of future hire. This potential loss must be balanced against earning a living.
What I am saying here is think about your “social hygiene”, do you need to comment? What is the benefit? Is your comment one based on fact? Is it opinion? Will it affect current or future cases?
As someone who had to learn this the hard way, I hope this post makes you just take a second to consider how important that response, article commentary may be. For some the constraints over being and unbiased expert vs. having to have an online presence may mean expert work is not for you or at least limited whilst in alternate employment.
Until next time…
Be careful how you choose your experts!
Whilst those holding themselves out as experts may get away with it online, in court when the chips are down this type of folly can result in your losing your case and the expert being held for contempt of court.
One key aspect to consider when hiring your expert is do they understand their duties to the court? Unless trained by a reputable body for experts its likely key aspects of the legal duties imposed on an expert and not fully understood.
These requirements under Part 35 of the Civil Procedure Rules (CPRs) and related Practice Direction (PD) are key to fulfilling the duties of an expert. The biggy is that your report (which includes your CV and perhaps biography) is true and is his/her independent opinion. In this article I am going to set out an example of the most serious of cases in the next few weeks some cases that are more nuanced and where many experts make errors in suggesting expertise that can impact the instructing solicitors case. Why is this of interest?
Well as an expert you may know of and have knowledge of the other sides expert. If on assessment of the bundle you see serious flaws in the other experts report or declaration of expertise, then you may want to raise this with your instructing counsel. In addition, it should educate those readers to be cautious on whom they use to support their case especially in cases straddling food science and food law which is a unique area of expertise.
Custodial sentence in cases of contempt
A statement of truth confirms the signatory to it understands that they honestly believe the facts stated in the document are true. That they make clear which facts/views are their own/others. Also, and importantly it also confirms proceedings for contempt can be brought if they sign the statement dishonestly (See statement of truth below).
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
This amended statement was implemented in 2020 following a very important case involving both counsel and the expert witness. Whilst content is not a criminal offence the result and related issue can be such as perjury or fraud. Even if not a criminal offence it is punishable by a custodial sentence.
The Key practice direction is CPR 32.14(1), which provides:
“Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
In 2019 a Court of appeal case concerning a medical practitioner (Dr Zafar) who was called upon to assess and report on an individual who was claiming compensation for a whiplash injury. Dr Zafar issued a report to the insurer stating there was no continuing evidence of continuing medical problem. The report generated using software helped the Dr produce a report within 15 minutes. The claimant complained to the solicitor that report was inaccurate; so it was requested the report was amended to add in additional symptoms which had not been apparent at the examination. The expert produced a second and materially different second report that made no reference to the 1st and both reports included the declaration of truth.
The bundle of documents for the court proceedings accidentally included both reports for which he was instructed to issue a witness statement, which was incorrect at the 1st attempt and so issued a second version again including statement of truth. As a result the insurers (defendants) in the case commenced proceedings in the High Courts against the expert seeking his committal on the basis the expert made false or reckless statements interfering with the course of justice.
The ruling of the court was 2-fold. The expert was found to have acted dishonestly as did the solicitor given the solicitor had initiated a second report to achieve a better outcome for his client. The High Court sentenced the expert to a custodial sentence of 6 months, suspended for 2 years. The solicitor was sentenced to 15 months’ immediate imprisonment.
In summary, this case should never really of happened as the historic case of the “The Ikarian Reefer” continues to provide an excellent guide for the expert as it relates to their duties and conduct before the courts.
Sources:
Liverpool Victoria Insurance Co Limited v Zafar (2019) EWCA CIV 392
The Ikarian Reefer” [1993] 2 Lloyd’s Rep 455
#foodlaw #expertwitness #DrZafar #CPR #practicedirection #court
English Tribunal Accepts the Term ‘Raw Honey’ Is Not Misleading!
In a case that made the headlines in the UK due to a judge’s reference to fictional characters from the Winnie-the-Pooh series of children’s books, the decision on the use of the term ‘raw’ as it relates to honey has significant implications for this category. The ruling goes against the view held by statutory enforcement bodies and their acceptance of industry guidance prohibiting the use of the term ‘raw’. The case has a number of interpretive effects within the meaning of the UK Honey Regulations and the institutional reluctance to engage with the latest science. What this case was about, how the court came to its decisions and the practical implications for the marketing of honey in the UK are discussed in this article.
Source: https://effl.lexxion.eu/article/EFFL/2024/4/5
Case: https://caselaw.nationalarchives.gov.uk/ukftt/grc/2024/157?query=ukftt