Expectation of an expert witness

“There is a worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties. Practice Direction 35 makes the position very clear.”

This was the damning analysis of the Honourable Mr Justice Fraser earlier this year, in Beattie PassiveNorse Ltd v Canham Consulting Ltd (2021). Far from being an idiosyncratic viewpoint, Justice Fraser’s stance is representative of some very real concerns about the quality of experts being appointed, their knowledge of their role, and the extent to which their instructing lawyers are educating them properly.

Expert duties:

It is all too easy to get swept up in the drama and pace of litigation, particularly where a defendant and/or their legal team are determined to win at any cost. A good expert must do all they can to resist what at best can be infectious over enthusiasm and at worse overt pressure to take a certain stance, and instead ensure that they are adhering to their duties, which are clearly stipulated in the Civil Procedure Rules (“CPR”). The Practice Direction which accompanies CPR 35 – the specific rules governing expert evidence and behaviour – makes it crystal clear that:

• Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation and that the expert's overriding duty is to the court and that this overrides any duty to his or her client.

• Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.

• Experts must consider all material facts including those which might detract from their opinions.

• Experts must make it clear when a matter falls outside their sphere of expertise and/or they are unable to reach a definitive opinion

• Experts must make it clear immediately to the Court if they change their opinion on any material matter

• Experts must make it clear which of the facts relied on in a report are within the expert’s own knowledge

Examples of failings:

The tragic case of Z v (1) University Hospitals Plymouth NHS Trust, (2) RS (& Others) (December2020) related to a Claimant who had severe and irreversible brain damage following cardiac arrest in November 2020. Here, the expert concerned was woefully underprepared, failed to interrogate his sources or indeed consider the salient documents, and was, unsurprisingly in light of all these deficiencies, unreliable and inconsistent when giving oral evidence. The Judge, as a result, concluded that he “did not think [he could] place any weight on [the expert’s] evidence” for the family.

In a case from earlier this year, Dana UK Axle Ltd v Freudenberg FST Gmbh [2021] EWHC 1413 (TCC) Joanna Smith J excluded, during the trial itself, the entirety of the defendant's technical expert evidence due to "the full and startling extent of the Experts' breaches of CPR 35".

The Judge was not only damning of the experts but of their legal team:

“The establishment of a level playing field in cases involving experts requires careful oversight and control on the part of the lawyers instructing those experts; all the more so in cases involving experts from other jurisdictions who may not be familiar with the rules that apply in this jurisdiction. For reasons which have not been explained, there has been no such oversight or control over the experts in this case.”

This is therefore a reminder to all experts that your lawyers should be giving you appropriate guidance on your duties to the Court; if they do not then you should speak up. They should also be instructing you in a timely fashion, making you aware of relevant deadlines, providing you with all documentation rather than cherry picking and remaining objective in their instructions to you. Please challenge them if not and make it very clear if you feel remotely uncomfortable with any task you are being asked to perform.

The Consequences of failure to adhere to rules:

Few cases illustrate more aptly the severe consequences of failing to adhere to an expert’s duties than Liverpool Victoria Insurance v Khan [2019] EWCA Civ 392, [2019] 1 WLR 3833, on appeal from [2018] EWHC2581. The case relates to a personal injury matter where the Claimant was involved in a road traffic accident in December 2011. The GP expert had a thriving private practice in medico-legal work, conducted at various locations. This practice involved frequent examination of claimants in low-value personal injury claims. He produced around 5,000 reports a year. He assessed the Claimant for a medicolegal report about ten weeks after the accident.

The Claimant informed his solicitor that he was unhappy with the prognosis set out in the report. At the request of the solicitor, the GP produced an amended report without further examining the Claimant, and apparently relying on notes which had been incorporated in the original report. The revised report bore the same date as the original and gave no indication that there had been a previous report or any revisions made. However, it differed very significantly.

Particularly pertinent for the readership of this article is the gravity placed by the Court on the fact that the GP expert had signed a statement of truth on the new report – which all experts are required to do upon completion of an expert report – verifying what in fact was a report containing untruths. The Court reminded us that: ‘contempt of court involving a false statement verified by a statement of truth... is always serious, because it undermines the administration of justice’.

Crucially for this readership, the Court does not distinguish between intentional and reckless statements: experts will ‘usually’ be ‘almost as culpable’ for making false statements ‘recklessly’ as they would be for making statements ‘intentionally’.

How to avoid making errors:

Get the basics right:

• A CV that accurately reflects experience and is neither over long nor out of date

• Prove your independence and that you have no theories or practices you are especially wedded to

• Ensure when you accept an instruction that you were in practice at the time in question

• Confirm that you have expertise/experience/ qualifications in the relevant field; simply do not accept instructions which put you in difficulty because you are not well qualified or knowledgeable enough to deal with them. Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] Is an excellent example of where an expert was caught out in this manner at the Oral evidence stage, which was found “unimpressive”. The Judge opined that: “there was a failure on his part to address the questions that he was being asked: I had no doubt, that this was a deliberate ploy on his part to avoid answering the questions, rather than any kind of misunderstanding on his part as to what he was being asked, and the technique was adopted by him because of the difficulty he found himself in, in addressing the questions”.

Know the legal test:

Thimmaya v Lancashire NHSFT + Jamil (30 January 2020), illustrates the consequences where an expert is cross-examined and cannot explain the legal test in question – the Bolam test in this instance, in the course of a clinical negligence matter. Very sadly, the expert in question’s understanding was impaired by mental health issues that he was struggling with. As such, he should have ceased acceptance of medicolegal work, and it was ruled improper, unreasonable, negligent to have persisted. A third-party costs order was made for £88,000 in the Defendant’s favour against the Claimant’s expert.

Ensure your report is top quality:

• Get dates/quotations right

• Be up to date

• Aim for balance in approach

• Defer to those in other fields where appropriate

• Sensible citation of literature

• Don’t go overboard in volume of literature

• Be relevant

• Ask yourself “what are the key issues for the judge to decide in this case at trial?”

Do not ignore key facts or issues:

This entails:

• Taking a realistic approach to the facts of the claim

• Dealing with both/all versions of the facts;

• Not ignoring difficulties (e.g. in the medical records);

• Being very aware that the judge is the arbiter of fact;

• Not being railroaded by your opposite number;

• Having concrete examples/literature to back up viewpoint;

• Returning for further discussion another day if need be;

• Not being over the top or overly passionate or spirited in your arguments.

Proper Joint Statement:

• Consider taking the initiative in recording the discussions;

• Give detailed reasons for opinions expressed;

• Make concessions if appropriate (but explain your reasoning)

Finally, should you be one of the few to be privileged enough to attend a Trial then please ensure that you:

• Are a team player;

• Know the papers/issues/medical records;

• Know the literature;

• Listen properly to questions;

• Maintain equilibrium (especially with the judge);

• Work out what the judge wants/likes;

• Don’t attempt to be an advocate.

Expert Indemnity

It is crucial that you hold appropriate insurance in the event that you are brought into a complaint or claim.

Lockton offer comprehensive cover for those who do expert witness work. Lockton is one of the leading advisors on professional indemnity insurance. We have unparalleled knowledge of the coverage available under professional indemnity insurance policies, and strong relationships with a wide array of top professional indemnity providers. But our expertise does not stop with insurance. We make it our business to understand the specific risks and challenges inherent in your specific area of expert witness practice.

Typical limits of indemnity range from £100,000 to £5,000,000 with higher limits available on request.

Hopefully, from both your perspective and that of your clients, you will never face a claim, but if you do, it will give you significant peace of mind to know that you hold adequate indemnity.