WHEN AN EXPERT FAILS TO DISCLOSE THAT THEY KNOW THE PARTIES

A recent high profile criminal case has identified the major problems that can arise when an expert called to give evidence has failed to disclose that they have had previous dealings with the parties.  Here we look at how the civil courts deal with these issues in three recent cases decided this year.

KEY POINTS

  • The duty is on a party calling an expert (and the expert themselves) to disclose whether they have any relationship with the party calling them.
  • A failure to do this could lead to evidence being inadmissible.
  • Even if the evidence is admitted the credibility of the expert is badly damages.

PRACTICE POINTS

  • Ensure that, when an expert is in fact independent and is fully aware of the role of an expert.
  • If there is a previous course of dealing between the instructing party and the expert ensure that this is disclosed in full.

THE RULES

CPR 35.3(2) makes it clear that the expert’s duty to the court overrides any obligation to the person from whom experts have received instructions or by whom they are paid.  However neither CPR 32 or the related Practice Direction imposes an express duty on an expert to disclose that they were known to a party beforehand.   Many of the professional guides to expert witnesses impose such an obligation. Further it is common for court orders to require experts to disclose conflicts, so in the case of EXP -v- Barker [2015] EWHC 1289 (QB) the court order, granting permission to call experts,  included an order:

“Experts will, at the time of producing their reports, incorporate details of any employment or activity which raises a possible conflict of interest.””

IT IS HIGHLY UNWISE, HOWEVER, TO FAIL TO DISCLOSE ANY RELATIONSHIP

The EXP case is probably the best example of the dangers. Despite the order made the defendant’s expert failed to disclose a long-standing and professional relationship with one of the defendants, omitting joint-papers they had written together from his c.v. which was placed before the court.

THERE IS NO OBLIGATION ON THE OPPOSING PARTY TO SEARCH THIS CONFLICT OUT

In the EXP case Mr Justice Kenneth Parker roundly rejected a submission that it was the job of the claimant to notice, and enquire, about professional relationships.

“49. Mr Angus McCullough QC, on behalf of the Defendant, suggested that the respective CV’s should have put the Claimant, or at least her legal representatives and proposed experts, on notice that there was likely to have been some sort of connection, and that they ought then to have pursued the matter with the Defendant.
50. I do not accept that suggestion. In my view, the burden was fairly and squarely on the Defendant, in particular on Dr Molyneux who was to be the Defendant’s key (in the event, sole) expert witness at the trial, to state frankly, with adequate particulars, the nature and extent of any connection between Dr Barker and Dr Molyneux.
51. The Defendant knew the details; it is both fair and economical that the Defendant should disclose them. The Claimant should not be expected to engage in the time consuming detective work, the output of which might be incomplete or inaccurate, in order to ascertain the full picture bearing on Dr Molyneux’s independence as an expert witness.  Furthermore, if the Claimant had been given full particulars, the issue of Dr Molyneux’s independence could have been explored, as it should have been explored, before the trial began. “

THE BURDEN IS PLACED SQUARELY ON THE PARTY CALLING THE EXPERT

Failure to make early disclosure [of a pre-existing relationship between an expert and a party] may lead to the kind of chaotic situation that has arisen in this case, where the nature and extent of the conflict became clear only in the course of the trial and led to a submission, after all the evidence had been heard, that the evidence of the Defendant’s expert, upon which the defence in the event exclusively depended, should be ruled inadmissible by the Court. Failure to make early disclosure, particularly of an obvious conflict, also tends to raise a natural suspicion that the default was not inadvertent, and to reinforce the Court’s concern that the witness has, most exceptionally, become so compromised that the evidence must be altogether excluded”

THE MAJOR IMPACT UPON THE EXPERT’S CREDIBILITY

This failure played a major part in the judge’s assessment of the credibility of the witnesses.

  1. Where the core issue in a case turns, as it does here, on the court’s ability to evaluate the competing and finely balanced medical judgements of rival experts, the court’s confidence in the independence and impartiality of the respective experts must play an important role. I have to say, with considerable regret, that by reason of the matters set out earlier in this judgment my confidence in Dr Molyneux’s independence and objectivity has been very substantially undermined.”

OTHER EXAMPLES: EXPERT FAILING TO DISCLOSE HE HAD STARTED TREATING A PARTY

Similar points arose  in The Ritz Hotel Casino Ltd -v- Al Geabury [2015] EWHC 2294(QB), the judge noted (of an expert called on behalf of a claimant).

  1. 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.

AN EXPERT REFERRING TO THEMSELVES IN THE THIRD PARTY

In Hayes -v- South East Coast Ambulance Service NHS Foundation Trust [2015] EWHC 18 QB. HH Judge Coe QC (sitting as a High Court judge) considered the issue of a former treating doctor of the claimant reporting on behalf of the defendant.

  1. When he was cross-examined Professor Barnes confirmed that he did not feel there was any conflict in acting as the Defendant’s expert despite the fact that he had been Mr Hayes’ treating physician at some point. He had no memory of seeing him and it was a long time ago. He defended the fact that he had commented on breach of duty despite his remit as a causation expert on the basis that he was asked to comment on it. He said that the significant portion of his report dealing with non-compliance with medication was important to set the background because it was relevant to an understanding as to how Mr Hayes arrived at the position he was in. He agreed that the poor compliance was not relevant to the treatment and outcome on the night other than because bronchodilators tend to work well in brittle asthma. He said that the records show poor compliance over the years, but he agreed that they do not show any record of poor compliance between 2003 and 2008 and there is no record of any doctor expressing any concern about Mr Hayes’ compliance. He agreed that in the circumstances suggesting that the basic problem was non-compliance in his causation report was probably badly phrased.

CREDIBILITY AFFECTED

Again this had an impact on the judge’s view in relation to the credibility of the expert.

  1. I had some concerns about Professor Barnes’ evidence. It seemed to me that by failing to specifically point out that he had been Mr Hayes’ treating doctor (indeed referring to himself in the third person), by commenting on breach of duty and by devoting so much of his opinion to the issue of compliance he gave the appearance of trying very hard to support the Defendant’s case rather than assisting the Court as an independent expert should.

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