The Meadow effect

The recent Court of Appeal decision in General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006) has a great deal of subtle significance with far-reaching effects for the use of experts in all cases criminal and civil. It may be regarded as a warning to all professionals involved in litigation that a breach of duties owed to the court, as well as to the client, will be taken seriously. The background, as most will be aware, is the statistical evidence that he gave in court in the trial of Sally Clark, the mother convicted of murdering her two children (R v Sally Clark [2003] EWCA 1020). The conviction was subsequently overturned on the second appeal.

As an example of the complexities revealed in this decision the following extract from the decision of Sir Anthony Clarke, the Master of the Rolls, is particularly eloquent:

89. 'It is important to have in mind that the way a case is developed at and before trial is essentially a matter for the parties and their lawyers and that an expert must not be blamed for the shortcomings of the lawyers or indeed the judge. Equally, proper account must be taken of what Auld LJ describes as the alien confines of the witness box, where the witness is giving evidence in an adversarial contest in which the judge and the lawyers hold sway. All questions of legal relevance and admissibility are for the parties and the judge and not for the expert. As Auld LJ puts it in paragraph 205, it is important to assess the expert's conduct in the forensic context in which the allegations arise and it is of great importance to take account of the circumstances in which he came to give the evidence and of the potential effect on the outcome. I do not think, however, that it is relevant in deciding the question whether he is guilty of serious professional misconduct (as opposed to the question of penalty) to take account of the actual outcome.' [emphasis added '“ his dissenting view]

The outcome

Sir Anthony Clarke states: 'I do not think, however, that it is relevant in deciding the question whether he is guilty of serious professional misconduct (as opposed to the question of penalty) to take account of the actual outcome.'

Of course, this is a dissenting view '“ Auld LJ and Thorpe LJ disagreed. The implication of this is that for any complaint to a disciplinary body about the conduct of an expert, the disciplinary body have to make an assessment of the impact of that misconduct in a particular case.

In Meadow, what is being suggested is that the General Medical Council should have read carefully two Court of Appeal decisions in the Sally Clark case and scrutinised them, as carried out by Auld and Thorpe LJ before deciding whether Professor Meadow had committed simply professional misconduct or serious professional misconduct.

Implications for civil cases

Picture a relationship, say, between a major professional indemnity insurer (PI) and a large firm of forensic accountants (FA). PI has been very satisfied over a period of time with the success over several cases of an expert from FA in seeing off claims against their insured accountants in professional negligence claims. It is a well established arm's length professional and social relationship'¦ perhaps there has been an exchange of hospitality including some enjoyable Christmas parties. As with many firms of forensic accountants providing expert evidence, their fees are substantial '“ FA regard PI as a valuable source of volume referrals of expert witness work.

It makes commercial sense for FA to look carefully at the case presented by PI in each case. One would find it very difficult, if not impossible, to prove bad faith in any one case where they have provided expert evidence. Nevertheless if not so-called 'hired guns', they are perhaps going to be inclined to prepare reports tending to exonerate the insured accountant in a professional negligence claim.

Say you act for a company with a strong claim for negligence against their auditors. Your solicitor has found an expert with some experience of expert witness work, who is competent at what he does, and who strongly supports the claim. The company has already suffered losses due to the alleged negligence and will have financial problems fighting a long court battle. PI are the insurers for the accountants and during proceedings produce an expert's report which includes a technical element that seems to cross the line of the obligations of an expert to the court. Your client's expert is outraged. You as solicitor and your barrister properly investigate the reasons why the expert is so outraged and agree with his view.

Strategically, it is difficult to advise in this case that the company should risk an interlocutory application on this point. The safest advice may well be to go to trial whereupon, if the company's expert is right, the defence will implode. However, this means advising the client to pay potentially huge legal costs, perhaps pretty close to the amount of the claim itself, by backing the judgment of the expert.

An experts' meeting is directed by the court and takes place. FA do not back down. Mediation takes place, but PI and FA do not back down. At the trial, FA are demolished by your barrister in cross-examination and the client wins the case.

What can you do?

The client is happy to win the case,but very annoyed that they had to take such a financial risk to achieve it. The directors had several months of strain and sleepless nights, as did you and their expert.

There is no civil claim '“ in fact no loss as they have won the case and recovered all their costs. The FA expert is also not only immune from civil suit, but had no duty of care to your client anyway.

The expert at FA is a member of the Institute of Chartered Accountants (ICAEW) and your client decides to invest some of his winnings by instructing you to prepare a complaint about his conduct.

After the Meadow appeal, your client can at least do this and the expert is not immune from such a complaint. However, the ICAEW has to decide potentially whether there has been professional misconduct justifying a proportionate sanction against the expert from FA. After Meadow, it has to review the decision in the case to determine the impact of such misconduct on the outcome.

Whatever sanction is decided to be applicable, this may be challenged in the courts, as in Meadow.

In our case, the company's best point may well be that, had the FA expert complied with his duties to the court, after the experts reports had been exchanged and they were aware that the claimant's expert had noticed the point, then they should have changed their view. At the latest this should have happened at the experts' meeting. In fact your client unnecessarily had to pay significant further costs and wait for several months before finally obtaining redress when it should have happened at this stage.

The ICAEW perhaps say this is very true, but the expert from FA acted in good faith and the purpose of the adversarial system in the UK is for parties to have their day in court, which is what happened here. The point was found against the FA expert and, although he may have breached the duties to the court in a technical sense '“ no harm was in fact done '“ so suggest a small sanction '“ perhaps a small fine and/or some retraining.

Auld LJ and Thorpe LJ support this view, taking account of the outcome. The Master of the Rolls would not. If the expert had breached the duties owed to the court, the Master of Rolls would say that the sanction should be for serious professional misconduct albeit considered in the forensic context in which the allegations arose, but not taking account of the outcome.

As it stands, you have to advise your client that probably proceedings for misconduct are unlikely to produce a substantial sanction '“ is this right?

The danger

The danger is that there may in fact be little deterrent for most experts in expressing a view in the old 'hired gun' way. One view is that the Meadow decision has undone much of the good of The Ikarian Reefer [1993] FSR 563, CPR Part 35, the practice direction and indeed the new protocol.

There has been much concern and attention as to whether a finding against Meadow in this case would deter experts from giving evidence in court. It is possible that in some areas of practice, like that of Meadow, the justice system may suffer if sanctions are harsh. But should all cases be affected to this degree? In civil cases, the impact might be that claims are not be pursued at all or settled for far less than they are worth simply because one party has the resources to retain someone who either is, or perhaps is very close to, a 'hired gun'. Such an expert may consider s/he has little to fear in terms of any serious sanction from his/her professional body even if the professional misconduct line has been crossed.

Even worse

Referring again to the extract of the decision of the Master of the Rolls as set out above:

'It is important to have in mind that the way a case is developed at and before trial is essentially a matter for the parties and their lawyers and that an expert must not be blamed for the shortcomings of the lawyers or indeed the judge.'

One implication of this decision may well be that, in relation to expert evidence, there is a greater duty than most of us thought owed by the solicitor and barrister to their client. Potentially, the duty of the solicitor and barrister starts with selecting the right expert, instructing him/her properly and carefully reading the report received (not just the conclusion). If in our case, instead of the competent expert instructed, we had a less competent expert who did not notice the point raised by FA, and the client decided not to pursue it, the client could then sue the solicitor and the barrister in a professional negligence claim for the lost chance of pursuing the litigation. Your defence might be that it was not the fault of the lawyers '“ ie,we are not experts in forensic accountancy - but post-Meadow is this defence now perhaps weaker? Our incompetent expert is, of course, immune from civil suit'¦