Being alert to potential conflicts of interest

Experts providing their services in court must be alert to the situations in which conflicts of interest arise, or may potentially arise, or in which the appearance of such a conflict might arise.  This is part of the requirement of independence on the part of an expert:

Experts must provide opinions that are independent…

Para 11 of Guidance for the Instruction of Experts to give evidence in Civil Claims (‘the Guidance’)

This requirement long pre-dated the introduction of the Civil Procedure Rules in April 1999.

In EXP v Barker [2015] EWHC 38 the court deprecated a medical expert who, it transpired (in the course of cross-examination), had worked for a considerable time with the party in whose favour he was giving evidence, and whom 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.  It must also have been extremely embarrassing, both personally and professionally, for both the expert and the clinician who suggested his instruction.

To help guard against this situation, in the High Court in clinical negligence claims the standard direction states 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.

Whether or not that direction appears in a court order, an expert should follow that guidance whenever providing a court report, and disclose anything which might raise a possible conflict of interest.

In the recent case of Secretariat v A Company [2021] EWCA Civ 6 for the first time the Court of Appeal was required to consider (1) the duties on an expert engaged on two potentially conflicting retainers concurrently, and (2) whether such duties bound all relevant entities within the expert firm. The case concerned an international consulting firm which was providing expert witness services for opposing sides in two separate but closely related international construction arbitrations, in one acting for Company A in a claim brought by a subcontractor and in the other acting for a project manager claiming against Company A.  The expert was a different entity within a group of corporate entities.  The court granted an injunction preventing the expert in the second claim acting against Company A for whom a related expert entity acted.

The question arose as to 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.  The Court avoided deciding the case on this basis, relying instead on the express terms of the retained between the expert and the Company, which construed in context were found to prohibit conflicts of interest throughout the duration of the engagement as expert.  The Court also found that the entire corporate group of expert companies was bound by that provision.

It was the overlap of parties, roles, projects and subject matter that was “all-pervasive” and gave rise to a clear conflict of interest as a result of the second expert engagement as the two experts could plausibly find themselves supporting opposing positions on the same or substantially similar issues. 

It is interesting to note that the Court also found that the conflict of interest would arise whether the expert was intended to give evidence in court or was taking a wider advisory role, while recognising that greater conflicts of interest are likely to arise where an expert had been involved in the preparation of the client’s case from an early stage.   

It was also stressed that existence of a conflict of interest is a matter of degree, and that the Court’s observations 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. 

What should the expert take away from this:

  1. An expert must be aware of the potential for a conflict of interest and if in any doubt disclose the facts on which the potential conflict could be argued to arise.

Particularly in clinical negligence claims, for a clinical expert it might be difficult to avoid situations in which the expert has some knowledge of the individuals whose conduct is under scrutiny to the Trust or hospital at which the events occurred.  There must be recognition on the part of the expert that an appearance of conflict of interest (or loss of independence) might arise, whether that is potentially favourable or unfavourable to the party being criticised.

Conflicts of interest can arise in many ways.  An expert instructed to report for the purpose of defending a claim against a health provider could find a potential conflict of interest in accepting instructions in a claim against that health provider while the first claim is continuing, depending on the circumstances of the two claims.  An expert receiving frequent instructions from the same solicitor, to the extent that that provides a significant income, could, depending on the nature of the relationship, arguably experience a conflict of interest because providing an ‘unhelpful’ report might prejudice that income stream.

2. Prompt disclosure of any such potential conflicts is essential. Ideally this should be when the expert is instructed, but sometimes such potential conflicts only become apparent at a later stage, for example when all of the medical records have been obtained. 

It is better to provide the facts which could arguably be said to raise the potential for an appearance of a conflict, and explain why in fact there is no such conflict.  For example, a clinical expert might have worked previously in a Trust or department or with a person whose actions or defaults might be the subject of the investigation, but any contact might have been fleeting or many years ago, and therefore considered by the expert as not giving rise to a conflict of interest.

3. The potential for conflicts of interest should be clearly addressed in an expert’s terms of engagement.  This may need be no more than a statement that “the expert confirms that they are not conflicted to act as an independent expert in this matter”. 

In Secretariat the expert was asked to confirm in terms similar to those above before being instructed and carried out a conflict check following which the expert confirmed that there was no conflict.  The subsequent letter of instruction confirmed that the expert would provide an unbiased opinion as an independent witness and that the expert would comply with the relevant arbitration Expert Witness Protocol, which contains requirements similar to the Practice Direction to Part 35 of the Civil Procedure Rules and the Guidance.  As a result, there was a contractual duty to avoid conflicts of interest.

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Do experts have to disclose the reasons for their opinions?

The simple answer is ‘No’.  But read on…

In the recent case of Griffiths v Tui [2008] EWHC 2268 the judge held that there is a threshold which an expert report must pass for it to be accepted as evidence in a case.  And what is that threshold?  It is to comply with the requirements of the Practice Direction to Part 35 of the Civil Procedure Rules

The contents of the Practice Direction will be well known to all experts working in the Civil Courts, and equivalent Rules will be familiar to experts in other courts.  While there is a requirement that the report is addressed to the court, that the report gives details of the expert’s qualifications, that it sets out the substance of all facts and instructions which are material to the opinions expressed or on which the opinions are based, and so on, nowhere is there a requirement for the expert to give reasons for any opinion contained in the report.  Indeed the statement of truth at para 3.3, while requiring confirmation of which facts and matters are within the expert’s own knowledge and which are not, and confirmation that the former are true, and confirmation that the opinions expressed are the expert’s true and complete professional opinions on the matters to which they refer, makes no reference to the expert’s reasoning.

It follows that an expert’s report is complete and admissible in evidence without giving any reasons for the opinions expressed as long as it complies with the requirements in the Practice Direction. 

This is at first sight completely contrary to everything that Medico-Legal Minder goes on about when training expert witnesses – identify the material facts, provide  the reasoning and state the opinion that flows from those facts and the reasoning process, because an opinion in the absence of showing the reasoning which takes one to it is without value.

In Griffiths the only expert evidence available to the trial judge was that in the claimant’s written expert report and the written answers to questions under Part 35.  There was no oral evidence from the expert, no cross-examination, and no contrary expert evidence.  The judge hearing the trial found that there were gaps in the reasoning in the report and that the report contained opinions which were what some lawyers still insist on calling ‘bare ipse dixit’, or what anyone else would call mere assertions without proof.

The judge hearing the appeal from that finding held that, while there were serious deficiencies in the report which could have caused the expert serious embarrassment had the report been challenged, it did not contain mere assertions without proof, even if the report was lacking in showing the expert’s reasoning process resulting in the opinions expressed.  The report substantially complied with the Practice Direction, which meant that it could not be characterised as a mere assertion without proof, and as it was not challenged by the defendant the judge was bound to accept it.

This case illustrates well the difference between what the Civil Procedure Rules require and what a good report must contain.  An expert, and the party on whose behalf they are instructed, can get away without providing reasoning, or adequate reasoning, in the report if the report is not challenged.  But if that report is challenged, that is most likely to be inadequate, and the expert’s evidence unsupported by reasoning provided in the report is likely to be rejected.

But why would a respectable and competent expert provide a report with an opinion without explaining to the reader of the report how the expert came to that opinion?  Only then can the reader assess the strength of that opinion, at least by way of logical analysis even if the reader lacks the required expertise to assess it as an expert of similar expertise, and compare, and weigh, that opinion against any other opinion provided by another expert on the same issue.

When providing an expert report, you must identify the material facts, and then provide the reasoning which takes the expert to the opinion.  As the maths teacher said ‘show your working’.

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