A leading barrister has called for a study to examine whether anecdotal evidence of abuse and misconduct by expert witnesses is on the “industrial scale” alleged by some, as funding arrangements increase the risk of malpractice.
Tim Dutton QC, a professional discipline specialist at London’s Fountain Court, who took part in a Panorama documentary exposing misconduct by expert witnesses, said in his experience “charlatan forms of behaviour” by expert witnesses is rare.
But he told the Bond Solon expert witness conference in London that anecdotal evidence from circuit judges, who routinely deal with volume low-level personal injury cases, criticised the “industrial scale” on which “so-called expert evidence” was given by doctors for claimants where there was no evidence of injury, particularly in whiplash cases.
This suggested that an expert was being repeatedly used by one side as a “hired gun” in cases that were expected to settle before trial because of costs. “In other words the expert is free to report again and again in the hope that most cases will settle,” Mr Dutton said.
He added that the problems are not likely to arise in well-financed cases, but are more likely to occur in publicly funded cases or where lawyers are working under a conditional fee agreement (CFA) or damages-based agreement. “Under-resourcing” creates risks, he said.
“Where the lawyer is working under a CFA or DBA the risks that lawyer will not discharge his duties – viz a viz the expert – are greater as the lawyer needs to win the case to be paid and may therefore be under greater pressure than in a traditionally paid case not to comply with the rules,’ said Mr Dutton.
In addition, from conversations with judges who do criminal work, he said there is a concern about “experts for hire” in cases including those involving handwriting, facial mapping, or forensics.
But he was cautious about the need for increased regulation. What is needed, he suggested, is a study under the aegis of the Ministry of Justice to discover how serious the problem is.
If after two years a study reveals that abuse is continuing and is widespread the next step, he suggested, might be to make it an offence to “knowingly to fail to comply” with the duties set out in either the Criminal or Civil Procedure Rules.
Mr Dutton also suggested the regulators of those professions from which the experts come be involved and reminded of their duties to uphold standards.
Most experts are already regulated by their professional bodies – doctors, accountants, nurses, surveyors and so on – and they have a duty to behave with integrity and uphold the dignity of their professions, he said.
“Lawyers have a duty to uphold the administration of justice. So a lawyer who gives expert evidence not in compliance with his duties under the CPR or under the Criminal Justice Act 1988 and the Criminal Procedure Rules may well be in breach of his professional duties under the SRA Code of Conduct 2011. Likewise a doctor or an accountant,” he said.
Mr Dutton suggested regulators are not seeing referrals about experts who have given bad evidence. The judges who complained to him about expert reports, he said, had not made complaints to the GMC.
He accepted there may be problems in relation to those experts who are not in regulated professions, but to regulate expert witnesses as a “separate cadre” was difficult.
Rather, he said, look to lawyers to maintain standards. “In every case where a lawyer is involved, the lawyer is bound to spell out the duties to the expert, and not to put an expert into the witness box if he/she believes the duty of the expert has not been complied with.”
Other remedies to address the problem could include proceeding against an expert for contempt of court, attempting to pervert the course of public justice or conspiracy to pervert the course of justice, he said.
“It may only take one or two prosecutions for a salutary effect to be brought to the system as a whole.”