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Should expert witnesses have a right of reply from findings of judges?

By: Mark Tottenham BL

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(This article was originally published in the  Expert Witness Journal, (UK) April 2021)

Expert evidence has increasingly been under the spotlight in case law over the past ten years. The courts are rightly concerned to uphold the best evidential standards. But should individual expert witnesses have their reputations damaged in written judgments without any right of reply?

It is relatively common to find comments concerning named experts in written judgments, along the following lines: “This approach has no intellectual justification whatsoever and as an approach by an expert witness is wholly flawed.” (Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) (High Court, Fraser J, 18 October 2017)); or “I was not impressed with the evidence of [the expert] for the reasons I have set out above. It was not thorough. It was not complete” (Skanska Construction UK Ltd v Egger (Barony) Ltd. [2004] EWHC 1748 (TCC) (30 July 2004)).

In the English 2016 family law case of Re W (A Child) [2016] EWCA Civ 1140, the trial judge had severe criticisms to make of a police officer (“PO”) and social worker (“SW”) in their conduct of sexual abuse investigations. He gave them an opportunity to reply to the criticism, and stayed the publication of the judgment pending an appeal to the Court of Appeal.

The Court of Appeal held that the “private life rights” of PO and SW under Article 8 of the European Convention on Human Rights ("ECHR") would be breached if the judgment was published. Even if it were not published, it was held that the need to inform employers or prospective employers of the findings would amount to such a breach (see also, R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis [2009] UKSC 3).

The court held that if ‘findings of significance’ were made concerning a witness, consideration should be given to: (a) ensuring that the case was adequately ‘put’ to the witness, and recalling him or her for cross-examination if necessary; (b) prior to such cross-examination, providing disclosure of relevant material, with time to reflect on it; and (c) investigating whether there was need for legal advice or legal representation.

However, the court was alive to the relevance of the judgment to expert witnesses, and held that such procedures should not apply to them, given that it was “likely that the critical matters will have been fully canvassed by one or more of the parties in cross examination”.

Nonetheless, the procedures in Re W were applied in the case of a single joint expert in the case of Medway Council v R & Ors (Rev 1) [2016] EWFC B104. The expert had provided a single joint report, but failed to reply to subsequent communications, with the result that a new expert had to be retained. The original expert was located in time for the publication of the judgment, but the court was sufficiently unimpressed with his explanation and decided to name him.

In a later case, BCP Council v A [2020] EWFC B4 (28 February 2020), the Re W principles were considered in the case of a general medical practitioner. The court - by agreement with the parties - decided not to name him, but to send the judgment for him to consider any ‘training need and his future practice’ (the procedures were also considered in relation to a company director in the case of Pierhead Drinks Ltd v The Commissioners for HM Revenue and Customs (Tax) [2019] UKUT 7 (TCC) (23 January 2019)).

So, although the criticism of a professional might be considered a breach of human rights, English and Welsh law does not consider that any procedures should be adopted to protect the reputations of expert witnesses.

Irish law provides an interesting comparison, in that the right to a good name is enshrined in Article 40.3.2 of the Constitution of Ireland (Bunreacht na hEireann). It is a longstanding rule that, in tribunals of inquiry or parliamentary inquiries, any person whose reputation is at stake is entitled: (a) to a copy of the evidence that reflects on his good name; (b) to cross-examine by counsel his accusers; (c) to give rebutting evidence; and (d) to address by counsel the inquiry in his own defence (In re Haughey [1971] 1 IR 217).

In 2015 the Irish Court of Appeal was explicitly critical of a line of questioning of an expert witness, saying: "To my mind, when an expert witness comes to court to give evidence, their professional reputation should not be treated as a disposable and worthless commodity.” [O'Driscoll v. Hurley [2015] IECA 158]

Nonetheless, the Irish courts are as reluctant as English courts to extend a right of representation to non-parties whose reputation is at stake in court proceedings. A professor of economics was denied an opportunity to be represented in a case against his university (Barlow v. Fanning and UCC [2002] IESC 53 (02 July 2002)). A bankrupt was denied an opportunity to be represented in a case against his former company (Quinn & Ors v. Irish Bank Resolution Corporation Ltd & Ors [2012] IEHC 261 (High Court, Kelly P, 4 July 2012)). And a company was denied an opportunity to defend its reputation in a case by shareholders against the Minister for Finance (Dowling v Minister for Finance [2013] IESC 58 (19 December 2013)).

In the last of those cases, the Supreme Court explicitly stated that expert witnesses could not be expected to have representation, saying: “Damage to the reputation of a witness is thus an unavoidable consequence of the trial process. This is anomalous. In other circumstances the law goes to extreme lengths to protect reputation.”

In 2019, the Supreme Court went further: “But sometimes it is necessary to actually say unpleasant things, such as that a person lied or that an expert witness lacked objectivity or skill or deceitfully adopted a point of view. That witness is unrepresented and his or her inability to exercise the defence of his or her reputation is a necessary and inevitable consequence of the trial process. Not everyone can be represented because the consequence would be for cases to become unmanageable.” (Shatter v Guerin [2019] IESC 9 (26 February 2019)).

But the anomalies in the law were exposed a more recent case in 2020 (Seredych v Minister for Justice [2020] IESC 62 (13 October 2020)), where the trial judge was found by the Supreme Court to have made damaging comments about counsel’s competence, including some that were ‘personally insulting’. On appeal, they wrote:

Such comments have no place in a judgment. The relationship between counsel and court must be one of mutual respect. The judge is in a particular position of power and can damage or destroy a career with a remark made in court or in a written judgment. Equally a judge can cause personal distress, not just because the judge holds a position of power, but also because he or she is held in high esteem by the profession and generally by members of society.   It is no part of the judge’s role to be personally insulting to the lawyers who appear before him or her.  While there may be occasions when a judge may in a written judgment expressly doubt the integrity of counsel or his or her professional competence, that is not something to be done lightly and certainly not without giving an opportunity to the lawyer to respond and defend his or her reputation and professional competence.”

In other words, the professional reputation of a member of the legal profession should not be called into question without giving that person an opportunity to respond and defend himself or herself.

The same principles should be applicable to expert witnesses. It must at least be possible to anonymise any generally critical comments about experts, unless it is deemed to be in the public interest to ‘name and shame’ them (as in the Medway Council case above). Where the court does take the view that the criticism should be made public, it should be possible to alert the witness in advance and give them a right of reply. In an appropriate case, if an expert has been criticised without adequate grounds, it is difficult to see why an appeal should not lie if, as held in Re W, such findings could amount to a breach of the ‘private life rights’ enshrined in the ECHR.

Just as counsel should be respectful of the professional reputations of expert witnesses in cross examination, judges in their written decisions should be wary of treating their reputations as a “a disposable and worthless commodity”.

Mark Tottenham BL is the author of A Guide to Expert Witness Evidence (Bloombury Professional, 2019) and The Reliable Expert Witness (Clarus Press, 2021). 

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