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MoJ must undertake a study of expert witness misconduct

QC suggests judges should refer complaints about experts to professional regulators

10 November 2014

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Tim Dutton QC has said that anecdotal evidence of expert witnesses acting as "guns for hire" or involved in "industrial scale" abuses of the justice system requires a government study.

Speaking at the Bond Solon expert witness conference, he said that in his experience of dealing with expert witnesses before the courts, "charlatan forms of behaviour" were rare and there was no immediate need for regulation.

Dutton, who practices from Fountain Court Chambers, took part in a BBC Panorama documentary earlier this year that exposed instances of misconduct by several expert witnesses.

The BBC programme Justice for Sale?, showed reporter Daniel Foggo pose as a litigant in person asking experts to produce reports in his favour despite admitting to them that he was guilty of breaking the law. Only one of the nine experts excused himself following Foggo's admission.

Dutton told the packed audience at Church House Conference Centre in London, that circuit judges, dealing with low-level personal injury cases, have been critical of the "industrial scale" of "so-called expert evidence" given by doctors for claimants with no evidence of injury, particularly in cases involving whiplash.

Anecdotal evidence

Even though this is only anecdotal evidence, Dutton said the comments by these judges suggest that in some instances experts are being instructed repeatedly, in cases likely to be settled before trial, as a "hired gun".

"The expert is free to report again and again in the hope that most cases will settle," he said.

While the problems are unlikely to arise in well-financed cases, dangers are present in those that are publicly funded or subject to a damages-based agreement (DBA) or a conditional fee agreement (CFA).

"Where the lawyer is working under a CFA or DBA the risks that a lawyer will not discharge his duties, viz-a-viz the expert, are greater as the lawyer needs to win the case to be paid and may therefore be under greater pressure than in a traditionally paid case not to comply with the rules,' commented Dutton.

However, the barrister expressed caution at the prospect of increased regulation, suggesting that the Ministry of Justice (MoJ) should undertake a "sensible study" to determine whether there was a serious issue, especially in expert areas such as handwriting, facial mapping, or forensics.

Expert regulation

Dutton also suggested that as most experts have a professional body, their regulators should remind them of their duties to uphold the standards of their respective professions when acting as experts.

Furthermore, judges who take issue with the standards or findings of certain expert reports should refer their complaints about the authors to the professional regulators, such as the General Medial Council (GMC). However, this is something which Dutton advised is not being done as extensively as it might at present.

He said that in the absence of any expert regulator, it will be down to the lawyers to maintain standards. "In every case where a lawyer is involved, the lawyer is bound to spell out the duties to the expert, and not to put an expert into the witness box if [they] believe the duty of the expert has not been complied with."

With experts capable of being prosecuted for contempt of court, attempting to pervert the course of public justice or conspiracy to pervert the course of justice, Dutton said: "It may only take one or two prosecutions for a salutary effect to be brought to the system as a whole."

John van der Luit-Drummond is legal reporter for Solicitors Journal

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