In our latest article, MAPS Managing Director, David Stothard, considers the recent case of Hertfordshire County Council v Mother and Others in which an expert witness was granted anonymity after changing their opinion upon considering the evidence in the case.
HHJ Clarke recently dealt with this question in Hertfordshire County Council v Mother and Others [2022]EWFC107. Although this was a case in the family court, the judgment has much wider persuasive relevance (even if not binding authority).
It is useful to understand that this was an application by the local authority to attempt to establish the cause of significant head injuries sustained by a relatively new-born child. Expert evidence was required from two court appointed experts, both consultant professors, one of paediatric neuroradiology (NR) and the other of paediatric radiology (PR).
Ultimately, the court decided that there was no evidence on which the court could make any finding other than that the injuries were caused accidentally, as stated by the parents. The parents felt that they had been put through an appalling ordeal to reach this outcome, which they had been clear of from the very beginning and were very unhappy about the expert evidence used in the case. In respect of NR and PR, the parents said that their preparation of the case was careless at least; further in respect of NR that his evidence was also misleading. The judge gave permission for the non-anonymised judgment to be disclosed to the GMC, to enable a complaint to be made about the medical experts.
The judge had to decide whether NR and PR should be named in the publicly available version of the judgment. Both experts were allowed to make submissions to the court on that point. Both asked for their identity to be anonymised, but the judge made a different decision in respect of each of them.
It should be noted that NR’s evidence to the court had been seriously criticised. He had failed to properly consider important documentation sent to him and had not advised his instructing solicitor that he had been unable to access some medical records. Despite charging for 45 hours of his time in preparation of his evidence, he failed to read the records properly and had not identified a crucial neuroradiological consensus statement from GOSH, which he did not have and should have seen. When questioned about it in evidence at court, he said that he did not agree with the consensus statement.
In contrast, when PR gave evidence in cross-examination, she was asked to consider relevant literature which she had failed to identify when providing her report. Having done so, she recognised and accepted the validity of the consensus opinion which stated that the injuries were compatible with the history given and so could have happened as described or been inflicted. She had expressed this opinion in earlier evidence but not her final report, and now reverted to the earlier opinion. NR was aware of PR’s change in opinion before he gave evidence.
When making his decision, HHJ Clarke noted that the professional qualifications of the experts were not in doubt and that they were suitably qualified to give evidence in the case. He was also conscious of the potential impact of publication of the judgment without anonymisation, stating that: “Nobody deserves to be vilified, targeted, or harassed just for doing their job. Sadly, it seems commonplace in modern society, where information can spread around the world in seconds and commentators can mis-report information simply to increase readership.”
He had to weigh up the risk of that in this case compared, for example, to the public interest in a ‘right to life’ case and the polar views which may apply in such a case. This involved him in a careful balancing of the need for justice to be open and subject to legitimate scrutiny, the parents’ right to free speech, and the medical experts’ right to private life. He was guided particularly by the House of Lords decision in Re S (a child) (Identification: Restrictions on publication) [2004] UKHL47 which confirmed the approach to the balancing exercise of competing rights under articles 8 and 10 of the ECHR (incorporated into UK law by the Human Rights Act 1998), where neither right has precedence over the other.
What was also made clear was that the approach which had previously been followed in A v Ward, which said that anonymity is not to be afforded to a class of professionals unless there are compelling reasons for doing so, was incorrect. He accepted that there is no starting point that compelling reasons must be established before anonymity is granted.
In seeking to find the right balance, HHJ Clarke allowed each expert witness to make submissions in response to his draft judgment and offered them the opportunity to make oral submissions to the court. Neither expert chose the latter option, but both made written submissions with the benefit of legal advice, which HHJ Clarke considered in detail.
He was not impressed by NR’s approach, which may be summarised as seeking to blame others for his evidence not being to the required standard and, in essence, saying that he would not make the same mistake again. Judge Clarke found that this did not minimise the criticism of NR’s evidence put by the parents and upheld by the court. He found that as a medical expert in a public law case, NR could not have had any expectation of anonymity and it was not appropriate to ask for the parents’ right to free speech to be curtailed to avoid the consequences of his own performance in this case.
In contrast, PR sought for findings in relation to her expert evidence to be omitted from the judgment if they were not upheld. Although PR had changed her evidence, HHJ Clarke noted: “Experts attend court to give evidence on a daily basis throughout the jurisdiction. There would be little point to their attendance if it were not for them to consider their evidence further and decide whether, based on what has been put, they should revise their opinion. The fact that an expert changes their opinion does not, of itself, amount to be something for which they should be criticised.”
He decided it would not be correct to omit relevant submissions as the context was key – it would be hard to say somebody did or did not do something they were accused of without saying what they were accused of. That would particularly be the case where there was some level of understanding from a professional readership.
HHJ Clarke concluded that because the court accepted the criticism of NR, he should be named in the publicly available judgment. However, there was a risk, even with an informed and knowledgeable readership, that PR will be “tarred with the same brush”. He was, therefore, satisfied that PR should not be named.
For the expert witness working in personal injury and clinical negligence cases, this judgment makes it clear that there would need to be exceptionally unusual circumstances for there to be consideration that the expert’s identity be anonymised. Even if those circumstances arose, the judge would still be required to undertake their assessment by balancing the competing rights of the parties, expert and public interest before making any decision that anonymisation was appropriate.