Duties of an Expert Witness: The Importance of Knowing Your Limits

The recent case of Samantha Thimmaya v Lancashire Teaching Hospitals NHS Foundation Trust [2020] sounded an alarm bell for all medico-legal experts, after an £89,801.68 wasted costs order was imposed on an expert whose negligent advice led to a claim being discontinued at trial. Mr Jamil, a Consultant Spinal surgeon instructed by the Claimant in a clinical negligence claim, was “wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case” when cross-examined at trial. As he was the only expert the Claimant was able to rely on, she was left with no choice but to discontinue her claim in the middle of the trial. The Defendant Trust then pursued a wasted costs order against Mr Jamil, on the basis that:

1. he had not been competent to act as an expert in the case generally, as he had shown himself to be incapable of explaining the Bolam test;
2. that he had only personally carried out the operation in question twice; and
3. had he not provided his negligent advice, it is unlikely that the Claimant would have proceeded with her claim, which would have avoided costs unnecessarily being incurred on both sides.
   ‍

The judge had some sympathy with Mr Jamil, who had experienced psychiatric ill-health during the course of the case – although that too ultimately counted against him, as she found that if Mr Jamil was too unwell to engage in clinical practice, he should also have withdrawn from his medico-legal duties. The judge therefore concluded that the Defendant should be awarded their costs from the point Mr Jamil ceased clinical practice. In reaching her decision, the judge made the following observations:

 • Mr Jamil demonstrated that he was not aware of the test for breach of duty at the time of joint statements, when he referred in that statement to “best practice”, which is not the appropriate test. At trial, Mr Jamil again showed himself to be unaware of the relevant test;

• This was a significant failing which amounted to “improper, unreasonable, or negligent conduct” such that the jurisdiction to make a wasted costs order was engaged;

• From reading the papers, it seemed unlikely the Claimant would have succeeded with her claim. Therefore, had Mr Jamil stopped acting in the matter, it may very well have been that no other expert would have supported the claim, at which point the Claimant would have discontinued the claim and the Defendant would not have incurred costs thereafter;

• The consequences in this case were that the Claimant had lost the entitlement to have her case tried on its merits. Considerable court time was wasted, and a public body (the Defendant) had incurred significant costs;

The notion that experts can be penalised for failing in their duty to the court is not new. In 2011, the Supreme Court judgment in Jones v Kaney waived experts’ immunity from being sued for negligent advice, and although instances of being sued are (and quite rightly should be) rare, experts are habitually warned by solicitors to remember their overriding duty to the Court. As observed by the judge in Mr Jamil’s case, this does not mean that the court system will be devoid of “bad” experts. It is not unheard of for reports to be poorly written or for experts to stray beyond their expertise, and there is a role for lawyers in ensuring that any experts instructed are properly qualified for the task, that reports are properly scrutinised and that they are fit for purpose before being served. However, the consequences for those experts held to account can be severe, as Mr Jamil found to his detriment, so it is important to reinforce some key principles for those engaging in medico-legal work.

After Jones v Kaney, experience dictates thatexperts are most likely to be at risk of being penalised where they:
‍

1. Fail to review a joint report and ensure that it reflects their views prior to signing it, so that . significant concessions are inadvertently made in the litigation, as in Jones v Kaney; and/or

2. Fundamentally change their position.
   
   

Paragraph 2 of The Practice Direction to Part 35 of the CPR provides:

2.1. Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation:

2.2. Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.

2.3. Experts should consider all material facts, including those which might detract from their opinions.

2.4. Experts should make it clear –

(a) when a question or issue falls outside their expertise; and

(b) when they are not able to reach a definite opinion, for example because they have insufficient information.

2.5. If, after producing a report, an expert's view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.

It is, of course, perfectly acceptable for an expert to become aware of new material which causes them to alter their opinion. This is distinct from a ‘fundamental’ change indicative of them not having properly applied their minds to their initial advice or, more critically, advising on a subject which was beyond their expertise in the first place.

There are also regulatory implications for experts who stray beyond their expertise. GMC proceedings against Professor Roy Meadow established in 2006 that no expert has immunity from disciplinary proceedings before the national regulator, in relation to his or her conduct as a medico-legal expert, even where no issues arise as to their clinical competence. A few years ago, I represented a client who gave medico-legal evidence in a murder trial which was judged to be of such poor standard, a subsequent GMC investigation found him to have behaved “recklessly” – he was suspended from clinical practice for 12 months.

None of this is designed to discourage properly qualified experts from engaging in medico- legal reporting. It is a fundamentally important aspect of many areas of litigation: both lawyers and courts need good experts for the proper administration of justice. Civil and regulatory penalties are exceedingly rare, so in most instances no consequences will follow from writing a report which is not up to scratch – not to mention the lawyers’ role in ensuring that their experts’ reports meet the necessary requirements before they see the light of day. The message is to ensure you do not overstretch yourselves and that you remember your primary duty is to the Court, no matter how fervently the party or lawyers instructing you might want to win their case. You are there to provide independent expert advice, not to fight a party’s corner. Remain objective, consider all the evidence thoroughly, and if you think there is evidence you have not seen, ask to see it. Most importantly, be prepared not to assist if you are asked to advise on a topic which is beyond your expertise. Follow these principles and you will not only avoid criticism, your services will more likely remain in demand.

‍