Expert Witness – Independence – Clear and Transparent Reports
This was a very unfortunate case in which the Claimant had suffered brain damage in a road traffic accident when he was 12. He was 21 when the matter came to trial and the Court was to assess damages. One of the central issues when the matter came to trial was whether the Claimant had capacity to manage his own affairs. Numerous experts were called, and the judge considered their evidence carefully before concluding that the Claimant lacked capacity.
Unfortunately in so doing the judge felt it necessary to single out the evidence of one of the Defendant’s experts, Professor Michael Barnes, who reported to the Court on the issue of the Claimant’s capacity. His concerns and conclusions about the evidence of Prof. Barnes were so stark that the judge felt compelled to set them out in a separate annex dealing solely with that expert’s evidence.
In particular the judge noted the following about Prof Barnes:
- Prof. Barnes had materially misstated the position of two other experts involved in the Claimant’s care, asserting in his written report that they agreed with Prof. Barnes, when in fact they said precisely the opposite. Under cross-examination Prof. Barnes could not explain the error, and conceded it was “embarrassing.”
- Prof. Barnes’ produced a revised report in which he changed his mind. Unfortunately and inexplicably, Prof. Barnes did not refer to his original report, or explain why he had changed his mind;
- The second report implied that Prof. Barnes had recently seen the Claimant, and that had led to his change of opinion. In fact, there was no evidence that there had been any such further meeting, and in his evidence Prof. Barnes could go no further than saying that he had intended to have another meeting.
Ultimately the judge concluded that Prof. Barnes lacked independence, and his evidence was rejected in full. The judge went so far as to set out his conclusions as to why that was in a separate annex to the judgment dealing specifically with Prof. Barnes’ approach to giving evidence.
Not that Prof. Barnes was the only party to be criticised by the judge. He also pointed out that there were at least three reports in the Defendant’s possession by March 2009, two of which asserted he had capacity, and one which stated he did not. However, despite that, the Court of Protection (that was also concerned with the Claimant’s capacity) had been asked to make findings on paper in April 2010 without sight or even knowledge of all of that (conflicting) medical evidence. The judge pointed out that this was a case where all of the reports, for and against, should have been disclosed to the Court, and that, “the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly place, must never be repeated.”
There are a number of practice points arising out of this case. First, it demonstrates that the Courts are increasingly willing to “name names” and single out inappropriate behaviour by experts. Secondly and related to that, experts simply cannot get away with anything other than full candour in relation to changes of opinion. The appropriate course here would have been to file the second report (a) pointing out the error and the change of opinion and (b) making a clean breast as to why he had changed his mind. That might well have been embarrassing and damaged Prof. Barnes’ credibility, but it would have caused nothing like the damage that Prof. Barnes did to himself by attempting to “gloss over” matters by simply not explaining his change of opinion.
Nor did the lawyers escape criticism, for holding back relevant evidence from the Court of Protection (at least in the judge’s view). It can be very difficult to know what to do with unhelpful evidence obtained in one set of proceedings when making an application in another, related matter. The best general approach in modern litigation seems to be a “cards on the table” attitude to disclosure, even if that complicates matters. The risk of a judge making adverse findings if you do not do so are simply too great. Experts should adopt that practice too; for example, an expert who is instructed in relation to one claim who knows of other, relevant evidence obtained in related proceedings may well have a duty to the Court to give a full account of what he knows and how it has, or has not shaped his opinion.