We are, again, mining the judgment of Mr Justice Cotter in  Muyepa v Ministry of Defence [2022] EWHC 2648 (KB). This time in relation to the judge’s comments and findings in relation to the expert evidence, in particular the non-medical evidence called by the claimant.  The judge was critical of both the care expert and the employment expert instructed by the claimant.   There are important observations here, particularly for care experts.

“Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or Defendant’s “team” with their role being the securing and maximising, or avoiding or minimising, a claim for damages. Although experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code, as CPR 35.3 expressly states they have, at all times, an overriding duty to help the Court on matters within their expertise. That they have a particular expertise and the court and parties do not (save in some professional negligence claims) means that significant reliance may be placed on their analysis which must be objective and non-partisan if a just outcome is to be achieved in the litigation.”


On the 14th December  2022 I am presenting a webinar on cases on experts in 2022.  The webinar covers the whole range of litigation and should be of interest to experts and litigators alike. Booking details are available here .

This webinar looks at decisions over the previous 12 months and the lessons that litigators and experts must learn from them.  The review includes cases where expert evidence has been disallowed, because of conduct by the expert or lawyers.  Costs orders against experts and actions where experts have been compelled to disclose all the material relied on.   The review looks across all areas of practice and is of relevance to all litigators and expert witnesses alike.



Non-medical expert evidence 
  1. I heard from two care experts, Ms Amanda Kerby and Mrs Jill Ferrie and two employment experts Mr Craggs and Mr Cameron.
  2. I doubt either Ms Kerby or Mr Craggs would be anxious to relive their experience of giving evidence. However I have limited sympathy for either in this regard. They acted at times as advocate for the Claimant and both at times presented partisan views to the court and, in my view, in so doing neglected their duties as independent experts.
  3. The very significant edifice of damages constructed within the schedule was built with significant reliance upon the evidence of Ms Kerby and crumbled significantly as the case progressed even on the assumption that the Claimant’s evidence was largely reliable.
  4. At times Mr Craggs adopted the twin roles of expert and Judge of the facts (his findings being favourable to the Claimant).
Care evidence
  1. Given the issues that arose in respect of the expert evidence in relation to care in this claim it is necessary to consider the principles which govern such evidence.
  2. Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or Defendant’s “team” with their role being the securing and maximising, or avoiding or minimising, a claim for damages. Although experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code, as CPR 35.3 expressly states they have, at all times, an overriding duty to help the Court on matters within their expertise. That they have a particular expertise and the court and parties do not (save in some professional negligence claims) means that significant reliance may be placed on their analysis which must be objective and non-partisan if a just outcome is to be achieved in the litigation. 
  3. The duty that a care (and/or occupational therapy) expert owes to the court is no different to that of any other expert discipline. The well known principles set down by Mr Justice Cresswell in National Justice Compania Naviera SA Prudential Assurance Co Ltd (“the Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68 are applicable and must be borne in mind at all times. They were described as follows;
“(i) Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation[30].
(ii) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate[31].
(iii) An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider the material facts which could detract from his concluded opinion.
(iv) An expert witness should make it clear when a particular question or issue falls outside his expertise.
(v) If an expert’s opinion is not properly researched because he considers insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
(vi) If after exchanging reports an expert witness changes his view on a material matter having read the other side’s expert report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.”
The Court of Appeal in the same case endorsed these points without hesitation.
  1. CPR 35.3 sets out the primary duty of an expert as follows;
(1)  It is the duty of experts to help the court on matters within their expertise.
(2)  This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
CPR 35.10 states that a n expert’s report must comply with the requirements set out in Practice Direction 35 which sets out a distillation of the principles outlined by Cresswell J at paragraph 2
“2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
2.2  Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
2.3 Experts should consider all material facts, including those which might detract from their opinions.
2.4 Experts should make it clear –
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for example because they have insufficient information.
2.5 If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.”
  1.  Some care experts have a (full time) private practice solely preparing reports for either Claimants or Defendants. Given that the compilation of a care report often requires a significant amount of subjective judgment, there is an obvious risk of contravention of Cresswell J’s first principle and CPR 35.3. (2) through a lack of true independence arising from the need to maintain a source of instructions and the pressure to prepare a report which is favourable to the instructing party.
  2. There is also often, if not usually, a very marked aversion shown by those conducting higher value personal injury or clinical negligence claims to the use of single joint care experts, despite the fact that there is often no principled reason against such an instruction.   In my view the common working assumption within these fields of litigation that it is axiomatically the case that each party will have a care expert is misplaced, helps perpetuate polarised expert opinions and often greatly increases the cost of litigation.
  3. An expert must provide an objective unbiased opinion in relation to the relevant matters upon which they are assisting the Court. CPR 35 PD 3.3 provides that an expert must verify his/her report by a statement of truth in the following form:
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
  1. The words “and complete” are there for a purpose.  As set out above CPR 35 PD 2.3 provides that experts should consider all material facts, including those which might detract from their opinions and CPR 35 PD 3.6(6) refers to the need to deal with any range of opinions on the matters covered within the report.  The court should receive a comprehensive, objective analysis; including whether an alternative view to that held by the author is tenable.  An expert must not solely pick out pieces of evidence or entries in documents which provide support for the conclusion he/she has reached whilst not addressing material that points, or may point, the other way. Where there is a contrary interpretation, analysis or view it should be set out in the report and it is a breach of the duties owed to the Court by an expert to leave such issues to be raised by an expert instructed by the other party.
  2. The sixth of the Ikarian Reefer principles and CPR 35 PD 2.5 cover the position where an expert has changed his or her view arising as a result of matters that have occurred after they have prepared a written report (or joint report). Importantly this includes a change of opinion during a trial. By way of example if as a result of lay witness evidence an expert’s view has changed he/she should communicate this (through the legal representatives who have instructed him/her) to the other side without delay and when appropriate to the court. An expert should not step into a witness box having changed his /her view without having made this plain beforehand. If the change of opinion is properly communicated it may alter the need for or extent of evidence to be given.
  3. Although they are well settled it is also necessary to briefly set out the relevant legal principles which entitle an injured Claimant to damages in respect of care or the purchase of a particular aid/appliance.
  4. The purpose of an award of damages is, in so far as a sum of money can do so, to put a Claimant, as nearly as possible, in the same position as he/she was in before the relevant injury was sustained (see generally Wells-v-Wells [1999] 1 AC 345). As a result a Claimant is entitled to damages to meet his or her “reasonable requirements” or “reasonable needs” arising from his negligently caused disability (see e.g Sowden v Lodge [2004] EWCA Civ 1370[2005] 1 All ER 581[2005] 1 WLR 2129).
  5. So the question to be addressed is whether care, and/or aids or equipment are reasonably required? In Whiten v St George’s [2011] EWHC 2066 (QB), Swift J said that the approach she adopted was as follows:
“The Claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is ‘reasonable’, I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the Defendant of any individual item and the extent of the benefit which would be derived by the Claimant from that item.”
“It is unlikely that the Claimant will ever have the requisite level of cognitive ability to make it necessary or appropriate for him to be able to control lights and curtains. The cost of a system that would permit him to do this would be disproportionate to the benefit he would derive from it. He will have carers to attend to his needs and comfort.”
  1. The evaluation of damages for care and equipment is not just a question of a requirement simpliciter, including on a theoretical and/or very limited or occasional basis, rather of a reasonable requirement. Damages will not be recoverable if the cost is disproportionate to the benefit. The requirement of reasonableness is used to qualify and filter suggested requirements and there is no entitlement to have funding for a wish list of all care and expenditure which could conceivably provide any benefits.  
  2. When assessing reasonableness consideration must be given to all relevant factors. By way of example it may be necessary to consider the interaction of care and equipment/aids. If an aid/piece of equipment enables a Claimant to do tasks for himself/herself it may remove or reduce the reasonable necessity for care to assist with that task.
  3. Also, when care/aids or equipment are used to confer therapeutic or pleasurable benefits, consideration should be given as to whether any “loss” which is sought to be addressed should be addressed as part of a Claimant’s general damages for loss of amenity. In Cassell v Riverside  [1992] PIQR Q168 the  trial judge allowed the cost (£32,000) of building a swimming pool. This decision was overturned by the Court of Appeal, Purchas L.J. observing that
“the provision of a swimming pool is more properly considered as an element in the damages for loss of amenity, etc.”
By way of a more prosaic example I am sometimes doubtful that there has been adequate analysis of what assistance is required with gardening so as to identify what is reasonably necessary solely for maintenance purposes as opposed to catering for the pleasurable element. In the present case Ms Kerby gave as part of the justification for an element of privately funded care/assistance that the Claimant had lost the ability to play football with his children.  However children do not have a need to play football with their father and to the extent that the Claimant had suffered a loss in this regard it was clearly a matter to be compensated through the loss of amenity element of general damages.
  1. If a reasonable requirement is identified it is then necessary to consider two further questions. Firstly, whether it is likely that the uninjured Claimant would have paid for or had access to what is being recommended in any event. Sometimes what is claimed for is to be found in most households. In P v North Devon Healthcare NHS Trust [2002] Lloyds’ Rep. Med. 100. Mr Justice Gage stated:
“In my view, a lawnmower is now an everyday item of expenditure for anyone with a garden.”
“The microwave: Mrs P said that she only purchased one because S P’s dinners need constantly to be left warm. Nevertheless, this is nowadays a normal piece of household equipment, and I disallow the cost of it. A dishwasher: For the same reasons as with the microwave, I disallow this item. TV and video: For the same reasons as above, I disallow this item.”
In Leon Seng Tan v Bunnage July 23, 1986 (unreported); see Kemp paragraph 18-006 Mr Justice Gatehouse refused to award the cost of a computer on the grounds that the Claimant would have bought one anyway. In Smith v East and North Hertfordshire Hospitals NHS Trust [2008] EWHC 2234 (QB) Mr Justice Penry-Davey: stated in respect of a digital camera:
“Mr Smith said that this was bought on the advice of the speech therapist to aid communication with the Claimant. Although he said that he preferred film camera to a digital camera and would apart from the Claimant’s disability not have purchased a digital camera, he acknowledged that most parents enjoyed taking photographs of their children and many nowadays had digital cameras. In my judgement it is likely that the family would in any event have purchased a digital camera, and accordingly I do not allow this aspect of the claim.”
  1. In the present case there were a number of items, such as kitchen equipment, which were recommended by Ms Kerby apparently without any thought as to whether they were ordinary household items or not. In a similar vein Ms Kerby also recommended the cost of breakdown roadside assistance but could not say if she had asked the Claimant (who stated that he loved driving) whether he had it pre-NFCI, or would have been likely to purchase it once he left the army, in any event.
  2. The second question is whether, as a matter of fact the Claimant will actually use/receive what would be recommended as a reasonable necessity.  As Russell LJ, in Woodrup-v-Nicol [1993] PIQR Q104, at Q114, as follows:
“..if, on the balance of probabilities, a plaintiff is going to use private medicine in the future as a matter of choice, the defendant cannot contend that the claim should be disallowed because National Health Service facilities are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the plaintiff is not entitled to claim for an expense which he is not going to incur.”
  1. There is a danger that because comparatively few personal injury/clinical negligence cases reach a hearing where the issues of care/aids and equipment are contested, and as a result few reminders are given by the Courts of the correct approach to be adopted, that some reports will fail to approach the analysis of what should be claimed/funded with sufficient rigour.
  2. Ms Kerby’s experience when giving evidence should stand as a warning. The following issues arose in respect of her evidence;
(a)         In respect of a number of recommendations Ms Kerby set out no adequate assessment of why care/an item was reasonably required by the Claimant. By way of example, she advised the purchase of a “riser recliner chair” at £1,100 (with insurance and maintenance and replaced on a five-year cycle) so that the Claimant could “stretch his back out”. However, the Claimant’s case is that he has a peripheral neuropathy affecting his hands and feet and no medical expert had suggested any back pain was linked to his condition a fortiori any need to “stretch it out”. An induction hob was said to be required “to give more control with cooking and reduce the risk of the Claimant scalding himself, although why he may do was something Ms Kerby could not really explain [32]. There was also no adequate justification for advising the need for a carousel pull out corner cabinet and pull down shelving, a slide and hide oven at a cost of £1250, and a soup maker, a food processor, cooking baskets (each ordinary and commonplace kitchen equipment), a butcher’s trolley (£800), a wash dry toilet (£4,165, a whirlpool bath £10,000, a body drier £1,250 [33] and a double bed (£3,799). None of these items was justifiable given the correct test of reasonable necessity.  No expert should be in the position of having to concede during oral evidence that a recommendation in their report was “ridiculous” as Ms Kerby conceded in relation to the cost of a cabin assessment before flying on holiday.
(b)         Ms Kerby also neglected to consider whether what she was recommending was something the Claimant would have had/used in any event had he not been injured (e.g. vehicle breakdown assistance at £139 per annum).
(c)         She did not set out a range of views and specifically whether another view was tenable in respect of what she was recommending.
(d)         Ms Kerby entered the witness box not having advised the Court of her revised view after the Claimant and Mrs Muyepa had given evidence.  Ms Kerby realised that the figures she had set out in her reports were unsustainable in light of the evidence given by the Claimant and his wife but she did provide set out any recalculation. By way of example when Ms Kerby was alerted to the hours that Mrs Muyepa worked (and also that she had moved to stay in a house a 45 minute drive away) she formed the view that the hours of care she had estimated for past and future care were unrealistic. As she said during cross-examination “I realise the care level is affected big time” yet she had provided no recalculations When I explained how unsatisfactory this was there was an “on the hoof” recalculation during re-examination which was difficult to follow at times and obviously unsatisfactory.  A court will, if time is available, give an opportunity for an expert to provide a revised report/recalculation. Here the evidence of the Claimant was given 10 days (and that of his wife 5 days) before Ms Kerby gave her evidence and there was ample time to provide a revision to the opinion previously provided.
(e)         The social media and surveillance evidence clearly changed the matters addressed in her report or at the very least potentially changed them, but Ms Kerby effectively dismissed it (although she said that she had not) stating:
“This evidence does not lead me to need to alter my opinion within my report or subsequent joint statement.”
This was unrealistic bearing in mind the increased function shown. The Claimant could clearly do more than he had led either care experts to believe. Ms Kerby did not provide any tenable alternative view or set out the likely effect on her analysis if the court were of the view that the Claimant was consciously exaggerating.
  1. Ms Collignon wisely tried to limit potential damage to Ms Kerby’s credibility by striking several items out from the schedule which were based on her recommendations before she gave evidence (taken together they amounted to a very sizeable concession). However much of what was claimed should simply never have been recommended within Ms Kerby’s reports. 
  2. After I asked (her report contained no breakdown [34]) Ms Kerby revealed that she has been preparing reports solely on behalf of Claimants for nine years. She recognised the understandable concern a Court will have as to the risks that arise when an expert’s workload (and income) is solely for one side to litigation. In my view the risk came to fruition and the reports she prepared contained some partisan views designed to maximise damages for the Claimant rather than recommendations made, as they should have been, after balanced and objective application of the relevant principles.
  3. Turning to other respects of Ms Kerby’s evidence, it is necessary to highlight the fact that the Claimant complained to Ms Kerby (in January 2020) of constant pain. He told her of a typical day including:
“At 3 am he wakes up. Mrs Muyepa will sort the children out, take them to school, come back and attend to his breakfast routine. In the holidays, he will get up at 5am and is assisted downstairs to watch TV. His breakfast is provided. If Mrs Muyepa is going out she will administer his medication then put the fluids and snacks near him. When there is time, he has a shower with assistance from Mrs Muyepa on waking. Mrs Muyepa prepares breakfast. Dependent on his pain levels and impact on his mobility, he either uses a urine bottle or go to the toilet, with assistance to urinate. Use a stick with assistance from his wife to mobilise. In the middle of the day, he sits in the chair for most the time and his wife will encourage him to mobilise. Mrs Muyepa were very occasionally work a shift for 2 to 3 hours within the school day, and will leave his lunch, medication and fluids reachable from his chair. After Mrs Muyepa has picked up the children from school, they have tea together, which has been prepared by Mrs Muyepa. He is assisted to have a shower before is assisted to go to bed.”
  1. Mrs Kerby then set out a diary of care and estimated that between 17th January 2018 and 31st May 2018 the Claimant was receiving 77 hours of care per week, between 1st June 2018 and the 30th November 2018 73.5 hours a week, and from 1st December 2018 to 30th December 2019 (the date of the visit) 57.75 hours of care per week.  Eventually during cross-examination Mrs Muyepa admitted that she and the Claimant had deceived the experts as to where she was living. The reality was that she had never lived at the property having separated from her husband in December 2018. As I have set out the effect of this deception was that the Claimant’s Schedule was drastically reduced (in a rather clumsy and basic approach past care was reduced by a quarter of the hours previously claimed) Ms Kerby stated that if she had known the true position her first report would have been markedly different. Ms Ferrie stated within the second joint report:
“Jill Ferrie highlighted in her supplemental report that the detail in the witness statements…describe a different scenario to that advice to both care experts and to (sic) which assessments were based. Importantly Jill Ferrie highlighted that Mrs Muyepa advised she had not moved to the current property with Mr Muyepa in December 2018 and therefore she does not feel that the past assessments of care can be accurate. She also considers that with the above, the ongoing and future care assessments would need to be reassessed.”
  1. In my judgement the attempt to deceive was due to dishonesty on the part of the Claimant and his wife with the sole and naked aim of increasing the care claim.
  2. Ms Ferrie was also an experienced care expert (with a balance of instructions roughly two thirds defendant and one third Claimant).
  3. She stated that the surveillance evidence gave her “an awful lot more” than she gained from her initial assessment and showed a completely different level of function to what had been explained to her. She pointed out that the Claimant was captured getting into his car which did not reflect his reported difficulties in rising from the toilet and the need to rely on a rail. She stated that she would not have anticipated that the Claimant (who said he was only able to stand for 10 minutes) would have left the home unaccompanied and managed both school trips and visits to stores on one morning. She stated that her revised opinion was the Claimant was clearly able to contribute to childcare and some shopping and there was no reason why his level of functioning as observed in the surveillance would not allow him to assist in domestic tasks at the home or preparing a meal. She strongly disagreed with the proposition that was put to her by Ms Collignon that the surveillance evidence should not have caused her to alter her views. On the basis of the Claimant having significant ongoing symptoms she would accept that some assistance with DIY and decorating would be reasonable given the dangers of climbing a ladder. She would also allow recommend assistance and associated costs in relation to functional restoration programme if one was justified by the other experts.
  4. Ms Ferrie was a balanced and helpful expert and I have no hesitation in preferring her analysis of the degree of function revealed on the surveillance and social media clips.


The judge found that the employment expert had strayed into areas of evidence where they had no right to be.   This should have been pointed out to him.

  1. In his report of 23 September 2021 Mr Craggs, an employment expert, provided a critique and his conclusions in relation to the surveillance and social media evidence and the statement of Marlon Lessey and Ms Mgemezulu.  Quite why he thought this was within his remit (and why it was not pointed out to him that it was inappropriate for him to stray into matters of fact) I found difficult to understand. Examples of his comments are (in relation to the wedding in June 2019)
“I acknowledge the video does show Mr Muyepa walking without a stick, but for a very limited time and in my opinion it cannot be inferred from this that he walked without a stick regularly for any significant distance.”
“….In the absence of any images or video corroborating Ms Mgemezulu’s statement that Mr Muyepa was standing for long periods of time by the bar drinking and then dancing around leads me to conclude that I cannot place any significant weight on her statement with regard to Mr Muyepa’s claim about his functional ability or his capacity for work, then, now or in the future.”
Mr Craggs should have recognised that issues of fact were matters for the court. As it is, I broadly accepted Ms Mgemezulu’s evidence.
  1. Mr Craggs also gave some partisan views. In relation to the footage on 23 August 2019 showing the barbecue he stated:
“I note that Mr Muyepa was wearing thick soled training shoes and sports socks, compared with the others in the clip who were wearing sandals or flip-flops without socks. It could be inferred from this that Mr Muyepa’s need to keep his feet warm and cushioned was far greater than others in the clip.”
Nobody else had ever suggested this was why the Claimant was dressed as he was and in my judgment it was a clear example of Mr Craggs straining to find an explanation that could assist the Claimant. He also opined that there was nothing in the new evidence that indicated the Claimant’s functional capacity was inconsistent with what he indicated in his first witness statement, and at both interviews, “therefore on this aspect in isolation, there is nothing that requires me to change any of my opinions” However on any reasonable analysis the new evidence was inconsistent with what the Claimant had said in his first witness statement. He also stated:
“In my experience unless the discrepancy is blatant or obvious…care must be taken in inferring an individual’s functional ability for work from video footage. In my experience in order to provide reliable opinions employment experts must therefore look for repeated instances of performing the same functional activity over a protracted period of time or prolonged performance of the functional activity over a limited number of occasions”
  1. The problem with this analysis is that it would place an impossible burden on the defendant. The clips showed that the Claimant was capable of walking unaided and even dancing and this was obviously inconsistent with the very limited functionality he had described to two other experts and also in his witness statement. It was Mr Craggs’ duty to provide an opinion for the court based on the range of alternative scenarios in terms of residual function apparent from the evidence. He failed to do so.
  2. Mr Craggs also only provided scenarios for the court based on what would happen if the Claimant completed 20 years in service. He failed to provide the court with information as to what would happen if the Claimant left before 20 years which, based on the objective statistics, is what 46% of soldiers do. His scenarios were based upon what he decided on balance was likely, as a matter of fact, to have occurred. He expressed the view that a number of factors affected time in service including a range of personal, family, financial and career issues and that:
“In Mr Cragg’s experience and opinion the analysis of these factors does not suggest the chances of Mr Muyepa completing 22 years were less than that indicated by the general statistics and are likely to have been greater than indicated by the general data.”
  1. Even ignoring the evidence of Marlon Lessey, given that the Claimant was very substantially behind his peers in terms of promotion, had complained of stress in November 2015, had not taken the opportunity for all available operational tours and had three children (one of whom was disabled) it is difficult to see how Mr Craggs arrived at this analysis. In any event given that general statistical likelihood of leaving was approaching 50% he should have provided any illustrations that would have assisted me if I found, which in fact on balance I have, that the Claimant would not have completed twenty years. This was a significant failure to provide full and complete evidence to the court.
  2. Mr Craggs gave the opinion that the Claimant could have been retained as a driver within the army despite an NFCI but that as he would have to be out in all weathers and service the vehicle this may have been impractical. He also accepted there were many soldiers with a logistics role deployed in the field, but he did not see that it was likely that the Claimant would have been retained in such a role. However, the difficulty with expressing partisan views (and making factual assumptions/findings favourable to an instructing party) when giving an expert opinion is that it calls into question the reliability of views expressed elsewhere. Put simply if the aim is to assist the Claimant to advance his case any answer has to be viewed with caution.