AN EXPERT SHOULD NOT HAVE ALLOWED HIS INITIAL ASSESSMENT TO BE “CORRUPTED” BY INADMISSIBLE EVIDENCE: “THERE SHOULD BE SOME INTROSPECTION ON THE PART OF THE GOVERNMENT LEGAL DEPARTMENT ABOUT THIS”
We are returning once again to the judgment of HHJ Melissa Clarke (sitting as a judge of the High Court) in Wilson v Ministry of Justice [2024] EWHC 2389 (KB).We are also returning to the question of expert evidence. There is another example of the judge being less than pleased with an expert who, during the course of the litigation, had changed their view after a joint report had been obtained.
“Mr Burton should not have allowed his initial assessment of Mr Wilson’s accommodation needs as summarised in the joint statement, which I am satisfied was both independent and fairly arrived at on the evidence before him, to be corrupted in this way and the solicitors in the Government Legal Department should not have asked it of him. I consider that there should be some introspection on the part of the Government Legal Department about this, and about whether Ms Keech was also placed under any pressure to move away from her initial independent and fair approach as set out in her initial report and joint statement, to the more partisan and, in parts, unfair analysis of the video surveillance that she produced.”
THE CASE
The claimant suffered serious injury when he was attacked by a fellow prisoner. The defendant admitted negligence. The claimant’s injuries were life threatening and life-changing. There were seven different disciplines of expert at the trial on damages.
THE EVIDENCE OF THE DEFENDANT’S PHYSIOTHERAPY EXPERT
There was initially a great deal of agreement between the accommodation experts. However the defendant’s expert produced a supplementary report. The accommodation expert was cross-examined on the reasons why he had changed his view. The expert, reluctantly, conceded it was because he was relying on inadmissible evidence.
THE JUDGMENT ON THE ACCOMMODATION EXPERT
-
- Mr Burton notes in the joint statement that his agreement with the above assumes the Court finds that Mr Wilson would have had a 3-bed property as ‘but for’ accommodation. In his supplementary report he notes that the equipment that Ms Bochkoltz recommends would “usually be provided in a ‘therapy room’ but could equally be accommodated in a second bedroom or other areas of future accommodation“. He revisits the space requirement on the basis that “the Claimant is likely to require accommodation that is accessible to wheels at an earlier stage” and on the basis that:
i) Mr Wilson would have had ‘but for’ accommodation comprising a 1-bed property; and either
ii) what he requires, in Mr Burton’s opinion, if no therapy room is required (Option 1); or
iii) what he requires, in Mr Burton’s opinion, if a therapy room is required (Option 2).
-
- He reduces the space requirement to 71 sqm for Option 1 and 86 sqm for Option 2. He says that this can be addressed by a flat rather than a bungalow. He puts forward as a possibility a 3-bedroom flat in Stonham Court, for which I have seen the floorplan. He then moves to addressing the space requirement if the more optimistic view of Mr Wilson’s future prognosis as put forward by Mr Kumar was accepted by the Court, but I have rejected that already so will not consider it further.
- I note that Mr Mooney asked Mr Burton in cross-examination if he had seen any additional evidence before writing his supplementary report, and he denied that he had. However, although Mr Burton’s supplementary report is dated 1 March 2024, it is clear that he had been provided with at least a draft or unsigned version of Mr Kumar’s Inadmissible Expert Report signed on 13 March 2024, as he had quoted from it in his supplementary report. Mr Burton was evasive and uncomfortable when asked by Mr Mooney in cross-examination whether he had seen a draft, saying “I can’t tell you”, and when asked if he had read the line after the one he had quoted (in which Mr Kumar said “I do not believe he would need an adapted bungalow“) he simply answered “Unclear”. Mr Mooney put it to Mr Burton that he had based his supplementary report on the inadmissible opinion of a spinal surgeon, to which he answered “If that is what you are telling me”. I take that as an admission. I find that Mr Burton knew that he had been shown the draft or unsigned Inadmissible Expert Report before producing his supplementary report, and in providing the evasive answers that he did, was seeking to hide that fact from the Court. That is disappointing. Mr Burton should not have allowed his initial assessment of Mr Wilson’s accommodation needs as summarised in the joint statement, which I am satisfied was both independent and fairly arrived at on the evidence before him, to be corrupted in this way and the solicitors in the Government Legal Department should not have asked it of him. I consider that there should be some introspection on the part of the Government Legal Department about this, and about whether Ms Keech was also placed under any pressure to move away from her initial independent and fair approach as set out in her initial report and joint statement, to the more partisan and, in parts, unfair analysis of the video surveillance that she produced.
WEBINAR – EXPERTS IN THE COURTS IN 2024 11th DECEMBER 2024
On the 11th December 2024 I am giving a webinar reviewing the key cases and comments on expert evidence throughout the year (this is another hour long webinar that could easily be extended to last a whole day).
Matters to be considered include:
- Experts reporting outside their expertise
- Experts in fundamental dishonesty cases
- Compliance with the rules
- Conduct and alleged misconduct.