Expert Evidence - Lessons Learnt From 2022 - Part 1
Expert Evidence - Lessons Learnt From 2022 - Part 2
Développement en droit 1 février 2023 1 février 2023
In the concluding instalment of their two-part series, Marc Harries and Emma Hague of Clyde & Co’s Expert’s Subject Matter Group cover five more important judgments that both solicitors and experts ought to be aware of.
The Issue – The Scope Of A Medical Expert’s Duty.
“The issue therefore is whether the scope of the expert’s duty to the claimant extended to protect the claimant from the risk of an adverse credibility finding, or a finding of dishonesty. Without hesitation, my answer to that question is that it did not.”
The claimant had been diagnosed with leukaemia and brought a claim against his employer alleging disability discrimination. Liability was dealt with as a preliminary issue and a single joint expert instructed to report on the claimant’s medical condition. The claimant’s claim was dismissed; it being held that the claimant had been misleading, untruthful, difficult, and evasive.
The claimant alleged that the reason the tribunal found him to have been untruthful arose solely due to the expert’s comments regarding his chemotherapy-related weight loss. Civil proceedings against the expert were commenced with it being alleged that the expert had a duty to protect Mr Radia’s credibility (in this case cross-referencing what Mr Radia had told him during the examination with his medical records). The judge considered whether an expert’s duty to a claimant extends to the risk of an adverse credibility finding, or a finding of dishonesty and concluded that it did not. Extending an expert's duty to the protection of a party from the risk of an adverse credibility finding would create a real conflict between the expert's overriding duty to the court and his or her duty to the party.
The Issue – The Need For Expert Evidence.
“Expert evidence is not required to resolve any of the pleaded issues.”
The claimant applied for permission under CPR 35.4(1) for each party to adduce and rely upon evidence from independent experts in the field of rolling stock dwell time, door configuration, seat configuration and rolling stock platform interface. It submitted that the technical background was so complex that explanatory expert evidence would assist the Court and was therefore required.
The decision for the court was whether expert evidence was necessary and proportionate to resolve any of the issues requiring determination at trial. After careful analysis the Judge concluded that the pleaded issues could be resolved without the need for expert evidence and the claimant’s application was dismissed.
The Issue – Waiver Of Privilege.
“In my judgment, if there is a deliberate disclosure of information by a party to its opponent, even for an interlocutory purpose, it ceases to be confidential as against that party, and hence loses its privilege.”
The claimant applied for an injunction to restrain the defendant from relying on an expert’s letter. The claimant submitted the letter contained privileged material and had been disclosed inadvertently by obvious mistake. The defendant asserted that the letter was not privileged. Some of the content of the letter brought into question the expert independence principle (it seemed to suggest that claimant’s counsel was involved in drafting the experts' joint statement). The claimant’s response was that the expert’s letter "included his comments in respect of an aide memoire [the claimant’s solicitor] had sent to him in connection with the preparation of the expert's joint statement in these proceedings".
The judge held, that privilege had been waived in the whole of the letter. It was noted that the claimant had “not (as he could have done) merely referred to the letter but had deployed its contents.” The judge continued “if there is a deliberate disclosure of information by a party to its opponent, even for an interlocutory purpose, it ceases to be confidential as against that party, and hence loses its privilege.” The court refused to grant the injunction and the defendant was granted permission to cross-examine the expert at trial.
The Issue – Was It Appropriate To Revoke Permission To Rely On The Expert?
“I have concluded that the serious transgressions by the claimants' solicitors and [the expert] are such that the court has no confidence in [the expert’s] ability to act in accordance with his obligations as an expert witness.”
Correspondence between the parties’ legal representatives indicated a likelihood that the claimants’ expert had been in communication with the claimants' solicitors during the joint statement process. Disclosure of this communication revealed an ongoing dialogue including the exchange of draft versions of the joint statement between the expert and claimants' solicitors and advice and suggestions by the solicitors as to the content. The defendant applied to revoke the claimants’ permission to rely on their expert.
The Senior Master concluded that the serious transgressions by the expert and the claimants’ solicitors were such that the court had no confidence in the expert’s ability to act in accordance with his obligations as an expert witness. In the circumstances, it was appropriate to revoke permission. “It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence.”
The Issue – What Emphasis To Be Placed On Expert Evidence.
“The expert evidence was not central to the case. The lay evidence which established that the defendant pulled out of a minor road and continued to pull out even when the motorcycle was in view and when she could have stopped was paramount.”
This was an appeal case that considered the liability of the defendant in a road traffic accident. Expert evidence had been provided in relation to road geography and distances as well as an assessment of speed. Evidence was also provided by lay witnesses as to the claimant’s speed; this was incompatible with the evidence of both experts. The judge at first instance concluded that the lay witnesses had underestimated the speed significantly.
The Court of Appeal criticised the judge’s approach to the expert evidence. There was consistent evidence from three lay witnesses who had a clear view of what had happened – the defendant’s car continued to pull out when the claimant’s motorcycle was there to be seen. The Court of Appeal found that while the expert evidence was of significance in providing evidence of the claimant’s speed, it was “not central to the case”. The evidence of the lay witnesses which established that the defendant pulled out and continued to do so even when the claimant was in view “was paramount”.
Claire Dinoff is Clyde & Co's experts subject matter group lead.