THE CHIPS ARE DOWN FOR EXPERT WHO FAILED TO DECLARE AN INTEREST

In The Ritz Hotel Casino Ltd -v- Al Geabury [2015] EWHC 2294(QB) Mrs Justice Simler DBE was critical of an expert who failed to declare an interest in a case. The expert had become a treating doctor.

“It was no answer that this did not affect his written evidence because he had no conflict at the time of his report, since the duty is a continuing one,”

THE CASE

The claimant claimed £2 million on a dishonoured cheque which had been used to pay gambling losses. The defendant’s defence was that he suffered from a gambling addiction and, for various reasons relating to that addiction, was not liable to pay the debt. The role of the expert witness was clearly important and both parties called doctors.

KEY POINT

  • The defendant’s expert did not appear to understand the role of the expert and appeared to be more of an advocate for the defendant.
  • That expert’s credibility was further undermined by failing to disclose (until after two hours of cross-examination) that he had recently been involved in treating the defendant.
  • There is a substantial conflict between the role of a treating doctor and an independent expert.
  • The duty of an expert to report matters which could give rise to conflicts is a continuing one.

THE JUDGMENT ON THE EXPERT EVIDENCE

  1. The Defendant relies on the report and evidence of Dr Richard Taylor. He is a consultant forensic psychiatrist to the CNWL National Problem Gambling Clinic and is a specialist in this field of work. Dr Taylor’s conclusion (at paragraph 7 of his opinion) is that the Defendant suffers from a gambling disorder which is “persistent, in early remission and severe according to DSM 5 criteria”. Dr Taylor subsequently accepted that this categorisation was a “numerical error“, and should have been ‘moderate’ on the basis of the number of criteria evidenced.
  2. The Claimant relies on the report and evidence of Dr Needham-Bennett, a Consultant General and Forensic Psychiatrist. Dr Needham-Bennett provided a heavily qualified report, concluding that on the Defendant’s account of the facts, he suffers from a mild gambling disorder.
  3. Shortly before trial the experts met to identify issues of agreement and disagreement. Both experts significantly qualified their role in the joint report at paragraph 9 as follows:
“We agree that the diagnoses we have made, as is usually the case in psychiatric practice, depend on to a significant extent on self-reporting from Mr Al Geabury. In addition to self-reported information we agree that information from all sources for example the evidence relating to Mr Al Geabury’s gambling behaviour from casino documents will inform our diagnosis. We agree that it must ultimately be a matter for the court to make findings in relation to the facts where these are in dispute. The extent to which we are justified in making differing interpretations in this case will depend on the findings of the court where the facts are in dispute.”
  1. Despite expressing that view Dr Taylor was surprisingly reluctant to accept the proposition that when various assumptions he made about the Defendant and his gambling were shown to be false and were factored into the analysis, they necessarily affected his diagnosis. He appeared to have a limited understanding of the duty owed to the court as an independent expert and the impression he gave was of somebody arguing the Defendant’s case rather than expressing an independent opinion (this view was reinforced towards the end of cross-examination by a late disclosure of his conflict of interest, as I shall explain). For example, he maintained a characterisation of the Defendant’s gambling on 19/20 February 2014 as “frenzied and uncontrolled” even after seeing the video evidence of the gambling, and when challenged adopted an unrealistic interpretation of the words “frenzied and uncontrolled” which were favourable to the Defendant. Moreover, it appeared that he had developed a thesis about the Defendant’s condition and dismissed or minimised facts that were inconsistent with this thesis or alternatively, where the factual material was not available to support his thesis, relied on stereotypical views about how a person with a gambling disorder might behave.
  2. I was particularly concerned by Dr Taylor’s failure to disclose (until after two hours of cross-examination when it was too late) a fundamental conflict of interest, contrary to the last line of his expert’s declaration. The conflict was that he was not simply reporting as an expert, but in the last month he had attended on the Defendant as a treating doctor on four occasions. It was no answer that this did not affect his written evidence because he had no conflict at the time of his report, since the duty is a continuing one, and it did affect him at the joint experts’ meeting and in preparation of the joint report (which also contained the declaration) and when giving oral evidence (in which he referred to the declaration). I was surprised too by Dr Taylor’s suggestion that it did not matter because there was no material in the subsequent consultations which affected his view. This is simply no answer to what is a substantial conflict between a role as a treating doctor and an independent expert. The information communicated to him by the Defendant as his client could not be tested, and could not with any certainty be separated in his own mind.
  3. By contrast, Dr Needham-Bennett was impressive. He was not challenged in cross-examination because in reality, there was no basis for doing so. He was careful and methodical in his assessment of the factual situation. Where he felt able to do so, he expressed conclusions that reflected the available evidence and on the basis of the Defendant’s self-reporting, concluded that there probably was a mild gambling problem. However, he correctly recognised the need to qualify his opinions as indicated above, and where new factual evidence emerged during the trial and assumptions about the evidence were put to him, that adjustments would have to be made in relation to his opinion. Ultimately Dr Needham-Bennett confirmed that if the evidence base as regards matters dependent on the Defendant’s self-reporting was removed (as false or unsubstantiated) he would be “probably tearing up my existing report and starting again“. He said “I think I would have to revise it down and say that he did not meet the threshold for a gambling disorder.”

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