The ‘Robust’ Approach of the Judiciary Towards Sub-Standard Expert Evidence

Last week, retired Lord Justice of the Court of Appeal, Sir Peter Gross, addressed an audience on the importance of maintaining high standards of expert witness evidence at the annual Bond Solon Conference.[i]

This is becoming an increasingly popular topic for discussion, especially among practising and non-practising members of the judiciary.

In edition 290 of BC Disease News (here), for example, we reported the views of Davies LJ and Rt Hon Lord Neuberger of Abbotsbury, both of whom gave speeches on the quality and reliability of expert evidence at the Expert Witness Institute (EWI) Annual Conference, back in September 2019.

In the near future, the EWI is expected to launch a new ‘Certified Member’ scheme, with Spencer J predicting that the ‘gold-standard’ expert directory engendered will be recognised by the judiciary and instructing lawyers as the authoritative source of ‘talent ... education, training, understanding and experience’.

Sir Peter was, as others before have been, triggered by the conduct of Dr. Asef Zafar in a recent personal injury claim.

In October 2018, the general practitioner was held in contempt of court and handed a six-month suspended sentence for manufacturing a false statement at the command of instructing solicitors, as verified by a statement of truth – click here to read our analysis of the Court of Appeal’s guidance on committal proceedings.

He considers that the fate of Dr. Zafar is testament to the Courts’ new ‘robust’ approach to fraudulent and dishonest claims.

Experts who fall ‘short of the mark’ are, more than ever before, susceptible to having their reports ruled ‘inadmissible or of little or no weight’, facing negligence claims advanced by instructing parties, finding that they have been reported to a regulatory or disciplinary body, or suffering costs sanctions in litigation.

In ‘extreme cases’, such as the Zafar case, experts can anticipate that defendant parties (including indemnifying insurers) will pursue them as contemnors or refer them to the Director of Public Prosecutions (DPP) for perjury.

The former Court of Appeal judge went on to emphasise that experts should, as the Civil Justice Council’s (CJC) Guidance suggests, ‘resist any pressure, whether subtle and unstated or express’, to avoid becoming a ‘mere mouthpiece’ for the instructing party.

The duty of experts to help the court overrides any duties owed to instructing and paying parties, elsewise the judicial process could be ‘undermined’. Effectively, a judge should be able to ‘trust’ advice, even if a judge ‘strongly’ disagrees with it – the expert must pass a test of ‘independence’ and ‘impartiality’:

‘Would I give this evidence if given the same instructions by another party?’

 

[i] ‘Expert who “fall short” face “much more robust” response’ (11 November 2019 Litigation Futures) <https://www.litigationfutures.com/news/expert-who-fall-short-face-much-more-robust-response> accessed 13 November 2019.