Getting experts’ joint statements right

geyre

Background

In the judgment of Master Cook in the case of Aderounmu v Colvin [2021] EWHC 2293 is another example of what can go wrong with the joint statements of experts following a joint discussion.

  1. [The psychiatrists] produced a joint statement dated 22 December 2020. Unfortunately, this is an overly-lawyered document comprising 34 questions many of which had numerous sub-clauses and in places descended into cross-examination. This is not helpful to the court. A joint statement should aid the understanding of key issues and each expert’s position on those issues.
  1. The [neuro-psychologists’] joint statement dated 14 January 2021 suffered from the same vice as that of the psychiatrists; it is an overlong overly-lawyered document which asked many questions which were nothing more than a cross-examination of the experts on their respective approaches, or attempts to advance the arguments on behalf the parties’ respective positions. Of the 41 questions posed only about 2 were of assistance to me in understanding the issues on which the experts agreed, the issues on which they disagreed and the reasons for their disagreement.
  2. Parties should resist the approach that has been taken in this case.  A joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties’ respective cases. Written questions should be put to experts under CPR 35.6 within 28 days of the service of an expert’s report.

A similar problem arose in the earlier case of Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 where the judge said:

34. Both experts provided clear reports that were easy to read; thorough and attractively presented with useful diagrams attached. However, their joint statement was disappointing. It was 60 pages long and did not fulfil the purpose identified in CPR 35PD 9.2 “to agree and narrow issues”. It seemed to me that the difficulty may have arisen not through the fault of the experts but through the way in which the agendas were drafted. I say “agendas” because, for reasons not explained to me, there had apparently been two separate agendas that the experts were required to consider. Both involved repetitive questions for the experts and far from producing a focus on the real issues, the result was a document that served only to confuse rather than assist.

35. I can see no good reason why the parties were unable to agree a single agenda in this case. Perhaps greater input from Counsel may have assisted. …Frankly, the approach to the joint statement in this case achieved nothing of value.

There is, in these cases, criticism of the lawyers involved, but it is the experts who are responsible for producing, and signing off on, a joint statement.  The experts must therefore understand what it is they are supposed to be doing and take responsibility for it, and if necessary take action to remedy any difficulties that arise.

The procedural framework

Let’s go back to what the purpose of the joint discussion is supposed to be.  The Practice Direction to Part 35 of the Civil Procedure Rules is quite clear and provides:

9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:

(i) the extent of the agreement between them;

(ii) the points of and short reasons for any disagreement;

(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and

(iv) any further material issues not raised and the extent to which these issues are agreed.

The purpose of doing this is to assist the court at the trial, and the parties both at the trial and in the lead up to it, in understanding precisely what expert issues remain to be determined, and where each expert stands on those issues on which they do not agree.

Therefore, left to their own devices the experts should, in the course of the joint discussion, ascertain, and set out in the joint statement, their points of agreement, the points of disagreement and the reasons for such disagreement, and whether anything could be done to resolve the remaining areas of disagreement between them.  This should be relatively brief.  Both experts have already produced written reports in which they should have explained their positions in some detail, so that the joint statement should only need to set out the positions briefly. 

To make matters as clear as possible to the lawyers, it is necessary to separate the points of agreement from the points of disagreements – it is surprising how many joint statements fail to do this – numbering each point, and, in relation to the points of disagreement, summarising in relation to each one the basis for the disagreement.  In doing this, what is written must be easily understood by a lawyer, and in terms of the audience’s medical expertise it may be useful to imagine that the experts are addressing year 1 medical students.  In this way, the minds of all involved in the litigation can be focussed on the reasons why the experts have been unable to agree, which will form the principal area of investigation (and cross-examination) at the trial.

The Practice Direction contains this further important statement:

9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.

And related to this the Guidance for the Instruction of Experts in Civil Claims (the Guidance) provides:

77 Lawyers must not instruct experts to avoid reaching agreement on any matter within the experts’ competence.

The joint statement is the experts’ document, and not the lawyers’.

To reinforce these points, the joint statement is required, by para 80 of the Guidance, to include:

1. A brief re-statement that experts recognise their duties AND

2. An express statement that the experts have not been instructed to avoid reaching agreement on any matter within their competence.

Agenda

In Aderounmu v Colvin and Saunders it was the lawyers who contributed to creating the ‘over-lawyerly’, unhelpful and overlong joint statement.  Lawyers do have a role in relation to producing an agenda. The Practice Direction provides:

9.3 Where the experts are to meet, the parties must discuss and, if possible, agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone [my emphasis]

It seems likely that the agenda(s) provided to the experts in these cases did not help the experts focus on the issues needing to be discussed – identifying the areas of agreement, disagreement and the reasons for disagreement – and that they were in the form of cross-examination, and therefore quite probably contained leading questions hostile in tone.  It is not the purpose of the joint discussion to deal with such questioning and it is not the role of the joint statement to record answers to such questions, although there may be some scope for this separate from the joint discussion in Questions to experts on their reports under CPR 35.6.

The Guidance provides in relation to the drafting of an agenda:

75 Primary responsibility for preparation of the agenda should normally lie with the parties’ solicitors

76 The agenda should indicate what has been agreed and summarise concisely matters that are in dispute

An agenda may be used quite properly by lawyers to ensure that the experts address the issues which require to be addressed for the purpose of the litigation, and to ensure that any legal tests relevant to that are properly considered and applied.  That is an important role for the agenda.  For example, if the experts have failed properly to address the standard of proof or the Bolam test or rules of causation in relation to damages then the agenda should seek to get them to do so.

If the expert is uncomfortable because of the length of an agenda or the nature of its questioning or the hostility it demonstrates, then they should raise their concerns with their instructing solicitor, referring if they wish to the Practice Direction and the Guidance.  If the solicitor fails to address this adequately, whether the agenda is one produced by them or the other side or both sides, then the expert can resort to seeking directions from the court as to whether the questions should be answered, under CPR 35.14. (For more on seeking directions from the Court, see Section 4.6.2 in Writing Medico-Legal Reports in Civil Claims – an Essential Guide – Eyre and Alexander.)

While the experts must ensure that the joint statement deals with the matters set out in 35PD 9.2 (above), they should also (and if they consider it appropriate, separately within the joint statement) answer the questions in the agenda(s) unless an order is obtained from the Court releasing them from having to do so.

Learning points

The joint statement is an important document. It ought to be possible to read it and to understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned.

Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground. (Yip J in Saunders v Central Manchester University Hospitals above)

Many difficulties with the joint statement can be avoided if the expert follows this guidance:

1. Prepare for the meeting, by:

  1. Identifying the issues between the experts – both legal and expert
  2. Analysing the evidence which relates to the expert issues
  3. Preparing a process for the meeting to ensure that the functions of a joint discussion are properly and fully addressed – areas of agreement, areas of disagreement and reasons for disagreement.

2. Remember that the precise wording of the joint statement is crucial.  The audience is made up of lawyers, to whom words matter, and the expert is working in the legal arena and therefore needs to apply the appropriate legal tests accurately.

3. Produce in the joint statement a document that a non-medically qualified person can read in order to understand the key issues and each expert’s position on those issues.

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The court expert and conflicts of interest

geyre

It is unlikely that much time is spent thinking about conflict of interest when instructing medical experts to give evidence in court. Recent court decisions however are a reminder of the importance of addressing whether an expert has a conflict of interest and the importance of doing so both for the expert and the instructing lawyer.

CPR 35 provides little on this topic. CPR 35.3 (1) states only that “it is the duty of experts to help the courts on matters within their expertise.”  A conflicted expert cannot of course help the court.

35PD goes a little further.

2.1 provides that “expert evidence should be the independent product of the expert and influenced by the pressures of litigation“.

2.2 goes a little further in providing that “experts should assist the court by providing objective, unbiased opinions…“.

It is however in the Guidance for the Instruction of Experts in Civil Claims that the expression “conflict of interest“ is first mentioned.

The appointment of experts

16 Before experts are instructed or the court’s permission to appoint named experts is sought, it should be established whether the experts:

…

e. have no potential conflict of interest.

23 They should also inform those instructing them (whether on initial instruction or at any later stage) without delay if:

…

d. the instructions and/or work have, for any reason, placed them in conflict with their duties as an expert…

The experts’ declaration, as set out in 35PD 3.2 states that an expert’s report must contain a statement that the expert

a) understands their duty to the court and has complied with that duty; and

b) is aware of the requirements of part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014

Therefore an expert report properly completed, whilst not stating that the expert has no potential conflict of interest, will include a statement by the expert that he is aware that it should be established whether he has any potential conflict of interest.

In clinical negligence claims in the High Court it is interesting to note that the standard directions state that:

Experts shall, at the time of producing their reports, produce a CV giving details of any employment or activity which raises a possible conflict of interest.

What is a conflict of interest?

“A conflict-of-interest (or, perhaps more accurately, a conflict of interests) will arise when an expert witness’s opinions are either (1) actually influenced, or (2) capable of being influenced, by his personal interests. The former state is obviously rare and where done consciously involves considerable moral turpitude. The latter state is more common and involves no wrongdoing.“ (Bux v GMC [2020] 1EWHC 762 Mostyn J)

An example of an actual conflict of interest, therefore, would be giving evidence in favour of a litigant with whom the expert is in a relationship. In contrast, the appearance of a conflict of interest would arise where that relationship ended years earlier, leading to the need to investigate whether the expert was actually conflicted.

Professional guidance

Professional bodies will generally have their own rules about conflicts of interest. In the GMC‘s Guidance on Acting as a Witness in Legal Proceedings at paragraph 23 it is stated:

If there is a possible conflict of interest – for example, you have been professionally or personally involved with one of the people involved in the case in the past, or you have a personal interest in the case – you must follow our guidance on conflicts of interest. You must also make sure the people instructing you, the other party and the judge are made aware of this without delay. You may continue to act as an expert witness only if the court decides a conflict of interest will not affect the case.

The GMC‘s Guidance on Conflicts of Interest relates to clinical rather than expert practice but nonetheless is useful.  

12 You should:

a) use your professional judgement to identify when conflicts of interest arise

b) avoid conflicts of interest where possible

c) declare any conflict to anyone affected, formally and as early as possible, in line with the policies of your employer or the organisation contracting your services

d) get advice about the implications of any potential conflict of interest [and] make sure that the conflict does not affect your decisions about patient care.

13 if you are in doubt about whether there is a conflict of interest, act as though there is.

Bux v GMC [2021] EWHC 762

Dr Bux accepted instructions to prepare medicolegal reports in respect of holiday sickness claims from a firm of solicitors in which his wife was a partner. He did so on what was described by the judge as “an industrial scale“ earning £123,000 in fees from 684 cases in under two years, the fees being paid into a company in which he and his wife were the shareholders. He was paid for the reports regardless of the outcome of the case and so had no financial interest in the litigation process beyond a reasonable expectation that he would be paid for any professionally prepared part 35 compliant reports that he provided. His wife was a salaried partner receive no bonus dependent on the outcome of her cases. Nonetheless it was held that this raised serious doubts as to the independence of the expert’s reports.

While it was not a case of actual conflict of interest, Dr Bux acted in a state of conflict of interest. The failure to disclose the relationship between Dr and Mrs Bux:

‘was sufficient to entitle any defendant, or its insurer, to query the transparency and objectivity of the process whereby the reports are produced. It raises at the very least a legitimate concern that the production of the reports may be driven by less than an objective and properly considered process.

Any such suspicion is likely to be fortified by the formulaic nature of the reports themselves, the virtual absence of any expert analysis, and the wholesale failure to comply with Part 35 and the relevant Practice Direction.’

In other words there was a real risk of a conflict-of-interest and it had to be disclosed. No disclosure was made and therefore, taking into account these matters and a number of other failings including in the reports, the striking off from the register of Dr Bux was upheld by the High Court.

EXP v Barker [2015] EWHC 38

The court deprecated a medical expert in this case who, it transpired (in the course of cross-examination) had worked for a considerable time with the party in his favour he was giving evidence and who the expert regarded as having “guided and inspired his practice“. Worse still it was the party who had recommended the instruction of the medical expert, whom he knew well, to act on his behalf.

The loss of independence and the conflict of interest which could well arise in this situation, and most certainly the appearance of a loss of independence or conflict of interest, fatally damaged the credibility of the expert in the litigation. Although the report was admitted in evidence by the court, it was in fact disregarded for these reasons.

Secretariat v A Company [2021] EWCA Civ 6

In this case an international consulting firm provided expert witness services for opposing sides in two separate but closely related international construction arbitrations, in one acting for A Company in a claim brought by a subcontractor and in the other acting for a project manager in a claim against A Company. The expert was a different entity in each case although within the same group of corporate entities. The court granted an injunction preventing the expert in the second claim acting against A Company for whom the related expert entity already acted.

The court avoided deciding whether it can be implied in law that an expert has a fiduciary duty owed to the party from whom it initially took instructions which prevented it from getting into a situation where a potential conflict of interest could arise. Instead, the case was decided on the express terms of the retainer between the expert and the company, which was construed to prohibit conflicts of interest throughout the duration of the engagement as expert. The two experts, although different entities, could possibly find themselves supporting opposing positions on the same or substantially similar issues.

The court in this case also stressed that the existence of conflict of interest is a matter of degree and the courts observation in the present case should not be taken as concluding that the same expert cannot act both for and against the same client in relation to a different project.

From these cases one can conclude as follows

  • The existence of a conflict of interest by an expert does not necessarily disqualify him, or render his evidence inadmissible, or of no weight. (EXP v Barker_
  • It is desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence but such disinterest is not automatically a precondition to the admissibility of his is evidence (Factortame (No 8) [2002] 3WLR 1104
  • But failure to disclose a potential conflict of interest can be a serious breach of professional rules (Bux v GMC).

Conclusion

1. Although there is no express rule to that affect, an expert witness has a legal duty to disclose to those instructing him, and the court, a potential conflict of interest, that is, all facts and matters which might reasonably suggest a conflict of interest

2. An expert must not leave undisclosed any conflict of interest which might bring into question the suitability of their evidence as a basis for the court’s decision

3. Disclosure must be made promptly, preferably on instruction, but certainly when facts giving rise to a potential conflict of interest become apparent

4. It is important to disclose the facts if only to explain why there is in fact no conflict of interest

5. A failure to comply with the duty of disclosure is like to have very serious consequences, both within the litigation and professionally

6. The terms of engagement of an expert should address this issue by including a term such as “the expert confirms that they are not conflicted to act as an independent expert in this matter”.

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