HAS THE WITNESS FOR THE OTHER SIDE WRITTEN A BOOK? THAT IS AN INTERESTING QUESTION: RESEARCHING AN EXPERT BEFORE THEY GIVE EVIDENCE
I have lost track of the number of interlocutory judgments there have been in the case of Kimathi & Ors v Foreign and Commonwealth Office. The latest judgment being at  EWHC 3054 (QB). This judgment deals with the issue of whether a book, written by a witness for the defendant, should be admissible. It is interesting because it suggests that it was always open to the claimant to carry out the research and discover that the witness had written a book that was relevant to the evidence being given .There was not necessarily any duty on the defendant. This raises the question of how far a party needs to research into a witness before they give evidence.
The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants. The claimants have given evidence. The trial started in April 2017. It is unlikely to finish before the long vacation in 2018. It has already given rise to several judgments on interlocutory matters, there have been six posts on this blog so far in relation to some (but not all) of the interlocutory judgments.
THE ISSUE IN THIS APPLICATION
A witness, Mr Millbank, gave evidence for the defendant in June 2017. At the time he was giving evidence it was discovered he had written a book that could be relevant to the issues in the trial. The book “Scrambled Africa” was published in 2000. Some 2 1/2 weeks after Mr Millbank had given evidence the claimant’s leading counsel stated that he proposed to cross-examine one of the defendant’s witnesses on some of the contents of the book. The defendant took objection to the cross-examination. The claimants then put a number of questions to the defendant and then made an application for permission to adduce in evidence certain chapters of the book.
Mr Justice Stewart concluded that the book was not a disclosable document by the defendant. There had been a delay by the claimants. It was 2 1/2 weeks after they discovered a book had been written before they said anything. It was several months before the claimants wrote to the defendant seeking to rely upon the book and before an application wa made.
The disclosure date for the Claimants’ documents was 31 July 2015. By Order sealed on 31 March 2017 (paragraph 20) the Claimants were required to identify the documents on which they rely in respect of their generic case by the close of their case, and in any event by 4pm on 28 April 2017. I have already dealt with the lack of explanation as to what research has been done in relation to any publication made by Mr Milbank. The future timetable is already tight (the Claimants wanted it to be shorter, the Defendant longer). It is not clear how much disruption there would be to this timetable if I acceded to the application. There is no evidence as to this and the lack of particularity in the application does not enable the Court properly to estimate it. If the 64 pages were adduced into evidence perhaps with some indication by the Claimants as to the more material part, Mr Milbank may, as I have said, have to produce a further witness statement. It would then have to be decided whether he was to be recalled. If Mr Milbank had to be recalled, that would add some time, I assume, to the trial timetable. He is now 80 years of age and lives in Dorset. Fortunately, at the time of giving his evidence, he did not have any particular health problems.
THE JUDGE’S CONCLUSION
(i) There is no explanation as to what steps (if any) the Claimants have taken to research themselves whether Mr Milbank had written a book. Had they done so it appears that they may well have quickly found that he had. This is relevant as to why the book had not been discovered, disclosed and adduced by the Claimants prior to Mr Milbank giving evidence.
(ii) Mr Martin’s evidence and the exhibited letters are not consistent as to when and precisely in what circumstances the Claimants became aware of the book. Assuming his statement is correct, it was prior to Mr Milbank giving evidence. In that case Mr Milbank could have been asked about the book and/or the matter could have been raised on the day he gave evidence.
(iii) The relevance of the book to the issues is not at all clear; nor is any potential prejudice which might result to the Claimants if the book is not received in evidence.
(iv) If there is some conflict between the book and Mr Milbank’s evidence (un-particularised) then the application would have to encompass the opportunity for Mr Milbank to produce a further statement and to be recalled.
(v) The application could, even based on first knowledge on 8 June 2017, have been made earlier.
(vi) This very lengthy case still has many demands upon its time.
(vii) The overriding objective leads me to exercise my discretion against the Claimants, in view of the fact that the most that can be said on the evidence is that the chapters would not be completely immaterial.
GOOGLING A WITNESS BEFORE THEY GIVE EVIDENCE
Interestingly the search term “Millbank Africa” produced the book Scrambled Africa as the fourth search term.
We have seen some interesting examples on this blog where research of an expert has given rise to issues. (It is not clear that Mr Millbank was called as an expert witness in the Kimathi case).
- In EXP -v- Barker  EWHC 1289 (QB) the defendant’s expert witness failed to disclose that he had had a close professional relationship with the defendant over many years. The judge rejected the defendant’s submission that it was for the claimant to find out this relationship. The burden was squarely on the defendant to disclose this conflict.
53. Dr Molyneux had trained Dr Barker during his seven years of specialist radiology training, and in particular had trained him for two and a half years as a registrar and senior registrar in neuroradiology, including the particular area of interventional radiology in which Dr Molyneux specialised and in which Dr Barker had a special interest. It is clear that they had worked together closely over a substantial period. They had written together a paper for the 14th International Symposium on radiology, a paper not shown on Dr Molyneux’s list of publications, and Dr Molyneux told the Court that they might have co-operated on other papers which he could no longer specifically recall. Dr Molyneux helped Dr Barker to obtain foreign placements: Dr Barker had been a Visiting Fellow at the Department of Neuroradiology, University of California at San Francisco in February and March 1990; and William Cook International Fellow, Department of Neuroradiology, Sahlgren Hospital, Gottenberg, with Dr Barker taking care, in this instance, to note in his CV that this enabled him to gain further practical experience “under the supervision of Dr P Svendsen”. 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.”
- Bank of Ireland -v- Watts Group PLC EWHC 1667 (TCC) the judge observed that the claimant’s expert had too close a relationship with his client.
“I concluded on the evidence that Mr Vosser was not a properly independent witness. It was clear that the Bank was his principal client, providing the vast majority of his work (and fees), and that he had spent most of the last few years acting for the Bank as an expert witness in actions against monitoring quantity surveyors arising out of the 2008-2009 financial crash. He told me that, until now, these had all been resolved by ADR, so that this was the first of those disputes which had come to court. He was, I think, unaware of the difference between acting as the Bank’s advocate in, say, a mediation, and his duties to the court when giving expert evidence.
Mr Vosser’s close relationship with the Bank was borne out by many things: his unrealistic approach to the allegations; his attempt to mislead the court; his application of the wrong test; his unreasonable intransigence which led to his refusal to make any concessions whatsoever; and the fact that many of his criticisms, which he did not withdraw, were so unpersuasive that the Bank, quite properly, declined even to plead them as allegations of professional negligence. I deal briefly with each of those matters in turn below. They support, either separately or cumulatively, my conclusion that Mr Vosser was not an independent or reliable expert witness.”
There are also examples of cases where a party has referred to findings and observations about experts made by judges in other cases.