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Issues often raised by experts involved in litigation or potential litigation
  • Mar 10, 2020
  • Latest Journal

By Alec Samuels

The expert may find himself in an exposed and vulnerable situation. He may be criticised by the solicitor instructing him, by the expert and the solicitor on the other side, in cross-examination by counsel on the other side, and even by the judge, whose criticism may appear in the judgment and the published law report. Anything and everything may be criticised. For example, it may be alleged that  report is too long, or too short, or too complicated, or too simple, or there is a lack of structure, or analysis, or sources, or literature, or reasons.  

There is no prescribed form for the report, though model forms are available from the expert institutions.  Circumstances differ so much. Every case is unique. The following recommendations are diffidently proffered: Think of the “audience”, namely the expert on the other side, the lawyers involved, the lay people involved, the judge, and even the public and the press should the case attract public attention. Set out the instructions. State the facts. State any assumptions made. Give an appropriate chronology. Always maintain scientific and technical accuracy and mode, supported if necessary in language intelligible to the ordinary layman.  Describe the investigation, calculations and analysis. Acknowledge the work of the “team”. Indicate the limits of the expertise claimed. Indicate the limits of current research on the topic. Cite the literature. State the findings  In quantum distinguish between the calculable and the incalculable. Give the reasons. Give the conclusions. A simple, or at least a straightforward, summary may well be helpful for everybody. The mass of scientific and technical detail may well be better placed in an appendix or annex.  

Following the joint meeting of experts the resultant joint report should concentrate upon the outstanding points of difference.  

The child was very seriously injured in a clinical negligence case. The issue was quantum. The experts simply assumed that the claimant would return home and did not analyse the alternatives, such as a boarding school, paid for either by the parents or the local authority. The judge was unimpressed  Harman v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662, QB.  

Following a serious accident, out of which questions arise as to the capacity of the injured claimant, the experts involved must ensure that they are fully supplied with all the relevant material, in view of the importance of the issue of capacity to be considered by the judge  Loughlin v Singh [2013] EWHC 1641,
QB.

Proving cognitive impairment injury requires expert evidence of a specialist nature. Allegations of malingering likewise require expert evidence of a specialist nature  Williams v Jervis [2008] EWHC 2346, QB, and [2009] EWHC 1837, QB.

The expert must always be aware of the limitations upon his role. He must not pontificate or lecture.  He must not act as an advocate.  Matters of credibility and reliability of the lay witnesses are matters for the judge. The expert confines himself to his expertise, his direct knowledge, and the information put to him  Often he has to deal with hypotheses. Findings of facts are for the judge. Ali v Caton [2013] EWHC 1730, QB. Walls v London Eastern Railway [2014] EWHC 4724. Sanderson v Sonae Industria (UK) Ltd [2015] EWCA Civ, QB.  Mohidin v Commissioner of Police for the Metropolis [2015] EWHC 2740, QB.  Garcia v Associated Newspapers [2014] EWHC 3137.  Stagecoach Great Western Trains v Hind and Steel [2014] EWHC 1891, TCC.  

A host of issues arose in the leading case Re W (a child) (non-accidential injury: expert evidence) [2005] EWCA Civ 1247 and [2007] EWHC 136 (Fam). The expert acted as a decision-maker rather than an expert witness. He did not explain how he reached his diagnosis. What were assumptions, deductions and hypotheses rather than scientific facts was not made clear. Inconsistencies in the alleged facts were not dealt with. The report did not indicate the range of professional opinions on the issues, and the generally accepted view in the speciality. The reason for deference to the opinion of a colleague was not given. The desirability or even necessity for a second opinion because of the limited knowledge and experience of the expert was not raised.  

A relationship with those involved in the case
The integrity, independence and impartiality of the expert must always be protected. The situation may be delicate or potentially delicate. There may be very few experts in this speciality, and they all knoweach other. There may be very few solicitors engaged in the speciality.  Perhaps the expert always acts for solicitor A, who always acts for claimants. The expert may know solicitor A well; perhaps they are fellow members of the local golf club; perhaps they are social acquaintances or friends. If there is any risk of challenge or criticism on the basis of bias the expert should simply declare the “relationship” such as it is in the report, and declare his independence and impartiality in the normal way. Any challenge or criticism from any source will then need to be proved, mere suggestion will not suffice.  
The defendant, a radiologist, was sued for clinical negligence. The expert for the defendant was well known to the defendant, had worked with him and collaborated on research papers, yet none of this was disclosed. The judge rejected the evidence of the expert on the ground that independence and objectivity had been undermined by the failure to disclose the close connection  Exp v Barker [2017] EWCA Civ 63, [2017] Med LR 121.

Conflict of interest
There is no reason in principle why an expert should not act for a defendant even though he has previously acted in another matter for the claimant. But if the expert had acted for the claimant in an allied or a very similar matter to the current matter, especially if there were a risk of disclosure of confidential information previously acquired, then the expert should disclose his previous involvement and if necessary stand down. However arising out of a fire the defendant instructed the expert on one aspect and the claimant instructed the expert on a quite different aspect, so there was no conflict  Wheeldon Brothers Waste Ltd v Millenium Insurance Co Ltd [2017] EWHC 218 (TCC).  


Alter the report
Sometimes the expert is asked by the solicitor to withdraw part of the report or alter something in the report. Having prepared the report in the normal proper professional manner, the expert should refuse to accede to the request. If, however, an obvious error is pointed out, or fresh or further information is supplied which casts a different light on things, then the expert should prepare a supplementary report explaining the extent to which he has changed his mind and the reasons.  

A reduced fee
The expert should expect, indeed require, a proper fee.  He is an independent professional of standing, a considerable amount of work will be required, of a proper standard, and the fee is normal and appropriate. There may be room for some negotiation, but only insofar as ascertaining the amount of work required and the appropriate fee. A request from the solicitor to do the work “on the cheap” should be rejected. The fact that the solicitor may be having difficulty raising the money from the client or a sponsor or crowd funders or the Legal Aid Agency or an insurer or whoever is a problem for the solicitor, not a problem to be passed to the expert. The expert who succumbs and does work “on the cheap” lays himself open to criticisms, that he did the work too quickly, or carelessly, or delegated to too junior staff, or did not check or double check the results of analysis.  

Resort to the Judge
If the expert is concerned about a matter he should raise it with the instructing solicitor. Perhaps the instructions are unclear or incomplete or defective. If necessary he should raise the matter discreetly with his professional association. As a last resort, and at any stage in the proceedings, he is always entitled to refer to the Judge for advice and guidance and if necessary a judicial ruling. A good expert creates a good working relationship with everyone else involved in the case, and very rarely finds himself unable satisfactorily to resolve any professional matter.  

Experts under the Judicial Microscope, Sir Ernest Ryder, talk delivered to EWI 27 September 2018.

© Alec Samuels