Expert Witnesses - Can Their Credibility Be Restored?

Originally published 27th July 2005

The "Civil Justice Council Protocol for the Instruction of Experts to give Evidence in the Civil Courts" comes into force on 5 September 2005. It is hoped that by setting out comprehensively the duties that an expert witness owes to his client and more importantly to the court in a single protocol, it will counteract some of the damage caused to the profile of expert witnesses in recent months.

The discrediting of Professor Sir Roy Meadows' evidence in the Sally Clark trial has highlighted the need to emphasise to those appointed as expert witnesses and practitioners the need for complete impartiality and unbiased evidence. Professor Meadows, the paediatrician whose evidence had contributed to the wrongful conviction of Sally Clark for the murder of her two babies, was found to have given incorrect and misleading testimony following a disciplinary hearing of the General Medical Council. Although the GMC has acknowledged that Professor Meadows did not intend to mislead the court, he has been found guilty of serious professional misconduct for giving erroneous and misleading evidence, leading to a decision to strike him off the register. Due to the fact that this has been heavily publicised, there is the risk that experts (of all disciplines) may be discouraged from giving their opinions (whether in civil or criminal cases).

Will the new Protocol encourage witnesses to give unbiased evidence and will it promote the use of experts as credible witnesses?

The Protocol deals with the civil courts. It clears up any confusion caused by having two codes of practice issued by the Expert Witness Institute and the Academy of Experts, by providing unified guidance both to expert witnesses and to those instructing them on how to comply with the Civil Procedure Rules. It will not apply to those expert witnesses who are not appointed specifically by the court to give evidence in proceedings, although it will apply to those experts who are employed as expert advisers to a client and who are then subsequently appointed by the court to give expert evidence.

There are two main ways in which the Protocol can assist in restoring the credibility of experts. Firstly, although the CPR and the existing codes of practice has stressed the overriding duty of the expert to the court, the Protocol sets out a useful test of "independence" (para 4.3) i.e. will the expert express the same opinion if given the same instructions by the opposing party? Experts and practitioners should use this test to benchmark their evidence.

Secondly, whilst sanctions already exist if expert witnesses fail to comply with the CPR, the new Protocol takes this further. Paragraph 4.7 sets out specifically the sanctions that the court can impose if an expert is found to have failed to comply with their duties under the CPR. The Protocol states that sanctions may include a costs order against the instructing parties and even the debarring of the experts' evidence from the proceedings. Although the court has already shown a willingness to impose sanctions as illustrated recently in Phillips v Symes Peter Smith [2004] EWHC 2330 (Ch) In this case the court at first instance held that the expert had recommended that in his view the defendant lacked the necessary mental capacity to give evidence and go through cross-examination. The court looked at whether the general principle of a witness's immunity in respect of the evidence he gives should apply. It was held that the evidence was flawed and the expert had breached his duty to the court. The court concluded that "It would be wrong of the court to remove from itself the power to make a costs order in appropriate circumstances against an expert witness who, by his evidence, causes significant expense to be incurred and does so in flagrant and reckless disregard of his duties to the court" (The Honourable Mr Peter Smith). It can be hoped that the courts will see this as active encouragement to impose sanctions as and when necessary.

Also to assist experts in their duties and to safeguard against sanctions being imposed, experts will need to ensure that they have received full and proper instructions from practitioners. As currently exists, the Protocol sets out a checklist for instructing parties to consider when instructing an expert (para 8). However, it is also the responsibility of the expert to request clarification of their instructions if this is not clear and they should not act unless such clarification is forthcoming.

It remains the position that the experts reports must be verified by a statement of truth together with a statement that he understands and has complied with his duty to the court.

Interestingly the Protocol envisages expert witnesses having a key role to play in the resolution of disputes at the pre-action stages of a dispute. Experts at this stage in the dispute owe a duty to those that instruct them, but they will be subject to the overriding objective to resolve disputes through the early exchange of information about the expert issues involved and encouraging the resolution of the expert issues before proceedings are commenced.

This is important in commercial cases where it is usual practice for clients to instruct their own expert before proceedings are issued and/or before an expert witness is appointed by the court or as an adjunct to the court appointed witness. The Protocol recognises this but makes it clear that the costs of instructing such experts are not recoverable. Whilst the Protocol does not address the issue of whether such evidence is privileged, para 5.3 of the new Protocol would appear not to remove privilege from documents created when an expert was retained only to advise, rather than to provide a report for use in court proceedings, and in that respect does not alter the current state of the law.

This Protocol is a clear attempt to bolster the role of experts by a government body which does not believe that the days of expert witnesses are gone. By emphasising the experts' overriding duty to the court, the need for comprehensive instructions together with the imposition of sanctions should ensure consistency in the quality and content of expert evidence to a high standard. Experts play a valuable role in the dispute resolution process and the Professor Roy Meadows case has provided a valuable wake-up call that experts and practitioners cannot refuse to ignore.