Category: Guidance

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

geyre

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

Better than waving a finger ….

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Sometimes it is necessary to state what should be the obvious.  So it is that Jackson LJ (of the eponymous reforms) found it necessary in the course of giving  judgment in the recent case of O’Connor v Pennine Acute Hospitals HS Trust [2015] EWCA Civ 1244 (3rd December 2015) to remind court users that a drawing or diagram is likely to be better than a thousand words or gesticulations.

In this appeal relating to surgery for a vesicovaginal fistula during which injury was caused to the left femoral nerve, the court was concerned to note that no photographs, diagrams of plans were available to show the judges “the location of the various abdominal organs and nerves and how they fitted together”. Counsel had sought to overcome this – “Mr Feeny [counsel for the appellant] valiantly did his best, by waving a finger around in the air to show us what was what.  That was hardly ideal.”  It surely must have been an interesting display of finger wagging to witness given the issues in the case.  The case was adjourned for the preparation of a proper sketch plan.

And so the court came to offer guidance for future cases, guidance which is equally applicable to an expert providing a written report in the course of, or in expectation of, proceedings:

“In any case involving medical, engineering or other scientific issues the bundle should include any necessary drawings or photographs, so that the court can readily understand the technical background and context.”

That guidance should be extended to all experts at all stages of legal proceedings, that they should provide all necessary drawings or photographs so that any user of the expert evidence and reader of the expert’s report who does not have the expert’s expertise is readily able to understand the background and context of the expert evidence, and the reasoning process from which the expert opinions come.  A photograph, drawing or plan is often worth a thousand words when it comes to trying to communicate with a lawyer or judge.  Waving a finger in the air instead is unlikely to be a satisfactory teaching method.

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