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Insights from APIL Training - Dr Mark Burgin

23/01/20. Dr. Mark Burgin BM BCh (oxon) MRCGP attended APIL ‘legal training for expert witnesses’ and shares some of the learning points.

Sam Elsby from Dean Wilson LLP (APIL Vice president) gave a number of tips at the teaching session for expert witnesses.

The session was unusual as it started with the words ‘Some lawyers have some preconceived ideas of experts, and some experts have some preconceived ideas of lawyers.’

The difficulties between experts and lawyers was a golden thread running through the training session and allowed insights that I feel should be shared.

The Solicitor is an "Officer of the Court"

One misconception held by experts is that solicitors can do anything they like to win the case from shopping for experts to hiding evidence that does not support their client.

Mr Elsby explained that solicitors must obey the law, follow their code of conduct AND ensure the efficient and proper administration of justice.

Three relevant examples from the SRA code of conduct are; you do not attempt to deceive or knowingly or recklessly mislead the court; you are not complicit in another person deceiving or misleading the court; immediately informing the court if during the course of proceedings you become aware that you have inadvertently misled the court.

Litigation Privilege

All documents that have litigation as their dominant purpose are privileged so any reports that are sent to the expert are subject to privilege.

This means that expert must not disclose them but if the expert has based their opinions upon those documents - where does that leave the expert?

This was clearly a problem that many experts at the meeting had found difficult and would like to ask more questions perhaps in a Webinar.

Evidence obtained illegally

‘In civil claims, the starting point is that if evidence is relevant then it is admissible’ Jones v. University of Warwick [20031 1 WLR 954.

This was a surprise to the experts present who have experience with the problem of how to assess dodgy evidence that they have been sent.

As it may take an expert to understand the relevance of the evidence our reasoning is essential for the court to determine whether to exclude evidence.

Professional-Legal Mind

Expert must understand the role and duties of a Court Expert and must demonstrate what has been called a "medico-legal sic mind".

In the case Loveday v Renton [1990) 1Med LR 117 Lord Justice Stuart-Smith said of an expert ‘The Court has to evaluate the soundness of his opinion’

This includes internal consistency and logic, the care taken, precision and accuracy of thought, whether they concede points and demeanour in the witness box.

Unconscious v conscious exaggeration

In Thorp v Sharp [2007] EWCA Civ 1433 the court of appeal considered that it was possible for a claimant to exaggerate but not be lying.

Experts are often asked to consider whether a claimant is honest and reliable or not, but this allows for the possibility that they are honest but unreliable.

With fundamental dishonesty defence being used more commonly this allows an expert to find a middle way to find reasonable explanations for inconsistencies.

The Best Expert

The significance of proportionality when choosing experts (the right expert would be different in a low value case than the one if the value of the case was larger).

The "best evidence" rule states that a party must produce the best evidence which the nature of the case will permit.

This may fall the expert to consider whether they are the best expert that the case can sustain or the lawyers should pay more for an expert with different skills.

Other issues worth noting

  • The admissibility of hearsay evidence in civil cases (if the person giving the evidence is identified and the circumstances when they heard the evidence are recorded) was a surprise.

  • Where an expert attempts to determine the facts rather than assist the court interpret the evidence they are making their job more complex as well as exceeding the limits. Sinclair v Joyner [20151 EWHC 1800 (QB)

  • Request to amend reports from solicitors can lead to a prison sentence to the expert (Dr Zafar case).

  • Written Part 35 questions can be extensive but should not ‘amount to cross examination’ and ‘omissions in reports are best dealt with by supplemental reports’.

Conclusions

The extraordinary number of important issues discussed will not reach all experts even with the present format of a single session.

APIL should be applauded for this initiative but even with 10 sessions a year would take 50 years for every expert to attend even this introduction.

Even experts who are very familiar with the procedure rules may not have known the legal basis of the issues and be interested in further training.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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