*/
In the latest of a number of High Court judgments in which judges have strongly criticised an expert witness in a clinical negligence case, Mr Justice Martin Spencer took a consultant neurosurgeon to task in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB):
‘In my judgment, Mr Sandeman’s evidence fell far below the standard to be expected of a reasonable, competent expert witness, both in relation to the preparation of his reports and in relation to his preparing to give evidence. I could see no excuse for this whatever... In the end, the continual apologies... were embarrassing... his oral evidence was unimpressive. It was intemperate, at one stage he even used an expletive, and there was a failure on his part to address the questions that he was being asked...’ [71]
Neurosurgeons seem to have borne the brunt of judicial displeasure in recent years, but others are not immune. In YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB) Mrs Justice Whipple demolished the expert evidence from a psychiatrist who has, over the years, provided hundreds of expert reports in clinical negligence cases:
‘I found her to be overly dogmatic about the classification of mental illness, at the expense, at times, of the evidence. I was not impressed by her stated preference for working for Defendants and the reasons she gave for doing so. I was not impressed by her inclusion of the hospital records in her report as “seen” in circumstances where she accepted that she had not read them at the time she authored her report. I was not impressed by her defensiveness in answering questions about those records…’ [80]
Litigators may have to take some responsibility when expert evidence goes awry. Martin Spencer J observed in Arksey:
‘I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman’s written evidence, and this was something which should have been addressed by the lawyers long before the trial.’
Speaking at the Expert Witness Institute annual conference in London in September 2019, Lady Justice Nicola Davies warned against parties using experts who had been retired from clinical practice in the NHS for too long. They risked being regarded as ‘dinosaurs’. At the same event, Martin Spencer J said: ‘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.’
Expert evidence is necessary in all clinical negligence cases, but advice on good practice applies to the use of experts in all forms of litigation. For litigators as well as experts, the recent judicial criticisms emphasise the following practice points:
There is currently no formal vetting process for the selection of experts. Subject to limited oversight from the courts, parties to litigation are entitled to choose the experts they wish within the appropriate fields of expertise. As a result it is often only at trial that an expert’s authority and credibility is fully challenged, sometimes with devastating results. Legal representatives have to select the right experts and then work hard to ensure that they are fully prepared so that their clients benefit from expert evidence of the standard they deserve.
In the latest of a number of High Court judgments in which judges have strongly criticised an expert witness in a clinical negligence case, Mr Justice Martin Spencer took a consultant neurosurgeon to task in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB):
‘In my judgment, Mr Sandeman’s evidence fell far below the standard to be expected of a reasonable, competent expert witness, both in relation to the preparation of his reports and in relation to his preparing to give evidence. I could see no excuse for this whatever... In the end, the continual apologies... were embarrassing... his oral evidence was unimpressive. It was intemperate, at one stage he even used an expletive, and there was a failure on his part to address the questions that he was being asked...’ [71]
Neurosurgeons seem to have borne the brunt of judicial displeasure in recent years, but others are not immune. In YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB) Mrs Justice Whipple demolished the expert evidence from a psychiatrist who has, over the years, provided hundreds of expert reports in clinical negligence cases:
‘I found her to be overly dogmatic about the classification of mental illness, at the expense, at times, of the evidence. I was not impressed by her stated preference for working for Defendants and the reasons she gave for doing so. I was not impressed by her inclusion of the hospital records in her report as “seen” in circumstances where she accepted that she had not read them at the time she authored her report. I was not impressed by her defensiveness in answering questions about those records…’ [80]
Litigators may have to take some responsibility when expert evidence goes awry. Martin Spencer J observed in Arksey:
‘I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman’s written evidence, and this was something which should have been addressed by the lawyers long before the trial.’
Speaking at the Expert Witness Institute annual conference in London in September 2019, Lady Justice Nicola Davies warned against parties using experts who had been retired from clinical practice in the NHS for too long. They risked being regarded as ‘dinosaurs’. At the same event, Martin Spencer J said: ‘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.’
Expert evidence is necessary in all clinical negligence cases, but advice on good practice applies to the use of experts in all forms of litigation. For litigators as well as experts, the recent judicial criticisms emphasise the following practice points:
There is currently no formal vetting process for the selection of experts. Subject to limited oversight from the courts, parties to litigation are entitled to choose the experts they wish within the appropriate fields of expertise. As a result it is often only at trial that an expert’s authority and credibility is fully challenged, sometimes with devastating results. Legal representatives have to select the right experts and then work hard to ensure that they are fully prepared so that their clients benefit from expert evidence of the standard they deserve.
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
On the 50th anniversary of the pub bombings, even now it is still unresolved. Chris Mullin, the journalist and former MP who led the campaign leading to the release of the Birmingham Six, looks back at events
Adele Akers’ reflections on health and wellbeing support at the very junior end of the Bar
Not one to say, ‘I told you so,’ Sam Thomas continues his cyber series with the key learnings from the major supply chain attack affecting 80 law firms and at least one set of chambers at the end of 2023
One year on and the Court of Appeal fails to quash convictions after receiving evidence of racism in the jury room, and there are still no revisions to the Equal Treatment Bench Book , says Keir Monteith KC
Increasing sophistication and frequency of attacks have led many chambers to ask ‘when’ not ‘if’ they will suffer a cyber incident. Simon Davis sets out the factors to consider when renewing your cyber cover