UK: I´m An Expert, Get Me Out Of Here ...

Last Updated: 8 March 2006
Article by Nicholas Dobson

The Meadow expert witness appeal (Meadow v General Medical Council [2006] EWHC 146 (Admin)) was decided by Collins J in the Administrative Court on 17 February 2006. This has given some important clarification on the legal position of expert witnesses should their evidence be called into question.

Following the conviction in 1999 of Sally Clark for the murder of her two babies (which was quashed on appeal in January 2003) complaint was made by Sally Clark's father to the General Medical Council (GMC) that Professor Sir Roy Meadow (who had given evidence on behalf of the prosecution at the criminal trial) was badly flawed, particularly in the misuse of statistics. In July 2005 the Fitness to Practise Panel (FPP) of the GMC found serious professional misconduct proved and ordered that Professor Meadow's name be erased from the register.

The Court noted that the FPP's decision in this case had concerned medical practitioners who are asked to prepare reports for or to give evidence in court. And these concerns are the more acute in the light of the FPP's finding that Professor Meadow had not intended to mislead the court and that there was no evidence of any calculated or wilful failure to use his best endeavours to provide evidence. The issues raised also affect other professions who may give expert evidence since it was 'particularly worrying that disciplinary action may result even if reports have been prepared and evidence given in good faith and with no intent to mislead'.

Collins J pointed out that whilst the immunity from suit of a witness in respect of evidence given in a court of law applies as much to an expert as to any other witness, this has not been extended to prevent the bringing of disciplinary proceedings. However, immunity from suit extends to the honest as well as to the dishonest witness. The immunity is based on public policy requiring that witnesses should not be deterred from giving evidence by the fear of litigation at the suit of those who may feel that the evidence has damaged them unjustifiably. And Otton LJ had said in Stanton v Callaghan [2000] 1 Q.B. 75 that:

'. . .immunity is not granted primarily for the benefit of the individuals who seek it. They themselves are beneficiaries of the overarching public interest, which can be expressed as the need to ensure that the administration of justice is not impeded.'

Otton LJ in that case had also indicated that since an expert witness owes a duty to the court which overrides that to his client, such witness should not be vulnerable to claims from disgruntled clients.

In the instant case, Collins J said that there was clear evidence before him, and common sense pointed in the same direction, that the possibility of disciplinary proceedings based on a complaint by someone affected by the evidence given has a serious deterrent effect. And although in Darker v Chief Constable of the West Midlands Police [2001] 1 A.C.435 the House of Lords had been at pains to state that the protection should not be given any wider application than was absolutely necessary in the interests of the administration of justice, the rationale behind the rule led the Court to the view that not only is there no reason in principle why it should not apply to disciplinary proceedings such as the present, but indeed every reason why it should so apply. Collins J said that there could be no doubt that the administration of justice has been seriously damaged by the decision of the FPP in this case and that the damage will continue unless it is made clear that such proceedings need not be feared by the expert witness.

The Court recognised the public interest in ensuring that public confidence in the profession is maintained and that no practitioners who have shown themselves to have fallen below the standards required should be able to continue to practise uncontrolled. In that context Collins J referred to the duties of the expert witness to the court as set out in the judgment of Cresswell J in The Ikarian Reefer [1993] 2 Lloyd's Rep 68. In addition the expert witness must give evidence honestly and in good faith and must not deliberately mislead the court. And whilst in the judgment of Collins J, the immunity has to cover proceedings based on a complaint (whether or not it alleges bad faith or dishonesty) made by a party or anyone else who may have been upset by the evidence given, he saw no reason why the judge before whom the expert gives evidence (or the Court of Appeal as appropriate) should not refer his conduct to the relevant disciplinary body if satisfied that the expert's conduct has fallen so far below what is expected as to merit some disciplinary action. But such a referral would not be justified unless the shortcomings of the witness were sufficiently serious for the judge to believe that he might need to be removed from practice or at least to be subjected to conditions regulating his practice, such as prohibition from acting as an expert witness.

In the circumstances, Collins J had no doubt that the complaint against Professor Meadow should not have been pursued. It is of fundamental importance that a witness can be assured that if he gives his evidence honestly and in good faith he will not be involved in any proceedings brought against him seeking to penalise him. So, the result will be that:

'. . . experts can give evidence free from the fear of subsequent disciplinary action unless they act so contrary to their obligations to their profession and to the court that the court decides to make a complaint. Only in such circumstances will disciplinary action be permissible.'

The Court also upheld Professor Meadow's appeal against the FPP's finding of serious professional misconduct. Collins J found that Professor Meadow had made one mistake which was to misunderstand and misinterpret the statistics. This was easily and widely made. But whilst it may be proper to have criticised him for not disclosing his lack of expertise, that did not justify a finding of serious professional misconduct. In the Court's view, it is difficult to think that the giving of honest, albeit mistaken, evidence could save in an exceptional case properly lead to such a finding.

Whilst the whole Meadow affair will undoubtedly have concentrated the minds of all experts, the judgment of Collins J has made it more likely that suitable professionals will not fear from putting themselves forward as experts albeit if they seriously depart from their obligations to their profession and to the Court, they may be referred by the Court to the relevant professional body.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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