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Experts again

Earlier this year it was suggested to me that I should take a look at Irwin LJ’s judgment in EXP v Barker, in part because the topic of experts is a familiar one on this blog.

Time and time again, experts do something (or don’t do something), that causes the judge (whether at trial or on appeal) to question the reliability of their evidence. Previous posts include one on Stuart-Smith J’s judgment in the Ocensa Pipeline Group Litigation, but I’ve also looked at Coulson J’s views of the quantum experts in Van Oord UK Ltd and another v Allseas UK Ltd and, prior to that, I considered Akenhead J’s judgment in Weatherford Global Products Ltd v Hydropath Holdings Ltd and othersHowever, it isn’t always about performance, as my piece on the judgment in British Airways plc v Spencer and others demonstrates. This post isn’t either. It’s all about who the expert knew, and how well.

EXP v Barker

The claimant brought a claim for clinical negligence against the defendant in relation to the failure to identify and treat an aneurysm in her brain. The issue was “relatively narrow”. Put simply, would a reasonably competent neuroradiologist have identified and reported the presence of the aneurysm on a MRI scan in 1999?

Both parties instructed their own medical experts. During the trial, it emerged that the defendant (who was a consultant neuroradiologist) and his expert witness, Dr Molyneux (who was also a neuroradiologist), had failed to disclose the long-standing professional relationship that existed between them.

At trial, the claimant argued that the defendant’s expert evidence should be declared inadmissible. The judge disagreed. He rather reluctantly allowed the expert evidence, as he considered that failing to do so would be potentially fatal for the defendant as it was too late for any alternative expert to be appointed. However, in allowing the evidence, the judge emphasised the importance of expert witnesses disclosing any conflicts of interest as early as possible. He noted that failing to provide early disclosure, particularly in relation to such an obvious conflict:

“… tends to raise a natural suspicion that the default was not inadvertent.”

In fact, Irwin LJ in the Court of Appeal described this as a “very substantial failure indeed”, particularly as the experts had been directed to include in their reports “details of any employment or activity which raises a possible conflict of interest”.

It seems that the defendant and his expert witness had a “lengthy and extensive connection”, as the expert had trained the defendant during his seven years of specialist radiology training at the Radcliffe Infirmary in Oxford, and they both shared an interest in a particular area of interventional radiology (whatever that is). Other details emerged at trial, including that:

“Dr Barker accepted that Dr Molyneux had guided and inspired his practice, and Dr Molyneux had helped Dr Barker become a consultant in Southampton. They had also been officers together on the committee of the British Society of Radiologists, Dr Barker having been Treasurer at the time when Dr Molyneux, being a committee member, was nominated President.”

It went further than this:

“It also emerged that Dr Barker had suggested that Dr Molyneux should be a defence expert. He had first been asked in cross examination whether he had chosen Dr Molyneux as an expert, which he denied, and he had had to be prodded with a further question to elicit the full picture.”

However, this was not apparent from looking at the expert’s CV, or from the defendant’s witness statement.

The trial judge also confirmed that confidence in the independence and impartiality of experts plays an important role when the courts are evaluating the competing and finely balanced judgements of rival experts. In this instance, he “came very close” to ruling the evidence inadmissible, as his confidence in the expert’s independence and impartiality had been substantially undermined. When assessing what weight to give to that evidence, he took into account the serious reservations he had about the expert.

Irwin LJ considered that the trial judge was entitled to reach the conclusions he did. In fact, he suggested that if he had:

“…  decided to exclude Dr Molyneux’s evidence entirely, it would in my view have been a proper decision.”

The rationale for this is the adversarial nature of the civil process, which:

“… depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict. Dr Molyneux failed to do so here, despite an express direction to that effect. Indeed, the omission of mention of papers co-authored with Dr Barker points in the other direction.”

What does this mean?

This decision highlights how important it is for expert witnesses to disclose to the court any potential conflicts of interest as early as possible. The trial judge was concerned that the failure to disclose this information affected the expert’s independence and objectivity. It raised the question of whether he was partial. The trial judge may have decided not on this occasion, but it clearly was a finely balanced thing.

The construction world is similarly small. It often feels like we all know each other and there are always familiar faces in the room, whether that is a court room, or a hearing for an adjudication or arbitration. Yet again the courts have highlighted how transparency is crucial. I borrowed from Jonathan’s blog just the other week, and I shall do so again here as I think his words apply equally to experts:

“… adjudicators really do need to err on the side of caution, and it would be sensible for them to adopt the principle that, if there is any doubt as to whether an involvement constitutes a conflict of interest, this should be disclosed.”

MCMS Ltd Matt Molloy

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