.
"The logic is that witnesses should be free to say what they do without fear of being sued by either side over their evidence."
That's not entirely true in so much as no witness is entirely free as there is always the threat of perjury charges being brought.
______________________________________________
"Will a disappointed litigant unreasonably blame the expert witness he instructed if he loses his case? Might he now be tempted to have a 'second bite of the cherry' by starting new litigation against his expert witness?
Could this decision encourage endless unwarranted litigation?"
I have a feeling your insurance premiums are about to rocket David.
I really don't see this causing many actions against experts, as, to do so the first thing that would be needed would be another expert of similar standing willing to testify that the first expert's opinion was incorrect. It is, therefore possible that we could see a few bun fights between experts. :)
The other point to remember is that litigants rarely lose their case solely because of one experts opinion. Usually there are several factors combining which result in a particular verdict.
So, to succesfully sue an expert a litigant would have to -
- Find another expert of similar standing willing to contradict the first expert.
- Demonstrate that they lost their case solely as a result of the experts testimony and for no other reasons.
- Be able to quantify the losses incurred as a result.
Realistically very few actions will make to court - and those that do are probably justified.
The case which went to the Supreme Court
The case which went to the Supreme Court is summarised in the judgments as follows:
- In so far as this statement of the facts describes conduct on the part of the respondent, the facts are not proved but asserted in the particulars of claim. They are to be treated as true for the purpose of resolving the question of whether this claim was properly struck out. Understandably, the respondent has not suggested that the facts asserted do not disclose a good cause of action if she is susceptible to liability in negligence.
- The action has its origin in a road traffic accident that occurred in Liverpool on 14 March 2001. The appellant was stationary on his motorcycle, waiting to turn at a road junction, when he was knocked down by a car driven by a Mr Bennett. Mr Bennett was drunk, he was uninsured and he was driving while disqualified.
- The appellant suffered significant physical injuries, but these were not of such severity as to dwarf the significance of the psychiatric consequences of his accident. These were post traumatic stress disorder (PTSD), depression, an adjustment disorder and associated illness behaviour which manifested itself in chronic pain syndrome.
- On 20 March 2001 the appellant instructed solicitors ("Kirwans") to act for him in personal injury proceedings. Kirwans instructed a consultant orthopaedic surgeon who advised that an opinion from a clinical psychologist would be of help. The respondent is a consultant clinical psychologist. In May 2003 Kirwans instructed her to examine the appellant and prepare a report for the purposes of litigation. She prepared a report dated 29 July 2003 in which she expressed the view, inter alia, that the appellant was at that time suffering from PTSD. Kirwans issued proceedings on 26 September 2003 against Mr Bennett and the Motor Insurance Bureau. The latter was replaced by the relevant insurer ("Fortis"). Fortis admitted liability on 17 February 2004, so that only quantum remained in issue.
- Pursuant to instructions from Kirwans, the respondent carried out a further examination of the appellant and issued a second report dated 10 December 2004. This stated that the appellant did not have all the symptoms to warrant a diagnosis of PTSD, but was still suffering from depression and some of the symptoms of PTSD. A subsequent report prepared by Dr El-Assra, a consultant psychiatrist instructed by Fortis, expressed the view that the appellant was exaggerating his physical symptoms. The district judge ordered the two experts to hold discussions and to prepare a joint statement. The discussion took place on the telephone and Mr El-Assra prepared a draft joint statement, which the respondent signed without amendment or comment.
- The joint statement was damaging to the appellant's claim. It recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of PTSD. It further stated that the respondent had found the appellant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of "conscious mechanisms" that raised doubts as to whether his subjective reporting was genuine.
- When taxed by Kirwans with the discrepancy between the joint report that she had signed and her earlier assessments the respondent gave what Blake J rightly described as an unhappy picture of how the joint statement came to be signed, summarised as follows:
- Kirwans sought permission to change their psychiatric expert, but the district judge would not permit this. It is the appellant's case that Kirwans were then constrained to settle his claim for significantly less than the settlement that would have been achieved had not the respondent signed the joint statement in the terms in which she did.
i) She had not seen the reports of the opposing expert at the time of the telephone conference;
ii) The joint statement, as drafted by the opposing expert, did not reflect what she had agreed in the telephone conversation, but she had felt under some pressure in agreeing it;
iii) Her true view was that the claimant had been evasive rather than deceptive;
iv) It was her view that the claimant did suffer PTSD which was now resolved;
v) She was happy for the claimant's then solicitors to amend the joint statement. "
The allegation was that the expert instructed on behalf of the accident victim was negligent in agreeing to sign the joint statement.
David
The case in question
Reading the case I have no doubt that its notoriously difficult to get anything like a diagnosis out of a psychiatrist; they are the most constrained of any branch of medicine, perhaps because what they have to say can have such dire consequences on the patient. So therefore it was unlikely that on examination, a diagnosis of PTSD was ever going to be determined. It was likely that a holding diagnosis of depression was likely to be made.
I dont quite see how you are going to get these expert witnesses from saying anything more than the cautious thing that they have been trained to say and because of the co-morbidity of symptoms in psychiatric illness it is very likely that a psychiatrist would err on the side of caution.
Before anyone asked, I have worked in the forensic side of criminal justice, apart from being a welfarer rights volunteer.
The problem in this case
I think the problem for the expert who was being sued for negligence in this case is that she apparently has said that she signed off on a joint statement from the two 'opposing' experts when, in fact, she had not agreed to the 'agreement' said to have been reached by the two experts (herself and the expert instructed by the other side) and actually she held a different view.
It seems as if she may have 'caved in' under pressure and then tried to back-track on that.
But it was too late to back-track and (it is alleged) the injured man lost money as a result.
So, in a sense, she has been her own worst enemy by saying that she has signed off on something which (she herself says) is not right.
David
.
As you say David, she shot herself in the foot.
However, psychiatrists are not "experts" in the same way that most experts are as psychiatry itself is such a subjective branch of "medicine" which has no concrete proof upon which to base an opinion.
What I mean by this is that a surgical expert can give an opinion tha someone will never walk again - based on X-Rays of the injuries. An elecrical engineering expert can say that a piece of electrical equipment will inevitably catch fire because of the physical evidence of how it is wired, but psychiatrists dont have physical evidence - merely observations and their own interpritation of those observations.
Having said all that, I do agree that if someone is setting themselves up as an "expert" then it is right that courts and clients should be able to rely upon them to be competent, and to give their expert opinion, and not be swayed by pressure from the other side.
Perhaps this ruling will make experts be more careful about giving their opinions. I have seen many examples of so called experts whose testimony has clearly be "bought" by one side or the other and really doesnt stand up to scrutiny.
Experts and the Hired un Syndrome
C-D You are spot on in realtion to the hired gun syndrome even in cases when it is accountants who are the expert witnesses. Given that 90% of civil litigation ends in agreement before going before the court, it seems to me that experts are a bit more cavalier in such cases, almost assured that their opinions will not be challenged under cross-examination. Criminal cases usually focus the mind of the expert witness. If the liberty of the accused is at stake there is every chance that the case will proceed to hearing. I have had the benefit of acting for both the prosecution and defence in such cases and still been appalled at the lack of quality in forensic accounting reports submitted to court. It was not the hired gun syndrome but simply pretty badly constructed reports.
Criminal cases
Publicus
I have to say that most of the criminal cases I deal with are settled without involving a jury (in other words the accused will plead guilty either on the basis of a written plea or to a lesser charge or both).
There is a potential double advantage to be gained by a guilty defendant if he pleads "on a basis" in that he gets 'credit' for a guilty plea and he can negotiate an agreed statement of facts which may be less serious than the initial prosecution allegations. Often the prosecution will go for 'a bird in the hand' rather than risk a possible acquittal and so avoid the time and expense of putting a case before a jury.
I also deal with a number of confiscations (which of course never involve a jury) but in the vast majority of confiscations (in my experience at least) figures are agreed in negotiation and then the agreed figures are put before the judge for his approval. (Although usually figures are agreed only as the parties are waiting outside court for the judge to begin the hearing.)
David
Last minute agreements
(Although usually figures are agreed only as the parties are waiting outside court for the judge to begin the hearing.)
David
Posted by davidwinch on Sun, 03/04/2011 - 21:40
This "running it to the wire" is a tactic used by prosecutors hoping to get a better deal (for the prosecution) as they hope that when standing at to courtroom door the defendant will be in a state of panic.
I blame a lot of defence counsel for allowing this.
You would be surprised how often a polite "get lost" outside the court doors, throws the prosecution into panic as they have turned up ill prepared for trial having expected a deal to be agreed.
Expert Witnesses and Immunity in Civil Cases
In reading the Jones v Kaney [2011] UKSC 13 judgment I was struck by the fact that the majority of the Supreme Court thought that the particulars of the case would have little effect in the future actions and reports of experts. as was pointed out the immunity of expert witnesses has already been eroded. In Meadow V General Medical Council [2007] QB 462 the Court of Appeal held that expert witnesses had no immunity against disciplinary proceedings before professional tribunals where fitness to practice was an issue. Experts should maybe fear more from being before a disciplinary hearing of their own professional body than spurious litigation from the disgruntled clients in a civil case.
Experts should however, pay hed to the words of Lord Brown in the Jones V Kaney case where he said at paragraph 67 'Suffice to say that in my opinion the most likely broad consequence of denying expert witnesses the immunity accorded to them (only comparatively recently) by the decisions in Palmer v Durnford Ford [1992] QB 483 and Stanton v Callaghan [2000] QB 75 will be a sharpened awareness of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly lest these views come to expose and embarrass them at a later date. I for one would welcome this as a healthy development in the approach of expert witnesses to their ultimate task (their sole rationale) of assisting the court to a fair outcome of the dispute (or, indeed, assisting the parties to a reasonable pre-trial settlement). '
Forensic Accounting Reports in Tax Cases
Accountants as Expert Witnesses in Tax Cases should bear in mind the full story of Philip BowlesIn December 2009 he was sentenced to 3½ years in jail for VAT fraud. The judge expressed reservations and an appeal was submitted which centred on a forensic accountancy report, which claimed that far from owing taxes, Bowles’s companies were due a refund. The defence said the report, which was not seen by the jury that convicted Bowles, should trigger a retrial.
The case came swiftly before the Court of Appeal in april 2010 Bowles v R EWCA/Crim/2010. and the appeal was dismissed. The Court found ‘insuperable difficulties in relying upon what has now emerged’ in the forensic accounting report and that ‘evidence now obtained does not and could not undermine the safety of the jury's verdict.’ The judgment is very interesting to read and a salutary reminder to all expert witnesses.
Gerard
The case underlines another sad fact about British (in)justice. It often comes down to whichever side can afford the best "expert" - and of course, the "state" with its limitless funds invariably can afford the best - or at least, the most credible (which is not always the same thing).
State funding
Don't forget that some of us worthy folk accept instructions from solicitors for the defendant funded by legal aid (so actually the state pays for me to work on instructions from the defence).
David
I wish . . .
Unfortunately it appears that the state is finding a need currently to 'tighten its belt' - or should I say 'tighten my belt'!
As we have seen years ago with dentists, the number of skilled people willing to do the work at the rates fixed by the state is diminishing. An awful lot of firms of solicitors no longer undertake criminal defence work on 'legal aid' (not even simple motoring cases before the Magistrates' Courts) because it just doesn't pay well enough. Those firms that do the work now cut corners on the service so that, for example, when a serious matter comes before the Crown Court the defendant may find no-one from the solicitors turns up to assist the defence barrister. I make no criticism of the solicitors for that ('legal aid' won't pay for them to send a clerk) but it leaves the inexperienced defendant feeling a bit vulnerable and let down.
I was talking to an accountant partner in another firm recently who was horrified to discover that his time charges for a full day attendance at Crown Court as an expert witness instructed by the defence were limited to less than £500. That is considerably less than he would have clocked up for a full day's ordinary accountancy work in the office.
But, as we say oop North, "Times is hard".
David
Legal Aid
It's going to get worse David.
Legal Aid is slowly being dismantled and soon no one in a magistrates court will be represented. At one time if you spent all day waiting for your case to be called and only 1/2 hour actually in court, you were paid for the day. Soon you will only be paid for the 1/2 hour.
How many solicitors / barristers will sit waiting until the court gets round to calling the case without getting paid? You know and I know that you can wait all day for a case scheduled for 10am to be called - no one is going to wait unpaid.
The defendant who doesnt fit within the increasingly strict limits on legal aid simply cannot afford representation, cant get legal aid, and has no chance of employing an expert. In other words - he faces a lynch mob, a kangaroo court. Justice ?????????????????????????
Don't get me started . . .
C_D
I agree with you about legal aid being dismantled. From a government point of view saving money is 'king'.
And don't get me started on CCMT (Crown Court Means Testing) - the means by which a defendant who has income or assets is required to pay a contribution - which may be substantial - from his income to the legal aid fund before his case comes to court (which is refunded if he is acquitted) and if he is convicted may have to sell his home to pay a capital contribution after the case.
The costs may not be too bad in, say, a murder which may need only, say, 3 days in court - but in a case of employee theft could be horrendous.
I am currently instructed in a case which has an estimated trial duration of 8 weeks. If the defendant is convicted he will be financially wiped out by his legal aid contribution, quite apart from anything else.
David
Stephen
I guess the answer is to simplify the law so that it becomes more understandable to the average man and woman.
Posted by Stephen Morris on Tue, 05/04/2011 - 10:46
That would not help I'm afraid. Understanding the law is a minor consideration as the judge will act as "referee".
The problem for defendants is exactly that - they are defendants. They are personally involved and, in the case of innocent defendants, justifiably outraged at being falsely accused. On top of that of course is the fear of being imprisoned etcetera. Plus many (most) defendants do not possess the abiliity to identify and stick to crucial parts of the prosecutions accusations.
Defending a case is like playing chess - the task being to identify the weaknesses in the prosecution case and exploit them to cast sufficient doubt on their case to obtain an acquittal.
The layman, fearful, and often outraged, is simply not equiped to do this and reductions in legal aid are the same as reductions in justice.
Forensic Accountants in Criminal Cases
C-D posted ' The case underlines another sad fact about British (in)justice. It often comes down to whichever side can afford the best "expert" - and of course, the "state" with its limitless funds invariably can afford the best - or at least, the most credible (which is not always the same thing).'
I think that you are missing the point that I was trying to make regrding the specifics of the case Bowles v R EWCA/Crim/2010. What concerned me was that at Crown court there was a fanfare of indignation from the defence that there was a miscarriage of justice because Mr Bowles did not have the funds necesary to appoint forensic accountnats who would have demonstrated his innocnce. All his monies were frozen. a report was prepared pro bono and this was considered and dismissed by the Court of Appeal. The court made no criticism of the accountants involved but said that the defendant did not need forensic accountants and should have been able to produce the relevant documentation in support of his plea of innocence. As I understand the case, the forensic accountants report was prepared without them having full documentation on the production of same they were really unable to challenge the Crown's position that there was major VAT fraud.
I am also mindful of another case in which the Court of appeal heavily criticised forensic accountants for 'castles in the air'-Munir.
Both these cases were in criminal court and therefore outside the perameters of the civil case we started discussing. However, all these cases have a common thread on the need for an expert to give independent and unbiased opinion. He/she is not an advocate for the side that appointed him/her but must be an advocate for the opinions expressed in any Expert Report.
.
............ Mr Bowles did not have the funds necesary to appoint forensic accountants who would have demonstrated his innocence. All his monies were frozen. a report was prepared pro bono ............... The court made no criticism of the accountants involved but said that the defendant did not need forensic accountants and should have been able to produce the relevant documentation in support of his plea of innocence.
Posted by Gerard Murray on Tue, 05/04/2011 - 13:27
That's a bit like saying that giving one side a machine gun and the other side a pea shooter is a fair contest. Yes he had a "report" - it was done pro bono so its doubtful it was as thorough as a paid for report. It was also done by whoever he could get to work for free rather than the best available.
I cannot see any justice in this, and the court was quite simply wrong in denying an appeal.
Bowles Case
C_D -‘I cannot see any justice in this, and the court was quite simply wrong in denying an appeal.’
alistair_king-‘Wasn't part of the problem that he couldn't get access to the documents without paying. Difficult to do when funds are frozen.’
Strongly advise that you both read the judgment Bowles v R EWCA/Crim/2010. TheCcourt of Appeal got it right and the controversy surrounding the ‘frozen funds’ was due to inaccurate advice to Bowles in the first instance. He had legal recourse to have funds released to enable a forensic accounting report to be prepared without recourse to the Pro Bono route.
Pro bono work
There has been some sort of a suggestion on here that paid work is somehow superior to pro bono work. I have already said on here that I do pro bono work in welfare rights (and tax advice) simply because I think its an insult to have to register with HMRC over a silly set of regulations that have no relevance to myself. What the implication is, is that I am stupid enough to take on clients who would launder money through the system.
Having said that my work is of a parallel standard to any paid accountant and I have the same qualifications as any paid accountant; I simply choose not to join in a system which has become ridiculous and decimated with over-regulation. My clients are also very praise worthy of my efforts which are done through a genuine interest in them and not because I want to earn fast bucks.
Donald2000
There has been some sort of a suggestion on here that paid work is somehow superior to pro bono work.
Posted by Donald2000 on Wed, 06/04/2011 - 22:29
No one is saying that it invariably is - merely that by definition it often must be.
I do a great deal of pro bono work myself. Indeed I am currently reviewing an appeal case on a pro bono basis which I estimate will take 2 weeks in court and I have ongoing cases in the States with others both here and in the USA fighting barbaric death penalties. - "pro bono" work I've been doing for 30 years.
My whole point about people forced to rely upon pro bono work, be it by a forensic accountant, a barrister, a doctor, or whatever, is that -
- They are immediately limited in their choice of representation / expert as we can only do so much work pro bono - the fact of life being that we have to earn a living.
- No matter how committed, the fact is that without payment no counsel or expert can have the resources to do all that he could in a fully funded case. That, unfortunately, is a fact of life.
Gerard
The Court of Appeal got it right and the controversy surrounding the ‘frozen funds’ was due to inaccurate advice to Bowles in the first instance. He had legal recourse to have funds released to enable a forensic accounting report to be prepared without recourse to the Pro Bono route.
Posted by Gerard Murray on Wed, 06/04/2011 - 20:23
Inaccurate advice caused him to go the pro bomo route. The fact he was wrongly advised in itself is clear PROOF that he was denied a proper hearing through no fault of his own.
Therefore, the court of appeal was WRONG in not granting the appeal.
This is about justice for the accused - not apportioning blame. Whether the court fouled up, or his representatives fouled up, is not relevent. The FACT is justice was not done. It is a disgrace that the appeal was not granted on that basis alone.
Expert witnesses
What it means is that you are now put into a position to sue someone who speaks as an expert witness because you dont get the result you want.
You might just as well now be able to sue the police because they cant prove that someone who attacked your relative actually did that deed.
Its actually against the principle of freedom of speech. What is being said is that if you are going to be an expert witness and tell the truth that you stand being sued for what you said. This kind of thing is not suitable for civil actions. If someone gets in the witness box and perjures themselves there is actually ample criminal law available to prevent it, without going into civil remedies. Its patent nonsense.