Expert witnesses who “fall short of the mark” face a “much more and properly robust” response from the courts, a recently retired Court of Appeal judge has warned.
Sir Peter Gross, who retired two weeks ago, referred to the case of Dr Asef Zafar, a medical expert given a six-month suspended sentence for contempt of court in a case brought by insurers Liverpool Victoria, as one example of the new approach.
“An expert who falls short of the mark may find their evidence ruled inadmissible or of little or no weight,” Sir Peter said.
“Quite apart from any claim in negligence which might be brought by the party instructing them, they may find themselves reported to a regulatory or disciplinary body or facing costs sanctions in the litigation.
“At the extreme end, contempt of court or referral to the DPP for perjury are also possibilities.”
Sir Peter said Dr Zafar’s contempt arose from including a false statement in his expert report, verified by a statement of truth.
“In a nutshell, at the instigation of the instructing solicitor, the expert had altered an earlier opinion by producing a later opinion significantly more favourable to the claimant client.”
Speaking at last week’s annual Bond Solon expert witness conference, Sir Peter concentrated on standards for experts – having sufficient expertise, not being partisan and only being used when they were actually needed.
He stressed that experts should not act as an advocate for their instructing party: “Rather they must, as the Civil Justice Council’s guidance stresses, resist any pressure, whether subtle and unstated or express, to join ‘the team’.
“A useful rule of thumb is to self-check and ask the question: would I give this evidence if given the same instructions by another party.
“If you cannot answer yes to that question, you cannot properly say you are independent and impartial.”
Referring to Dr Zafar, he said an expert should not be a “mere mouthpiece” for the instructing party, an approach which “undermines the judicial process”.
Responding to a question after his speech, Sir Peter said the expert’s duty to the court overrode any obligation to the paying party.
Experts were not “just another advocate” and the paying party “simply had to recognise it”.
He went on: “An advocate has to present a client’s case to the court fearlessly, but an advocate’s duty to the court overrides his or her duty to the client. So, as a judge, I would know I could trust his advice even if I disagreed quite strongly.”
Sir Peter said experts were not “immune” from the “case management revolution” of recent decades.
“The judge’s role is no longer essentially passive, in a manner analogous to a cricket umpire, confined to responding to the question ‘how’s that?’
“Instead, the judge will take a grip on the proceedings, ideally from start to finish. The essence of case management is straightforward: the identification of common ground and, conversely, the issues in dispute at the earliest practicable stage.”
Sir Peter said there had been “some suggestion” that the development of judicial primers in areas such as forensic DNA analysis, would reduce the necessity for calling expert witnesses.
“I am not convinced that this is correct. The aim of the primers is to educate, to provide judges with the tools to more readily understand areas of expert evidence, to improve their ability to probe and test the evidence. They are not a substitute for expertise.”