The impartiality of expert witnesses is an issue of importance in personal injury claims. In 2000, the High Court commented upon the effects of partisanship by experts upon the expense and resolution of legal disputes:
“112 … an expert taking a partisan approach, resulting in a failure to resolve before trial or at trial issues on which experts should agree, inflates the costs of resolving the dispute and may prevent the parties from resolving their disputes long before trial.”
Earlier, in 1995, the Master of the Rolls (the second most senior judge in England and Wales), had lamented in his report on Access to Justice that:
“Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are in practice hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients.”
Fifteen years on, doubts concerning how far experts have come along linger. The issue is whether the legal system in England and Wales (‘England’ for convenience) is appropriately arranged to ensure impartiality from expert witnesses. (In this article the references to male include females).
Some opponents of the adequacy of the current legal system argue against it on the following grounds:
(1) The emoluments of expertship in proceedings are a factor incentivising experts to favour the instructing party’s case.
(2) Many or most experts exaggerate in favour of their instructing party.
(3) The judiciary are a body of laypersons unable to assess the validity of purportedly expert opinions. They judge cases by their merits and therefore, of the opinions presented to them, they tend to adopt that which accords with the merits of a case.
(4) Generally, single joint experts are inappropriate for complex high value cases.
Expert Evidence under the English Legal System
The issue is probably too wide to appropriately deal with in this short article. However an attempt shall be made. To resolve the issue, it is necessary to consider features of the English legal system relevant to ensuring impartiality from expert witnesses. Those features are, it is thought, as follows:
(1) In proceedings the courts have a discretionary power to rule the evidence of an expert witness inadmissible. During the course of planning how to manage a case, the courts can scrutinise all disclosed interests the expert may have in the outcome of the case and, if it is considered they would cause the expert to show undue favour to one party, completely disallow that expert’s evidence from the proceedings.
(2) For some long time (at least 80 years) the courts have placed expert witnesses under a duty to assist them to find facts (and to manage cases). And, for over 10 years, rules have required experts to inform the courts of their instructions. But in 1928 the House of Lords articulated it was the special duty of expert to assist the courts to narrow down complex disputed issues of fact (by cooperation with other expert witnesses if necessary). In 1981, the Lords observed to the effect that experts were accordingly under a duty to ensure their evidence was, in form and content, independently produced and uninfluenced by the exigencies of litigation. Then, in 1993, the High Court clarified that the expert owes a duty to the courts to, effectively, opine in a manner which is objective, unbiased, clearly and openly evidenced and, qualified, according to the availability of data and the extent of his expertise. The Court also observed that an expert is never to assume the role of an advocate. Rules of procedure for cases in what is described as civil law (Civil Procedure Rules, ‘CPR’), applied in 1999, further clarified that the experts’ duty to the courts overrode any obligation to the person from whom an expert had received instructions or by whom he is paid.
(3) The CPR requires all experts to state the substance of all material instructions, whether written or oral, which form the basis of their evidence (which is generally required to be written down in a report).
(4) By the CPR, the courts have the power to direct that expert evidence is to be given in a case by a single (‘joint’) expert (the cost of which both parties are liable for) and the CPR require that in straightforward low value claims, which constitute very many, if not most, cases, that direction should be the normal one, which it appears to be.
(5) The CPR enable a party to charge or sue for contempt of court a person who makes, or causes to be made, a false statement in a document which is said to be (honestly) believed to be true. Depending on the court concerned, the sanction for a person guilty of contempt may be a fine currently up to £2,500 and/or imprisonment up to 2 years.
(6) By the CPR, the courts have the discretionary power to limit the amount claimed. (Conventionally the winning party in personal injury proceedings claims back the cost of an expert’s fees and expenses from the losing party.) In 2004, the High Court ruled that, when an expert acts in flagrant reckless disregard of his duties to a court, the court can order the expert to pay for the resulting (‘wasted’ (legal)) costs incurred. A party who pays an expert for evidence that is, in effect, considered worthless will lose some or all of the payment. And the expert who gives such evidence may be forced to make a payment to the other party towards the costs of litigation.
(7) Opposing parties normally scrutinise witness evidence and oppose anything they consider improper. If the opposing party considers the witness’ statement is compromised, they may object and, if necessary, take proceedings before a court for it to rule upon the state of the doubted statement. And if that party questions the findings of the court, it may appeal. Clearly the fact that a witness states his view of the facts does not mean that view will go unchallenged.
(8) Under the English legal system, fact-finding (basically considering whether something happened or is likely to happen and/or how) requires no more than the application of common sense. The virtues of this approach are simplicity and flexibility. The questions about facts fact-finders ask themselves are kept simple. And when fact-finders assess the probativeness of evidence (the extent to which a piece of evidence proves a fact), they may take into account all factors they consider relevant and give each factor the importance they consider is merited by the context.
The Adequacy of the System
(2) The courts exercise a countervailing influence over expert witnesses through the duty they upon experts to assist them but also the requirement that experts disclose their instructions. (That countervails the agential relationship between instructing party and instructed expert which gives rise to the possibility that instructing parties may exercise direct influence over instructed experts).
(3) The general exercise of the power to direct appointments of single joint experts most likely completely neutralises in many, if not most, cases any predisposition to favour an instructing party’s interests over that of the opposing party.
(4) The possibility of a fine or imprisonment for making a false statement is a powerful disincentive against experts going so far as lying to favour an instructing party. And the possibility of a limited costs order being made is a potent disincentive against making extremely biased alterations of evidence to not only experts but also instructing parties.
(5) The adversation of opposing parties is a fundamental check upon alterations in expert evidence of any significance at almost all stages of proceedings.
(6) The flexibility of the common sense method of fact-finding is an encompassing means of restricting improper alteration of expert evidence which has been allowed into proceedings: where the fact-finder considers evidence has been improperly altered and considers the alteration relevant and important, the fact-finder may discount or entirely reject that evidence.
The Inadequacy of the System
In its other respects the argument should, it is thought, be rejected for the following reasons:
(1) The argument, it seems, oversimplifies the problem by identifying too few causes. The causes which give rise to the possibility that an expert witness will improperly alter his evidence to suit his instructing party are:
(a) Adversation: parties are set in opposition to one another.
(b) Lucrifaction: an expert gives evidence to one party in exchange for financial gain. (This encompasses the proposition relating to the emoluments of expertship).
(c) The principalship of the hiring party and the agentship of the hired expert: the party instructs the expert as a principal instructs an agent.
(d) The proximity of the relationship between party and expert. (This and cause (c) encompass the proposition relating to most experts exaggerating).
(2) While it follows from lucrifaction that it is in the interest of an expert to serve his instructing party’s interest in undermining the claim of other parties, the courts’ powers to impose a fine or a term of imprisonment, to order limited costs and to direct appointment of single joint experts are powerfully counterbalancing disincentives against extreme undue favour towards instructing parties.
(3) The proposition that many or most experts exaggerate in favour of their instructing party is an unproven assumption. Even if it is accepted, the opposing party would normally identify and challenge such exaggeration. And the fact-finder enjoys sufficiently wide discretion to consider and discount or entirely reject the same.
(4) It appears to be an implication of the argument that expert bias is the key problem. As the Court of Appeal ruled in 2002, judging whether evidence should be disallowed from proceedings by whether it appears bias or not is not the correct approach. Rather, the independence of an expert witness, as the Lords observed upon in 1981 and which the CPR requires, is a highly relevant criterion. It would also be wrong to judge the probativeness of expert evidence by apparent bias alone. That would be to wrongly assume that apparent bias is a factor which, on its own in every case, is not only relevant but so deleterious that it renders evidence quite unreliable. It is likely a number of factors will be relevant to the assessment of probativeness. The importance of each factor will vary with the context. For any kind of proper assessment, it is necessary to consider the importance of other factors, such as the extent to which an opinion is supported by evidence in the field concerned and consistency with available data, in the circumstances of the case. (For example, where an apparently biased opinion is consistent with available data and strongly supported by evidence in the field concerned, the importance of the apparent bias will be relatively small and vice versa).
(5) Judges judge cases not only by applying a notion of fairness but also by applying logic to rules of law and common sense to the facts of a case. The suggestion that they select expert evidence which most closely suits their notion of justice in a particular case is simply misconceived.
(6) The implied proposition that judges should possess and apply expert knowledge and understanding special to the circumstances concerned (including to assess the validity of an expert’s opinion) is self-cancelling, impractical, heterodoxically facilitative of doctrinairism and unwise. If a judge is an expert in the relevant field, that judge would necessarily have little need of an expert to assist him. It is ideal but impractical, it is thought, to require judges to be experts in all the specialist fields occupying the circumstances of the cases they hear. The application of expert knowledge and understanding to all fact-finding would risk making the questions about facts fact-finders ask themselves complicatedly technical and the assessment of probativeness metaphysical. That would be heterodox. As the House of Lords observed in 1976, English law is founded on common sense and experience rather than strict logic. There is much force in the implication that the truth afforded by logic is the most reliable. However it would be a mistake to treat that reliability as absolute. It is possible for an individual expert to make a mistake. Right-minded experts can reasonably differ. Accepted theories are subject to change. It seems wiser to always weigh the conclusions from the logic of accepted theories against the more basic standard of common sense rather than bind the fact-finder to follow them.
Accordingly the conclusion is the existing system, it is proposed, contains features sufficient to allay any serious doubts concerning the impartiality of experts.
Raymond Amoakwa-Buadu
Personal Injury Lawyer