The naughty step – another expert criticised for not complying with his duty.

Background:  The previous blog referenced Rich v Hull and East Yorkshire Hospitals NHS Trust [2015] EWHC 3395.  The judge was disappointed with aspects of one of the experts’ involvement in the case.  The expert’s evidence when seeking to explain in cross-examination an inadequate answer to a question in the agenda for the joint meeting of experts was described by the judge as “disingenuous”, and his claim to have omitted words from another answer to a question at the joint meeting as “not [having] been satisfactorily explained”.

The judge’s finding:  The judge referred to the expert’s obligations to the court as explained in The Ikarian Reefer[1] and concluded that the expert had not given “objective and independent evidence to the Court on a number of important matters”.

The judge’s sentence:  The expert got off light.  No referral to the GMC was made.  Apart from the professional embarrassment consequent on the experience in court and the publication of the judgment, the judge directed that he should be sent copies of the judgment and the relevant extract from the White Book [a practitioner’s book containing the Civil Procedure Rules (“CPR”) and notes of explanation] which summarised the guidance in The Ikarian Reefer.  With due respect to the judge, I would suggest that even more useful would be to send the expert a copy of Part 35 of the CPR, the Practice Direction to Part 35 and the Guidance for the Instruction of Experts in Civil Claims 2014, all of which the expert would expressly have claimed to have followed in the required statement in his report that he, like all experts –

(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.   (PD35 3.2(9))

He should also purchase a suitable guide or manual for the use of experts giving evidence in civil claims which sets out clearly their duties and obligations.

The good news: For the party that instructed the expert the good news was that the judge concluded that the breach of duty of the expert was not so serious as to oblige him to disregard his evidence altogether but he did take the breaches into account in evaluating the reliability of his evidence overall.

The moral:  These days a professional offering his or her services as a court expert has no credible excuse for not understanding fully the duties and responsibilities of an expert and complying with them.

[Who or what is medico-legal minder?  Terms and conditions apply]

[1] [1993] 2 Lloyd’s Rep 68