EXPERTS, CONFLICTS OF INTEREST AND THE DUTY OF DISCLOSURE: A REVIEW OF THE RULES AND CASES: HOW EXPERTS CAN AVOID HITTING THE NET

April 8, 2021 · by · in Civil evidence, Civil Procedure, Credibility of experts, Expert evidence, Experts

An earlier post looked at the decision of Mr Justice Mostyn in Bux v The General Medical Council [2021] EWHC 762.  Part of that judgment dealt with the duties of experts to disclose an interest they have in the case.  This is a point that has appeared in many cases in recent years.

“The obligation to give an unbiased opinion plainly carries with it the obligation to disclose any actual or potential conflicts of interest. Surprisingly, there is no explicit reference to this either in the rules or the Practice Directions. This is notwithstanding that in Toth v Jarman [2006] EWCA Civ 1028 at [119] the Court of Appeal suggested that the Civil Procedure Rule Committee should amend the standard terms of the declaration in an expert’s report to state that the expert has not left undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the court’s decision.“

“Let me to give another example of a potential, as opposed to an actual, conflict. Here, a solicitor wishes to instruct a top expert in a piece of litigation. However, the previous summer, as part of her firm’s marketing strategy, the solicitor had taken the expert to Wimbledon for the day with full hospitality. That largesse would not mean that a state of actual conflict of interest existed between the solicitor and the expert. However, there would be a potential conflict of interest which would need to be disclosed (see below for the duty of disclosure).”

KEY POINTS

  • The duty is on a party calling an expert (and the expert themselves) to disclose whether they have any relationship with the party calling them.
  • A failure to do this could lead to evidence being inadmissible.
  • Even if the evidence is admitted the credibility of the expert is badly damages.

PRACTICE POINTS

  • Ensure that, when an expert is in fact independent and is fully aware of the role of an expert.
  • If there is a previous course of dealing between the instructing party and the expert ensure that this is disclosed in full.

THE RULES

CPR 35.3(2) makes it clear that the expert’s duty to the court overrides any obligation to the person from whom experts have received instructions or by whom they are paid.  However neither CPR 32 or the related Practice Direction imposes an express duty on an expert to disclose that they were known to a party beforehand.   Many of the professional guides to expert witnesses impose such an obligation. Further it is common for court orders to require experts to disclose conflicts, so in the case of EXP -v- Barker [2015] EWHC 1289 (QB) the court order, granting permission to call experts,  included an order:

“Experts will, at the time of producing their reports, incorporate details of any employment or activity which raises a possible conflict of interest.””

IT IS HIGHLY UNWISE, HOWEVER, TO FAIL TO DISCLOSE ANY RELATIONSHIP

The EXP case is probably the best example of the dangers. Despite the order made the defendant’s expert failed to disclose a long-standing and professional relationship with one of the defendants, omitting joint-papers they had written together from his c.v. which was placed before the court.

THERE IS NO OBLIGATION ON THE OPPOSING PARTY TO SEARCH THIS CONFLICT OUT

In the EXP case Mr Justice Kenneth Parker roundly rejected a submission that it was the job of the claimant to notice, and enquire, about professional relationships.

“49. Mr Angus McCullough QC, on behalf of the Defendant, suggested that the respective CV’s should have put the Claimant, or at least her legal representatives and proposed experts, on notice that there was likely to have been some sort of connection, and that they ought then to have pursued the matter with the Defendant.
50. I do not accept that suggestion. In my view, the burden was fairly and squarely on the Defendant, in particular on Dr Molyneux who was to be the Defendant’s key (in the event, sole) expert witness at the trial, to state frankly, with adequate particulars, the nature and extent of any connection between Dr Barker and Dr Molyneux.
51. The Defendant knew the details; it is both fair and economical that the Defendant should disclose them. The Claimant should not be expected to engage in the time consuming detective work, the output of which might be incomplete or inaccurate, in order to ascertain the full picture bearing on Dr Molyneux’s independence as an expert witness.  Furthermore, if the Claimant had been given full particulars, the issue of Dr Molyneux’s independence could have been explored, as it should have been explored, before the trial began. “

THE BURDEN IS PLACED SQUARELY ON THE PARTY CALLING THE EXPERT

“Failure to make early disclosure [of a pre-existing relationship between an expert and a party] may lead to the kind of chaotic situation that has arisen in this case, where the nature and extent of the conflict became clear only in the course of the trial and led to a submission, after all the evidence had been heard, that the evidence of the Defendant’s expert, upon which the defence in the event exclusively depended, should be ruled inadmissible by the Court. Failure to make early disclosure, particularly of an obvious conflict, also tends to raise a natural suspicion that the default was not inadvertent, and to reinforce the Court’s concern that the witness has, most exceptionally, become so compromised that the evidence must be altogether excluded”

THE MAJOR IMPACT UPON THE EXPERT’S CREDIBILITY

This failure played a major part in the judge’s assessment of the credibility of the witnesses.

  1. Where the core issue in a case turns, as it does here, on the court’s ability to evaluate the competing and finely balanced medical judgements of rival experts, the court’s confidence in the independence and impartiality of the respective experts must play an important role. I have to say, with considerable regret, that by reason of the matters set out earlier in this judgment my confidence in Dr Molyneux’s independence and objectivity has been very substantially undermined.”

OTHER EXAMPLES: EXPERT FAILING TO DISCLOSE HE HAD STARTED TREATING A PARTY

Similar points arose  in The Ritz Hotel Casino Ltd -v- Al Geabury [2015] EWHC 2294(QB), the judge noted (of an expert called on behalf of a claimant).

  1. I was particularly concerned by Dr Taylor’s failure to disclose (until after two hours of cross-examination when it was too late) a fundamental conflict of interest, contrary to the last line of his expert’s declaration. The conflict was that he was not simply reporting as an expert, but in the last month he had attended on the Defendant as a treating doctor on four occasions. It was no answer that this did not affect his written evidence because he had no conflict at the time of his report, since the duty is a continuing one, and it did affect him at the joint experts’ meeting and in preparation of the joint report (which also contained the declaration) and when giving oral evidence (in which he referred to the declaration). I was surprised too by Dr Taylor’s suggestion that it did not matter because there was no material in the subsequent consultations which affected his view. This is simply no answer to what is a substantial conflict between a role as a treating doctor and an independent expert. The information communicated to him by the Defendant as his client could not be tested, and could not with any certainty be separated in his own mind.

AN EXPERT REFERRING TO THEMSELVES IN THE THIRD PARTY

In Hayes -v- South East Coast Ambulance Service NHS Foundation Trust [2015] EWHC 18 QB. HH Judge Coe QC (sitting as a High Court judge) considered the issue of a former treating doctor of the claimant reporting on behalf of the defendant.

  1. When he was cross-examined Professor Barnes confirmed that he did not feel there was any conflict in acting as the Defendant’s expert despite the fact that he had been Mr Hayes’ treating physician at some point. He had no memory of seeing him and it was a long time ago. He defended the fact that he had commented on breach of duty despite his remit as a causation expert on the basis that he was asked to comment on it. He said that the significant portion of his report dealing with non-compliance with medication was important to set the background because it was relevant to an understanding as to how Mr Hayes arrived at the position he was in. He agreed that the poor compliance was not relevant to the treatment and outcome on the night other than because bronchodilators tend to work well in brittle asthma. He said that the records show poor compliance over the years, but he agreed that they do not show any record of poor compliance between 2003 and 2008 and there is no record of any doctor expressing any concern about Mr Hayes’ compliance. He agreed that in the circumstances suggesting that the basic problem was non-compliance in his causation report was probably badly phrased.

CREDIBILITY AFFECTED

Again this had an impact on the judge’s view in relation to the credibility of the expert.

  1. I had some concerns about Professor Barnes’ evidence. It seemed to me that by failing to specifically point out that he had been Mr Hayes’ treating doctor (indeed referring to himself in the third person), by commenting on breach of duty and by devoting so much of his opinion to the issue of compliance he gave the appearance of trying very hard to support the Defendant’s case rather than assisting the Court as an independent expert should.

DISCLOSING KNOWLEDGE OF THE PARTIES IS IMPORTANT

In  Thefaut -v- Johnson [2017] EWHC 497(QB) Mr Justice Green suggested that the issue of knowledge of the parties should be dealt with expressly in the expert’s own report.

 

(iv) Mr Peacock (returning fire) launched an attack on the professionalism of Mr Gullan upon the basis, inter alia, that he had failed in his report to record his prior knowledge of Mr Johnston as a colleague on various professional bodies and his regard for Mr Johnston as a surgeon of repute and skill. This was an omission going to his impartiality. He also attacked Mr Gullan upon the basis that although the issue of the findings by Mr Samandouras had been an important part of the litigation from the date of the Letter of Claim he had more or less ignored it and only really engaged with it for the first time when he gave oral evidence. He also attacked Mr Gullan for not appearing to have been aware of the actual evidence that Mr Samandouras gave in the witness box, which preceded his own evidence.
(v) In the event I took the course that I should simply listen with care to the expert evidence given by both of these experts and to the extent that there was a dispute between them I would then bear in mind any criticisms of their professionalism which I thought well founded and relevant in forming my view on the issues in dispute. My ultimate conclusion was that both experts acted properly in the giving of their evidence. I have not felt the need to discount their views on the basis of any want of professionalism. I would however make one observation. In the specialist field in issue there are a relatively small number of surgeons. They tend to know, or know of, each other, especially if they have been in practice for many years and have had prior involvement with each other as colleagues serving in the various specialist professional bodies. In such circumstances there is a high probability that when one of this select group is instructed to act as an expert in a case he or she may know of the Defendant either personally or by repute. This was the case of Mr Gullan in relation to Mr Johnston. He knew him both from co-participating in professional bodies and by repute. This did not in my judgment necessarily mean that he could not give expert evidence in the case. He was not so close to Mr Johnston that, objectively speaking, his independence was compromised. But it is my view that Mr Gullan would have been far better to get out in the open his personal knowledge of Mr Johnston. A concise but accurate and comprehensive paragraph in his report setting out the bare facts of his knowledge of Mr Johnston would have sufficed. This would have taken much of the sting out of the cross examination which did, I am bound to say, leave Mr Gullan feeling and sounding defensive. The issue here is the appearance of bias. The inevitable questions in cross examination which followed from the omission were along the lines that Mr Gullan was advancing a view which was tailored to support a fellow professional who was in a predicament, and hence lacked objectivity. If this had in fact been Mr Gullan’s intent and object when giving evidence it would have struck at the very heart of his professionalism and objectivity and it could have rendered his evidence inadmissible: see, e.g. EXP v Dr Charles Simon Baker [2017] EWCA Civ 63 at paragraph [49] per Irwin LJ. As I have observed I do not accept that Mr Gullan gave his evidence other than objectively and independently.”

 

CONSIDERATION OF WHAT IS MEANT BY CONFLICT OF INTEREST

The judgment in  Bux v The General Medical Council [2021] EWHC 762 considers what is meant by conflict of interest.

Conflict of interest
    1. What exactly is a conflict of interest? A conflict of interest (or, perhaps more accurately, a conflict of interests) will arise when an expert witness’s opinions are either (1) actually influenced, or (2) capable of being influenced, by his personal interests. The former state is obviously rare and where done consciously involves considerable moral turpitude.The latter state is more common and involves no wrongdoing. I shall call these the first and second types of conflict of interest.
    1. Let me illustrate the second type of conflict of interest with an example. An expert witness accepts instructions to give evidence in favour of a litigant with whom he is having a relationship. He is actually conflicted under the second type before he has written down a word of his expert report, because the existence of the relationship is capable of influencing his opinion.
    1. In many cases it is not possible to be categorical whether a conflict of interest has arisen. In such cases the descriptive language is that that there is a “possible” conflict of interest, or that there is a “serious risk”, or “significant risk”, of a conflict of interest arising. This is the descriptive language used in different regulatory spheres, respectively the GMC[1], SRA[2] and BSB[3].
    1. Where the conflict in question is only prima facie suggested by the facts it is properly described as a “potential” conflict.
    1. So, reverting to my example above, the expert is “potentially” conflicted if the facts about the existence of the relationship are less than clear. If the relationship had ended years earlier then you would say that he was potentially conflicted; whether he was actually conflicted would depend on further factual investigation.
    1. Let me to give another example of a potential, as opposed to an actual, conflict. Here, a solicitor wishes to instruct a top expert in a piece of litigation. However, the previous summer, as part of her firm’s marketing strategy, the solicitor had taken the expert to Wimbledon for the day with full hospitality. That largesse would not mean that a state of actual conflict of interest existed between the solicitor and the expert. However, there would be a potential conflict of interest which would need to be disclosed (see below for the duty of disclosure).
    1. It is true that in the caselaw the expression “a potential conflict of interest” is sometimes used to describe an actual conflict of interest of the second type. In Toth v Jarman there are references to “a potential conflict of interest” in [102], [112], [113], [114] and [132]. It is clear that when using that phrase Sir Mark Potter P was in fact referring to an actual conflict of interest, albeit of the second type. In contrast, in [111], [112], [114] and [121] he speaks of “a possible conflict of interest.” Here, it is clear that he is referring to what I have categorised as a potential, or yet-to-be-proved, conflict of interest in paras 25 and 26 above.
    1. Conflicts of interest come in different forms. In Rowley v Dunlop [2014] EWHC 1995 (Ch) David Richards J at [21] identified three common forms. First, the situation where the expert has, or may have, a financial interest in the outcome of the litigation. Second, where the expert has, or may have, a conflicting duty. Third, where the expert has, or may have, a personal or other connection with a party which might consciously or subconsciously influence, or bias, his evidence.
    1. Variations on these examples are found in professional codes of guidance. The SRA Guidance on Conflicts of Interest (which is not specifically directed at expert witnesses) mentions acting for a client in relation to a matter which may conflict with “a financial interest of yours or someone close to you” or “a personal or business relationship of yours.”[4] The GMC Guidance on Acting as a Witness in Legal Proceedings instances the position where “you have been professionally or personally involved with one of the people involved in the case in the past, or you have a personal interest in the case.”[5] The GMC Guidance on Financial and Commercial Arrangements and Conflicts of Interest says “Conflicts of interest may arise in a range of situations. They are not confined to financial interests, and may also include other personal interests.”[6]
    1. Issues about conflicts of interest can arise in civil litigation, as well as in professional disciplinary proceedings such as this. In civil proceedings the usual issue is whether the evidence of an expert witness should be either declared inadmissible or afforded no weight because of the existence of a conflict of interest. In regulatory proceedings the issue is normally whether the registrant should be sanctioned for having given expert evidence without having declared a conflict of interest.
    1. The existence of a conflict of interest by an expert does not necessarily disqualify him, or render his evidence inadmissible, or of no weight. In Factortame (No 8) [2002] 3 WLR 1104 Lord Phillips MR stated at [70]:
“This passage[7] seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal. We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a pre-condition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the Court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.”
See also Armchair Passenger Transport Ltd v Helical Bar Plc [2003] EWHC 367 (QB) where Nelson J at [29] summarised the procedural steps that would apply where an expert witness was found to be under a conflict of interest.

THE EXPERT’S DUTY OF DISCLOSURE

The judgment emphasised that an expert has a duty to disclose a conflict of interest as soon as possible.

    1. In the passage from Factortame (No 8) cited above,Lord Phillips highlighted the crucial importance of the court being made aware of an expert’s conflict of interest “as soon as possible”. Here we find the expert’s duty to declare such a conflict of interest, where he has one, at the earliest opportunity.
    1. This duty was spelt out Toth v Jarman where Sir Mark Potter P stated:
“[102] However, while the expression of an independent opinion is a necessary quality of expert evidence, it does not always follow that it is sufficient condition in itself. Where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence, or indeed to give permission for his evidence to be adduced. This means it is important that a party who wishes to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible.
…
[108]… If there was a conflict of interest which was not obviously immaterial, it should have been disclosed by Professor Hull to the defendant’s solicitors and by them to the appellant’s solicitors. … The likelihood is that the relevant information would not have been known to Mr Toth or to the court without disclosure and explanation, and it plainly raised a question as to a conflict of interest. In such a situation, the expert should disclose such information to enable the court and the other party properly to assess the conflict of interest.
…
[112] … We can understand that (in the absence of guidance from the court) a party who calls an expert witness at trial, or serves an expert’s report in advance of trial, may be aware of a potential conflict of interest but consider that it is not material and that it therefore need not be disclosed. However, for the future, we do not consider that a party should take the course of non-disclosure. We say this because it is for the court and not the parties to decide whether a conflict of interest is material or not. The court may take a different view from that of the parties as to whether an expert has a conflict of interest which might lead the court to reject the independence of his opinion … Similarly, in the interests of transparency and of deflecting suspicion, the other party ought to have the information as soon as possible. We do not consider that the parties can properly agree that a conflict of interest which is otherwise disclosable need not be drawn to the attention of the court. A party who is in the position of wanting to call an expert with a potential conflict of interest (other than of an obviously immaterial kind) should draw the attention of the court to the existence of the conflict of interest or possible conflict of interest at the earliest possible opportunity. By the same token, it is obviously desirable for the other party to make any objection that it may have to the admission of expert evidence at as an early a stage in the proceedings as practicable.
…
[113] The obligation to disclose the existence of a conflict of interest in our judgment stems from the overriding duty of an expert, to which we have already referred and which is clearly laid down in CPR 35.3, and also from the duty of the parties to help the court to further the overriding objective of dealing with cases justly (CPR 1.3). The court needs to be assisted by information as to any potential conflict of interest so that it can decide for itself whether it should act in reliance on the evidence of that expert.”
(emphases added)
    1. In Rowley v Dunlop Richards J held at [29]:
“It is important that the other parties to the litigation and the court should have available to them information as to any connection of an expert to the litigation or to the parties to the litigation or to any person who may benefit from the litigation. It is only the disclosure of such information that will enable the court to determine whether the expert’s evidence is admissible and, if it is, the weight to be attached to it. The information provided by Mr Frenkel shows that he and Mr Cohen considered whether there was a conflict of interest and shows that they concluded that there was none. It follows from what I have previously said that I agree with that conclusion, but the very fact that they considered the matter shows that there was material information which needed to be disclosed. This non-disclosure, however, does not lead to the conclusion that Mr Cohen’s report should be excluded.” (emphasis added)
    1. And in EXP v Barker [2017] EWCA Civ 63 Irwin LJ held at [51]:
“Our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict.” (emphasis added)
    1. These passages demonstrate clearly that there is a high duty of candid disclosure imposed on an expert witness who has any degree of belief (other than a belief which is unreasonable or de minimis) that he may be under a conflict of interest. He must disclose details of a potential conflict of interest at as early a stage in the proceedings as possible. He must disclose any associations or loyalties which might give rise to a conflict. He must disclose any material that is suggestive of a conflict of interests, and will not be pardoned, if he fails to do so, by a later finding that there is no conflict of interest.
    1. The reason that such a high duty is imposed is to reflect the well-nigh canonical principle that justice must not only be done but be seen to be done: R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256.
    1. This duty is spelt out in the GMC Guidance on Acting As a Witness in Legal Proceedings at para 23 which states:
“If there is a possible conflict of interest – for example, you have been professionally or personally involved with one of the people involved in the case in the past, or you have a personal interest in the case – you must follow our guidance on conflicts of interest. You must also make sure the people instructing you, the other party and the judge are made aware of this without delay. You may continue to act as an expert witness only if the court decides the conflict of interest will not affect the case.”
    1. Similarly the Guidance on Financial Commercial Arrangements and Conflicts of Interest states at paragraph 12:
“you should … declare any conflict to anyone affected, formally and as early as possible”.
    1. Mr de Mello has argued that the GMC regulatory standard, both in respect of what constitutes a potential conflict of interest, and in respect of the scope of the duty to disclose, exceeds that set by the CPR and the caselaw. In this respect he has drawn a comparison between the conflict of interest jurisprudence and the judicial recusal jurisprudence. I admit to having been initially attracted to this parallel, but I am persuaded by Mr Mant that it is a false analogue. The principles governing judicial recusal are well known and are to be found in numerous authorities of which some of the more prominent are R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, HL; Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004, [2000] QB 451; and Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. Superficially, the demarcation of judicial bias between actual bias and apparent bias is similar to the demarcation between an actual and potential conflict of interest. But the boundary is not the same. I have sought to explain above that an actual conflict of interest will arise when an expert witness’s opinions are capable of being influenced by his personal interests. In such a circumstance the expert is actually conflicted, not merely potentially conflicted. However you would not say, comparably, that a judge was actually biased in such circumstances. Rather, you would say that there was apparent bias – that the reasonable man would say that there was a real danger of bias.
  1. The duty of disclosure imposed on a person acting in a judicial capacity has recently been explained by the Supreme Court in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48. At [136] Lord Hodge held that arbitrators have a legal duty to make disclosure of facts and circumstances which would, or might reasonably, give rise to the appearance of bias. Mr de Mello argues that the deployment of the concept of reasonableness inserts a benchmark of objectivity into the exercise which is absent in the conflict of interest regulatory standard. I agree that there is a shade of difference between the expression of the two standards, but I think that in the real world the difference between the two duties is non-existent. Mr Mant rightly argued that the difference is an exercise in splitting hairs. Obviously, there is no duty on an expert witness to disclose material which does not reasonably suggest a conflict of interest.

THE FINDINGS OF A TRIAL JUDGE

The judgment then reviews the judgment of a Circuit Judge who tried a case where the appellant had prepared a report.

    1. HHJ Gregory tried the preliminary issues. His judgment is dated 6 August 2018. It is a full and careful document. He made the following factual findings:
i) He was not satisfied that any system of “Chinese walls” was put in place or, if it was, that it operated effectively [31].
ii) Misgivings about the conflicts or independence of the appellant were only likely to be heightened by consideration of the substance of the report which appeared to have been prepared entirely without reference to the requirements of CPR Part 35 and its accompanying Practice Direction [34]-[35].
iii) The appellant did not identify the existence of a range of opinion, still less summarise that range of opinion or give reasons for his own opinion, or even identify literature or materials relied upon [36], nor had he considered all material facts, including those which might detract from his opinion [37].
iv) The report overall was “lacking in depth, substance, or anything passing for objective expert analysis”. There was “no hint or clue as to the thought process involved in arriving at the diagnosis beyond the simple and uncritical acceptance of the Claimant’s narrative, the recited detail of which insofar as it related to food hygiene issues associated with the preparation and presentation of food in the hotel restaurant was hopelessly short on particulars” [43].
v) Although his answers to CPR Part 35 questions provided some more detail, the tone and substance suggested “a determined attempt to preserve and defend an opinion or position that had been earlier put forward in his substantive report, and arrived at without fair evaluation or consideration of anything approaching the full spectrum of appropriate factors relevant to the diagnosis identified in the report” [50].
    1. His decision on issue (a) was very carefully formulated and was in these terms:
“54. I do not consider that there is any direct evidence of sufficient cogency to justify an express finding of conflict in the involvement of Dr Bux, in the sense that he had any financial interest in the litigation process in these claims involving gastric illness, beyond a reasonable expectation that he be paid for any professionally prepared Part 35 compliant reports provided. I accept from the evidence that Dr Bux was indeed paid for every report he prepared, whether or not the claim in question succeeded.
55. I am told, and accept, the position as outlined at paragraph 12 of Mr Bloomer’s closing submissions: that Sehana Bux, although nominally a director and “partner” in AMS, receives a fixed salary only, and does not enjoy any equity in the firm or receive any bonus payments relating to the firm’s profitability. Whilst I accept that there may be some intangible benefit to Dr and Mrs Bux in the form of the peace of mind afforded by her security of employment, I do not consider that this could be considered a “conflict”.”
    1. I have set out above my view that there are two types of conflict of interest. An expert witness will be conflicted not only when a personal interest actually influences his testimony, but will also be conflicted when a personal interest is capable of influencing his evidence.
    1. It seems to me that HHJ Gregory’s finding at [54] – [55] is confined to the first type. It goes no further than saying that the appellant’s report in that case was not actually influenced by his personal relationship with his wife. He does not, in these paragraphs, consider whether the appellant was under a conflict of interest of the second type.
    1. Having found that there was no actual conflict of interest of the first type, the judge then went on to consider (i) whether the appellant was under a conflict of interest of the second type, (ii) if not, whether there was a potential conflict of interest and (iii) what the appellant’s obligations of disclosure were. He held:
“56. That having been said, the network of relationships and, crucially, against the background of the letter from the MDU of 24 January 2011, the failure to disclose the relationship between Dr and Mrs Bux, is sufficient to entitle any defendant, or its insurer to query the transparency and objectivity of the process whereby the reports are produced. It raises, at the very least, a legitimate concern that the production of the reports may be driven by a less than objective and properly considered process. Any such suspicion is likely to be fortified by the formulaic nature of the reports themselves, the virtual absence of any expert analysis, and the wholesale failure to comply with Part 35 and the relevant Practice Direction.
57. The letter from the Medical Defence Union of January 2011 points clearly towards the potential for at least the perception of a conflict of interest. Dr Bux, in accordance with the advice of his professional body, should have taken steps to ensure that he declared openly his wife’s status as a director of the firm of solicitors instructing him to prepare medico-legal reports. He could have achieved this by including an appropriately worded declaration within the body of each relevant report, rather than to trust to some vague and ill-defined process whereby AMS would discharge this responsibility.
58. In the circumstances, and having regard to the authorities referred to at paragraph 15 above, and in particular the judgement of Richards J in Rowley v Dunlop [2014] EWHC 1995 (Ch) at paragraphs 19 to 21 inclusive: in the event that the evidence of Dr Bux in a case of this nature involving AMS and MLLS is otherwise deemed to be admissible, a defendant would in my judgment be justified in asking the Court to attach lesser weight to such evidence, than to a comparable report prepared by a different expert at arm’s length.”
    1. Whether this constitutes a finding that there was present an actual conflict of interest of the second type is hard to judge. However, there can be no doubt that HHJ Gregory made a finding that at the time that the report was written there were facts suggestive of a conflict of interest. Put another way, there was a real risk of a conflict of interest. Accordingly, he held that all the pertinent facts should have been disclosed by an appropriately worded declaration within the body of each report. In the absence of disclosure then, subject to the decision on the next questions, the defendant would be entitled to ask the court to attribute less weight to the evidence than it would to a comparable report prepared by a truly independent expert.
    1. The decision on issue (b) was emphatic:
“62. …whilst his clinical credentials may not be in dispute, his understanding of the duties and obligations imposed upon expert witnesses seem significantly removed from the expectations demanded by the CPR.”
  1. And his decision on issue (c) was equally categorical. He held (at [67]) that there were shortcomings in the appellant’s approach that suggested a lack of objectivity. His conclusion was, viewed holistically, that the expert evidence of the appellant was not Part 35 compliant. It was therefore inadmissible in the proceedings.

THE DECISION OF THE MPT

The judge upheld the decision of the MPT. Although it had applied an incorrect test for dishonesty and wrongfully admitted expert evidence the decision was, in the judge’s view, inevitable.

    1. In my judgment the MPT was correct to reach the conclusion that it did. I reiterate: a conflict of interest will arise when an expert witness’s opinions are actually influenced, or are capable of being influenced, by his personal interests. HHJ Gregory answered the first part of this definition in the negative; he came close to answering the second part positively. He did not have the benefit of knowing that in another case the appellant had been shown to have given a seriously inaccurate answer to questions posed under CPR 35.6. Further, for reasons which I do not entirely understand, he did not bring into account his subsidiary finding – that the appellant failed to make the necessary disclosure in his report – when making his primary finding on issue (a) as to whether there was an actual conflict of interest. I would have thought that evidence of deliberate nondisclosure of material facts would be highly relevant when deciding whether there had been a conflict of interest of the first type.
    1. In this case the MPT had abundant evidence which demonstrated the following facts:
i) As an expert witness the appellant owed to the court a duty of independence and objectivity.
ii) On the other hand, the defendant had a personal interest in keeping up to speed the lucrative throughput of medical reports the benefit from which accrued not only to himself but also to his wife. She was a co-shareholder in the company to which the proceeds of the work were paid, and was a partner in the firm of solicitors providing him with the work.
iii) In 2016 it was abundantly clear to the appellant that he had to disclose his marital relationship not only to the defendant’s insurers but also to the court. This was clear to the appellant not only from the terms of the codes of guidance to which he was subject, but also as a result of the letter written in 2011 by the MDU. But he made no disclosure.
iv) The appellant had on 12 May 2017 signed replies to CPR 35.6 questions, endorsed with a statement of truth, which were completely false.
    1. In such circumstances, in my judgment, it would have been perverse and wrong for the MPT to have decided anything other than that the appellant had an actual, serious, conflict of interest of the first type. I am satisfied, notwithstanding the presence of some linguistic confusion, that this is what the MPT decided.
    1. Having correctly reached that decision the MPT then turned to address the question whether the reports were improperly written. For each report it found that food poisoning was diagnosed without sufficient evidence; the reports failed to comply with the requirements of CPR Part 35; and (where relevant) they failed to acknowledge and/or refer to contemporaneous records of consultations and/or alternative diagnoses. It found that the appellant (a) failed to ask for further records when it was apparent that they existed; (b) diagnosed food poisoning without providing a differential diagnosis; and (c) gave no reasoning other than reciting information provided to him by the patient. There was no critical analysis or consideration of other causes despite marked similarities between the patients’ reports which should have prompted circumspection.
    1. In my judgment the MPT was wholly correct to have found these facts.
    1. The MPT then turned to the question whether the appellant’s conduct as found (i.e. (i) undisclosed actual conflict of interest, (ii) the writing of improper medical reports, and (iii) a deliberately untruthful reply to CPR 35.6 questions) was in each case (a) misleading, (b) dishonest and/or (c) financially motivated.
    1. I propose first to look at the question of dishonesty because if this was correctly found I do not need to consider whether the appellant engaged in conduct that was misleading.
    1. In Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 Lord Hughes held at [74]:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
    1. In this case the MPT made the findings about the appellant’s state of mind which I have set out above. It also found, in a throwback to the old law, that he knew that what he was doing was dishonest. Since the decision of the Supreme Court in Ivey this finding is not necessary. That it was made does not vitiate the exercise; it was merely a superfluous finding. The MPT then went on to consider the critical final objective question. It judged that ordinary, decent people would consider the appellant’s conduct dishonest. It further judged that the appellant’s conduct was plainly financially motivated. In my judgment, those findings were entirely correct.
    1. The MPT undertook an equivalent exercise in relation to the matter of the improper writing of the reports. It found that the appellant deliberately decided to write formulaic reports that diagnosed food poisoning alone. It held that he did so “considering that it was the best way of continuing to provide the lucrative stream of income for his wife’s firm and himself.” It again made the superfluous finding that the appellant himself knew that what he was doing was dishonest. It then judged that ordinary decent people would consider his conduct dishonest, and that it was plainly financially motivated. Again, in my judgment, these findings were correct.
    1. Finally, the MPT considered the matter of the untruthful replies to the Part 35.6 questions. Here it found that the appellant knew exactly what he was doing and that he had not made a stupid mistake. Again, it found superfluously that the defendant knew he was being dishonest. Again, it judged that ordinary decent people would consider his conduct dishonest and that it was financially motivated. This was a cut and dried decision. Once his defence of making a stupid mistake was rejected, as, I would suggest, was inevitable, then the subsequent findings would follow as night follows day.
    1. In my judgment it would have been permissible and logical for the MPT to have checked its findings on the first two matters by reference to its final finding. Had it done so it would surely have been reassured that its findings of dishonesty and financial motivation were surely correct in the light of the exposure of a blatant, extremely serious lie, which, incidentally, amounts to a serious contempt of court.
    1. Having made the findings of dishonesty, the finding of impairment of fitness to practise and the sanction of erasure were inevitable: Bolton v The Law Society [1993] EWCA Civ 32 at [14] – [16]; Tait v Royal College of Veterinary Surgeons [2003] UKPC 34 at [13]. Mr de Mello was realistic enough to recognise this and did not argue otherwise.
    1. I wish to record that Mr de Mello argued for the appellant extremely eloquently and said everything on his behalf that could properly have been said.
  1. For these reasons the appeal is dismissed. I have no doubt that the MPT reached entirely the right conclusions. I repeat that I do not regard the fact that they placed reliance on expert evidence, which I have found to have been inadmissible, to undermine in the slightest the otherwise completely correct approach which was adopted for all phases of this case.
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