Category: Guidance

The importance of an expert being (and appearing) objective

geyre

Background

In Palmer v Mantas [2022] EWHC 90 the judge was faced with a conflict of opinions between experts as to the consequences of the index event on the Claimant.  The judge dealt first with the psychological evidence.  While commencing with a finding that the expert was helpful and gave genuine and honest answers, and indeed was sympathetic towards the claimant, the judge went on to criticise her.  He pointed out that her first report was ‘littered with judgemental and rather scathing comments’ and that the expert’s ‘references to the Claimant being ‘self-pitying’ and ‘histrionic’ (which she conceded in oral evidence is a term that she would not have used to describe a man), and the raising of ‘possible Social Services risk assessment’ required to ensure the Claimant’s unborn child was properly safeguarded, were unnecessary and inappropriate.’

The expert, it was noted, stated that she liked to use ‘straightforward language’ and that some of her criticisms of the Claimant were stated to be out of genuine concern for her.  However the judge found that ‘the way she expressed herself when criticising the Claimant…went beyond language which is appropriate for an expert to employ and suggests a level of unconscious bias, even where there is a lack of belief in the Claimant’s case, which she undoubtedly did find (and was entitled to do so)’.

In the judge’s view, the expert also made the mistake of placing undue over-reliance on a single historical event reported in the medical records of consuming copious amounts of wine.  This was an event to which the Claimant was unable to provide a response, and in any event post-accident she suffered from alcohol intolerance as one of her symptoms.  The judge was surprised also that the expert relied upon one event, a failure by the Claimant to volunteer that she may have been tired because she had been to Paris for the weekend shortly before her appointment, as being an example of potential dishonesty.  These two incidents were supportive of the finding of unconscious bias on the part of the expert.

The judge found ‘an absence of balance’ on the part of the expert in her analysis of the Claimant’s personnel records in failing to draw attention to the many positive aspects of her work record and the views of her colleagues.

Finally, only during the expert’s evidence in court did she confirm that she deferred to the Claimant’s expert’s analysis of the Claimant’s pre-accident health and that expert’s assessment that the Claimant was presently very unwell and incapable of work.

The upshot was that, while the judge accepted that the expert was not intentionally biased against the Claimant, her unconscious bias was such that where there were any differences between her evidence and that of the Claimant’s similar expert, the judge preferred the Claimant’s expert’s evidence.

The Defendant’s problem did not end there.

The Defendant’s second expert, a pain consultant, fared little better.  The judge recognised that it was open to an expert to disbelieve a Claimant’s account of their symptoms in the context of their overall medical records and any other evidence available, but to do so ’needs necessarily a strict and close adherence to their Part 35 duty which should not be departed from, either intentionally or recklessly.’  He went on to criticise the expert for being ‘over-zealous in his use of language from the outset’, a concession made by the expert himself in evidence who admitted that on re-reading his reports he had ‘winced’ and that he thought he ‘could have been a little bit more reflective and kinder and provided a little bit more range of opinion’. 

He also back-tracked on his description of the Claimant in surveillance film as being ‘more or less housebound’ to assert that ‘she was more housebound than most people of the Claimant’s age’.  He inaccurately asserted that another expert had attributed all of the Claimant’s ongoing complaints to brain injury, when he had not, as the expert had to concede in evidence, and inaccurately suggested that the opposing pain consultant had based his opinion on that other expert, when in fact three alternatives had been given for the Claimant’s condition, only one of which was based on brain injury.

The Defendant’s pain consultant had a practice of not considering the Claimant’s clinical records ahead of his assessment of (and consultation with) the Claimant.  This is a practice one comes across from time to time by experts who assert that they do not want to be influences or biased at interview from having read the history first.  However as a method it provided no opportunity for the Claimant to comment on the contents of these medical records, particularly set against a relatively brief medical history taken orally from the Claimant by the expert.  He also failed to make reference in reviewing aspects of the evidence to anything which might have been supportive of the Claimant’s case.

The judge concluded that there was a significant departure from the expert’s Part 35 duty and a lack of necessary balance.

Independence and objectivity

A court expert is under a duty to help the court on matters within the expert’s expertise (CPR 35.3(1)) and this can only be achieved by being independent and objective.  The principle was stated in the Ikarian Reefer (1993) which predated the CPR but on which much of the CPR was based, and which is still good law, thus:

‘An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.’

The Guidance for the Instruction of Experts in Civil Claims provides at para 11:

‘Experts must provide opinions that are independent, regardless of the pressures of litigation.  A useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by another party.’

Professional rules may also re-enforce this approach.  For example the GMC Guidance for acting as a witness in legal proceedings states at para 6:

‘You must make sure that any report that you write, or evidence you give, is accurate and not misleading.  This means you must take reasonable steps to check the accuracy of any information you give, and to make sure that you include all relevant information.’

Para 13 provides:

‘You must give an objective, unbiased opinion and be able to state the facts or assumptions on which it is based.’

Recently in Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392 it was emphasised that an objective, unbiased opinion must be based on a consideration of all material facts, including those that might detract from the opinion and are not in the best interests of the party who has instructed them.

Learning points

  1. There is no place in an expert’s report or evidence for emotive or loaded language, let alone potentially sexist language.  A report should not contain speculative comment, without putting such comment in its true context and with the facts which support it.  Such language is likely to be seen as indicative of bias, intentional or otherwise.
  2. Even when the expert forms a strong view that the Claimant is lying or manipulative or simply unreliable, the expert must approach the evidence objectively, setting out the material evidence, putting it in context, being sure also to set out any evidence which could arguably lean the other way, and explaining the reasoning which supports the conclusion reached.
  3. The expert should be extremely careful in picking on isolated events in the history to support a more general proposition.  Such an isolated event might be supportive of other evidence, but used on its own the expert may well give the impression of bias, or indeed of carelessness, unless the expert can make the case that although it is an isolated event it is nonetheless, for good reason, an event the expert considers themself entitled to draw appropriate conclusions from.
  4. It is also poor practice for the expert to rely on an event, or an entry, in the records which is generally adverse to the Claimant without giving the Claimant the opportunity to comment on it or to explain it.  If it is the expert’s practice not to read the records until after interviewing the Claimant, then this is a potential weakness in the opinion-making process unless a subsequent opportunity is given to the Claimant to comment before any conclusion is reached by the expert.
  5. Balance is called for in the expert’s approach to the evidence at all times.  An absence of balance is indicative of bias, even be it unconscious bias.
  6. If an expert changes their opinion, or modifies it significantly, subsequent to providing a written report, then this should be notified to their lawyers at the earliest opportunity, for them to inform the other side.  The report should be amended or a further report prepared which explains the reason for the change of opinion (see Guidance para 66).  Giving a different or modified report while giving evidence in court is likely to undermine the expert’s evidence more generally and can be suggestive of previous bias or lack of care.
  7. An expert will undermine their evidence if they inaccurately state the opinion or the evidence of another expert in the same case.  This is either indicative of lack of care or of bias.

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The court expert and conflicts of interest

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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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