A senior judge has said too many people regard being an expert witness as a “nice retirement number” and could be seen as dinosaurs.
Lady Justice Nicola Davies said she believed medical experts who left clinical practice more than five years ago should not be doing the job.
She said it was a “false point” for solicitors to instruct an expert who had not been in practice “for some time” as “ultimately it will undermine the credibility of the expert in the eyes of the court”.
Addressing delegates at the Expert Witness Institute annual conference in London yesterday, Nicola Davies LJ said: “You don’t want to be called a dinosaur, but that is the risk you take”.
Asked by a medical expert in the audience to define a “sell-by date” for experts, the judge said her starting point was to “see when the NHS practice ended” and what the doctor had been doing since then.
Nicola Davies LJ, who represented Harold Shipman at his criminal trial when in practice, warned that concerns over the expertise of experts could find themselves into court judgments.
She said solicitors could just Google the expert and he or she would be “cross-questioned” about the comments.
The judge said a more “difficult and nuanced point” was whether an expert was partisan, because this may only emerge when they gave evidence.
“In this case, you must write to your solicitor in very clear terms indeed why you think the expert is partisan.
“If, when responding to an expert’s report, a partisan point is taken for which you think there is no evidential basis, flag it up and you can flesh it out in a letter to your instructing solicitors.
“Speaking as one who practiced for many years in a field that is knee-deep in experts, I was grateful for all the information I could get.”
Earlier Mr Justice Martin Spencer – who chairs the institute’s board of governors – had equally harsh words for expert witnesses who “were undoubtedly experts in their field but no good as expert witnesses because they have had no training and do not understand their duties to the court”.
He said he had “come across just such an expert earlier this year”, referring to his judgment this summer in Arksey v Cambridge University Hospitals NHS Foundation Trust,
In his ruling, the judge described consultant neurosurgeon David Sandeman as “embarrassing” and said he made “continual apologies” and used “an expletive” while giving evidence.
Martin Spencer J told the conference that Mr Sandeman had not only failed to read the claimant’s medical reports, but also the report of his opposite number.
“Experts should be able to demonstrate not only credentials in their field but credentials as an expert.
“How is it that in 2019, in an important High Court medical negligence case, that we can have an expert witness who does not even begin to understand his duties as an expert?
“As a judge, it’s not enough for me to have an expert who knows everything about neurosurgery. It’s useless if he hasn’t done his job as an expert.”
The judge said a medical report was not ready to be exchanged with the other side until it had taken into account the other medical reports, pleadings and witness statements.
After exchange, the expert needed to remain open-minded and “flexible”, bearing in mind the reasons the other expert had given for their opinion, so the issues where there was disagreement could be narrowed down.
“In this case, that just never happened.”