WHEN THINGS GO WRONG FOR A DEFENDANT AT TRIAL: FOUR LESSONS FROM ONE CASE: WHEN YOU HAVE AN EXPERT WHO STATES THEY ARE “BIASED”…

In Hanbury & Anor v Hugh James Solicitors (a firm) [2019] EWHC 1074 (QB) Mrs Justice Yip found that a firm of solicitors had been negligent in its conduct of a fatal accident case.  There are a number of lessons for all litigators to learn from this. (There is another important issue in relation to the quantification of negligence claims in litigation which will be looked at in a later post).

“I wonder whether Mr Powell’s acceptance of bias on his part came about because of the questioning of Mr Chambers about the Hawkes case. Whatever the reason, it was an extraordinary confession. His evidence from the witness box led me to the view that I could place no reliance on his report”

THE CASE

The defendant firm were instructed in an action following the death of Mr Hanbury from asbestos related lung cancer.  The firm obtained a report from an expert which gave a negative view.  The claimant brought an action claiming that the expert had not been given all the relevant information and if he had been then the case would have proceeded.

LESSON 1: INSTRUCT AN EXPERT PROPERLY (SEND ALL RELEVANT DOCUMENTS)

Although it was in issue at the start of the trial by the end of the trial the defendant firm admitted it was negligent.  The claimant firm had the post-mortem and mineral analysis reports but did not send them to the doctor. That doctor was at the trial and gave evidence that if he had those documents he would have reached a different view.

1. It is the claimants’ case that Mr Ellis was negligent in failing to send the post-mortem and mineral fibre analysis reports to Dr Williamson and in failing when reviewing the report to recognise that he had not seen that material. It is accepted that had Dr Williamson had that evidence his report would have been materially different. The claimants’ case is that the claim would then have proceeded, and they would have recovered damages either at trial or through settlement.

2. By their defence, Hugh James, denied breach of duty and contended that, even if a breach was made out, causation was not established, since the claim was not viable for reasons unrelated to the medical evidence.

3. By the conclusion of the trial, breach of duty was conceded. Further, it was accepted that, but for that breach, Dr Williamson would have produced a favourable medical report and further steps would have been taken. However, the defendant continues to deny that the claimants lost anything of real value having regard to the merits of the underlying claim.

LESSON 2: EVEN SOLICITORS HAVE “LITIGATION SELECTIVE MEMORY” SYNDROME

The judge was slightly critical of the solicitor who gave evidence for the defendant., The judge noted:

“Mr Viney submitted that he “had clearly put a slant on events with hindsight in an attempt to deflect criticism”, whether consciously or sub-consciously. I consider that is a fair description.”

LESSON 3: EXPERTS WHO ACCEPT THAT THEY ARE BIASED ARE ALWAYS GOING TO LEAD TO A BAD DAY IN COURT

The judge considered the engineering evidence called by both parties.  The defendant had obtained a report of a previous case where the claimant’s expert had been criticised and introduced that at trial. The judge felt that this was poor practice.  However the expert called on behalf of the defendant stated, expressly that they were “biased” and the judge did not give their evidence any credence at all.

1. The engineering evidence was not agreed and both experts were called to give oral evidence. I was concerned when hearing this evidence not to conduct a “trial within a trial” of the underlying claim. Had I been faced with two experts of broadly similar quality who reached different views, I would have regarded their evidence as representing the range of reasonable opinion that might have become available in the underlying claim. However, that was not the case. On his own admission, the evidence of Mr Powell, who was called by the defendants, did not represent the evidence that he would have provided had he been instructed in the underlying claim.

2. Mr Chambers, who was instructed on behalf of the claimants, provided a short form report in which he indicated that it was likely that Mr Hanbury had been heavily exposed to asbestos dust during his employment with thermal insulation contractors before 1977/78 and to have been exposed at a lower level thereafter. He considered that evidence from Mr Hanbury’s brother supported the use of asbestos during his work with Versil Limited. He then set out a table, weighting exposure before 1977/78 100 times higher than that in employment after that date, leading to a suggested apportionment between employers. He stressed that this could be no more than an estimate. He suggested his broad assessment of lifetime dose was consistent with the post-mortem mineral fibre analysis.

3. Mr Chambers gave his evidence in an entirely straightforward way. I was satisfied that he had substantial experience of reporting in asbestos cases and that he approached reporting in this case as he would have done had he been instructed in the underlying litigation. I considered his evidence to be reliable. He dealt with questions put to him in an appropriately considered way. He acknowledged that his opinion was based upon assumptions and inferences, but he fully explained the assumptions he had made and I found nothing inappropriate in his approach.

4. It was suggested to Mr Chambers that he had sought to make the evidence fit his theory of the case. To back this up, Mr Collett referred to a decision of Peter Marquand, sitting as a Deputy High Court Judge, in Hawkes v Warmex Limited [2018] EWHC 205 (QB), in which it was said that the judge had made the same criticism. Leaving aside my concerns about the way in which this was introduced, without first providing the court or the claimants’ representatives with a copy of the judgment, I thought that Mr Chambers responded very well to the criticism. In Hawkes, the judge had made it clear that he did not question Mr Chambers’ credibility but was concerned about the possibility of confirmation bias. The judge had also been critical of the opposing expert in that case. Mr Chambers indicated that he took the criticism on board, discussing the judge’s conclusions with leading counsel and seeking to ensure that he did not fall into a similar trap again. The impression I had of him as a careful and reflective expert suggests that he has indeed learnt from the experience.

5. Mr Chambers’ evidence was not undermined by cross-examination and I accept that it is likely that he, or a similarly experienced and reliable expert, would have provided an opinion supporting the claim had expert evidence been obtained in the underlying litigation.

6. Unfortunately, I cannot say the same about the reliability of Mr Powell. He was a poor witness, who was visibly uncomfortable in the witness box. In his report, he appeared to have entered into the arena and to have strayed into issues that were matters for the court to decide on rather than for expert opinion. He did acknowledge that it is generally not the role of the engineering expert to comment on the evidence but had then said that he felt he had to in the context of this particular case. He concluded that there was insufficient evidence to comment on Mr Hanbury’s work with insulation materials other than during his employment with Versil Limited. In relation to Versil, he suggested it was unlikely that they would have used asbestos products as they were a major manufacturer of fibreglass insulation. In doing so he rejected the witness evidence which suggested otherwise. In that regard I consider that he overstepped his role as an expert witness quite significantly.

7. When asked about this, Mr Powell acknowledged that his was an unusual report. He confirmed that he had not approached it in the same way as he would if he had been reporting in the original claim. Remarkably, he then volunteered the explanation that he had been “biased”. That was not an accidental slip. He accepted on multiple times during questioning by Mr Viney that his evidence may show evidence of sub-conscious bias. He accepted he should have left the factual issues to the court and confirmed that he would not have produced a report that looked like the one in this claim had he been instructed by one side or the other in the original litigation.

8. I wonder whether Mr Powell’s acceptance of bias on his part came about because of the questioning of Mr Chambers about the Hawkes case. Whatever the reason, it was an extraordinary confession. His evidence from the witness box led me to the view that I could place no reliance on his report. It did not represent something that fell within the range of reasonable opinion that might have been obtained in the original claim. I conclude that any engineering evidence obtained in the claim is likely to have been much closer to that of Mr Chambers.

LESSON 4: ANALYSE YOUR OWN EVIDENCE WITH CARE: THINGS THAT CAN GO WRONG AT TRIAL OFTEN DO…

This is a regular theme in this blog. In this case the defendant’s case went – during the course of the trial – from outright denial of negligence to admission. Considerable costs, and distress to the bereaved family, could have been avoided if the weaknesses in the defendant’s case had been examined with care prior to trial.