Not many court experts, signing the statement of truth at the end of their reports, are thinking about the clang of the prison gates.  The recent decision in Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392 is a reminder that they should.

The medical expert revised a prognosis in his medical report by adopting his instructing solicitor’s suggestion, and without re-examining the client or exercising any professional judgment.  There was no clinical justification for the amendment.  It was not perhaps surprising that the judge had held that the expert was reckless as to the truth of the revision and as to whether that would mislead the court, and for that contempt of court passed a sentence of 6 months imprisonment but suspended it.

The Court of Appeal was asked to find the sentence unduly lenient.  It did.

It was emphasised that making a false statement verified by a statement of truth is a serious offence.  Doing so deliberately or recklessly would usually result in committal to prison, and the offence remained serious even if there was no direct financial motive on the part of the expert for the false statement.  In the case of an expert witness, it made little difference whether the false statement was made deliberately or recklessly.

The maximum sentence for contempt is 2 years’ imprisonment.  A sentence “well in excess of 12 months” was the starting point.  Early admission and co-operation, genuine remorse and previous unblemished professional record were all relevant, but breach of the court’s trust by a professional witness could be expected to result in severe sanctions.  That experts in this position will have brought ruin upon themselves was not a reason not to impose a significant custodial sentence.

The Court of Appeal indicated immediate custodial sentence would be the norm, and there would have to be powerful factors to justify suspending the sentence.

The expert in this case was not re-sentenced as the guidelines now available by this judgment were not available when he was sentenced.  However it was made clear that now an appropriate sentence would be an immediate custodial sentence significantly longer than six months.

Conclusion

An expert must take the statement of truth required at the conclusion of an expert report for any court or tribunal extremely serious.  Although rarely read, as it is pasted into a report or appears in the template, it does bear reading.  To recklessly or deliberately misstate matters in the report in breach of that statement of truth is likely to result in an immediate custodial sentence, as well as terminal consequences for the expert’s professional status.

Similar weight should also be given to the sign-off of a joint statement following a joint discussion between experts.  In civil claims this requires a brief restatement that the experts recognise their duties to the court and that they have not been instructed to avoid reaching agreement on any matter within their competence. An intentional or reckless false statement is likely to have similar consequences.

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