In our latest article, Giles Eyre considers the issues that arise when an expert introduces factual evidence into their report.
The issues
What is the status of information that an expert obtains from talking to people in the course of preparing a report? For example, a clinical expert (for both sides) will commonly speak to the claimant in the course of the examination, record what has been said (where it is material) and may have relied on it in coming to an opinion. Less commonly, the expert speaks to family members or professional carers, or even friends or work colleagues. What is the status of that evidence, both in the report and if the matter reaches court?
The rules
‘The expert’s report must contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based.’ PD35 3.2(3)
Clearly, if of any significance, such conversations (with the claimant, their family, carers or others) will elicit facts. Therefore, as ‘facts’, the information provided by such people must, so far as it is relevant to the expert’s opinion, be set out, and attributed, in the report. They may also amount to part of the expert’s instructions around which the report is to be framed, as they will assist in defining the issues which the expert is to address.
The fact that these ‘instructions’ are oral, or that they are provided subsequent to the expert being instructed, does not prevent them being instructions:
‘The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.’ CPR 35.10(3)
The importance of including a full account of the information obtained by the expert is emphasised in the Guidance for the Instruction of Experts in Civil Claims (Guidance 55):
‘The mandatory statement of the substance of all material instructions should not be incomplete or otherwise tend to mislead. The imperative is transparency. The term “instructions” includes all material that solicitors send to experts. These should be listed, with dates, in the report or an appendix. The omission from the statement of ‘off-the-record’ oral instructions is not permitted. Courts may allow cross-examination about the instructions if there are reasonable grounds to consider that the statement may be inaccurate or incomplete.’
It should be noted that the expert can be cross-examined on these conversations if it appears that the record of them is ‘inaccurate or incomplete’. Therefore, if the expert is relying on something spoken to them in the course of reporting, then it is essential to have an accurate record of that conversation. A précis, or use of the expert’s words in substitution for the words of the individual concerned, will not generally suffice.
Can the expert give evidence of facts?
There is no doubt that an expert can give evidence of fact like any other non-expert witness. Indeed, the statement of truth requires the expert to confirm that they have made clear which facts in their report are within their own knowledge and that those facts are true. When those facts are facts obtained by the expert through one of their senses – seen, heard, smelt, etc. – that is relatively straightforward. ‘The range of movement in the joint was reduced…’, ‘the skin was unusually pale…’,‘the claimant appeared to be in pain…’, ‘when measured, there was disparity between the left and right wrist…’.
But, when the facts are those provided by another person – that is hearsay, what that other person said to the expert – then the expert cannot confirm the truth of what is said by that other person, but only that that other person provided that information to the expert.
The position is further complicated depending on the stage in proceedings when the expert has such a conversation.
The rules on proving facts
CPR32.2 provides that ‘the general rule is that any fact which needs to be proved by the evidence of a witnesses is to be proved at trial by their oral evidence’. CPR32.4 goes on to provide that the court will order parties to serve witness statements in relation ‘to any issue of fact’ to be decided at the trial, and that a witness statement contains the evidence the witness would be allowed to give orally. Therefore, if any of the facts obtained by the expert from such a person are disputed by the other side in the litigation, those facts would need to be proved by the evidence of that person at trial, and a witness statement made by that person and containing those facts would need to be prepared for trial, and, therefore, served on the other side in accordance with court directions. Court directions will normally require all witness statements to be served a considerable period before any trial date.
The expert including facts provided by others in the report
In practice, if the claimant’s expert, in a report prepared prior to the commencement of proceedings, records what the expert was told by the claimant, the solicitors can be expected to ensure that, so far as they are material to the expert’s opinion, they will be included in the witness statement of the claimant which they prepare and, subsequently, serve on the defendant’s lawyers. The same would apply if a family member or carer, for example, provided the expert with material evidence; the solicitors should identify that a witness statement should be obtained from that person containing that evidence, hopefully in the same terms as the evidence reported in the expert’s report.
If, in an updating or supplementary report obtained in the lead up to a potential hearing, the expert accepts evidence from a third party on which the opinion is then based, this is likely to be challenged, and it being generally too late by then to file further witness statements, that evidence, and the opinion based on it, will be cut from the expert’s report.
An example of the problem the expert can create
A recent example is given by barrister Simon Brindle in an article Experts and Factual Evidence: a short case study. The claimant suffered a head injury in a road traffic accident and the main dispute in the case centred around the extent and severity of any brain injury sustained, and whether his ongoing symptoms were organically or psychiatrically mediated. It was the claimant’s case both that his ongoing symptoms affected the amount of work he could undertake, and also created a need for ongoing support. He was a single man, and some of that support was provided by his work colleagues. The claimant lacked insight into his condition, and so could not give a good account of the support he received. He had, though, served a witness statement from one of those work colleagues in accordance with the court directions.
When, eighteen months later, the care experts were required to finalise their evidence, the claimant’s circumstances had changed, and he had reduced his hours at work. Wishing to update herself, the claimant’s care expert took it upon herself to contact the work colleague direct for an update and included in her report an account of what the witness had told her. The court found that it was improper to include the work colleague’s evidence in this manner. Experts should express their opinions only on the facts available to them and, if more information was required, they should seek it from their instructing solicitor. Fairness between the parties required that both sides’ experts should prepare their reports with access to the same evidence; both sides experts should give evidence and form their opinions on the same facts.
The expert should not be a fact finder
The expert’s role is not that of a fact finder or to become involved in the exercise of gathering evidence in the case. In his judgment in Charnock v Rowan (2012), Sir Stephen Sedley remarked: “Forensic medical practice has been disfigured in the past by practitioners who took on the role [of a sleuth].” For example, in Williams v Jarvis (2008), the defendant’s expert who, having heard of the existence of a report previously obtained by the claimant which was unhelpful to the claimant, sought a copy of it and passed it on to his instructing lawyer, was severely criticised.
A further example of an expert stepping outside their role arose in the case of Dana UK AXLE Ltd v Freudenberg FST GmbH (2021). The defendants were prevented by the judge from relying on their expert when the report was obtained using information obtained by the expert direct from the corporate client and its personnel, without the involvement of the instructing lawyer.
The expert’s role is to identify to the instructing solicitor what additional evidence might be relevant to the expert’s opinion and from where it might be obtained, but not to obtain it themselves.
Conclusion and learning points
- An expert must distinguish facts and evidence in preparing and writing a court report.
- Experts are not trained in the taking of evidence or preparation of witness statements for legal purposes. A lawyer, suitably trained, should obtain clearer and more reliable evidence from that person than the expert will.
- It would not be unusual to find that the account obtained by the lawyer from the witness is not identical to the version recorded by the expert in the expert report.
- It is, therefore, advisable that if the expert identifies that such evidence is or may be available, and is likely to be material to their opinion, they should ask their instructing lawyer to obtain a witness statement covering the matters identified by the expert, and, if time allows, await completion of the report until the witness statement is made available. If time does not allow, then the expert should consider how likely this evidence is to be contentious and take care, commensurate with that likelihood, to ensure that the report accurately records that person’s material evidence – while still advising the lawyer to consider obtaining a witness statement.
- The expert’s approach must be adapted to the circumstances of their instruction and to the nature of the case they are dealing with. In a simple low-value claim, the expert would not be thanked for delaying the report while awaiting a witness statement from the claimant dealing with an outline of their recovery from an injury. In a complicated clinical negligence claim of significant value, where the expert has identified that a number of family members may have evidence relevant to an important issue in the claim – for example whether or not the claimant was conscious at a particular time, or the details of information provided to the claimant during the process of consenting – then the expert should, if possible, await provision of witness statements obtained by the instructing lawyer.
Giles Eyre is a retired barrister and an Associate Member of Deka Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published by Professional Solutions Publishing and sold through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .
Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p. and ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’ (normal price £69.95) is available at £50.00 plus £4.95 p&p only direct from the author by email to geyre@dekachambers.com. More information about the books and reviews are available at www.Medico-LegalMinder.net