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Not Happy with Report: what are the claimant’s options? - Dr Mark Burgin

28/09/21. Dr. Mark Burgin BM BCh (oxon) MRCGP reveals the secrets to effectively challenging a reluctant expert and obtaining a fairer report.

Not Happy with Report? Key points

· Identify all factual errors, faulty logic and areas that have a range of opinion.

· Consider whether an independent audit, complaint or chat will assist.

· Request an amendment when the issue is clear and uncontroversial.

· Obtain further evidence and ask questions when the reasoning is unclear.

· Arrange a further examination only when all other options have been tried.

At the heart of much unhappiness with expert reports is unrealistic expectations, claimants hope that the court will ignore the evidence, that the expert is a hired gun or that the solicitor can win a case. Understanding the limits put upon each of these parts of the legal system can help the claimant. The court can weigh up evidence and choose to ignore evidence that is not reliable but the decision will always be on the evidence. The hired gun expert will trip up and their evidence will be thrown out. The solicitor can only persuade through clever argument and using the system.

Many expert reports contain factual errors, faulty logic and fail to offer a range of opinion. These errors need addressing because they may impact quantum, are easy to challenge and may give rise to a challenge of fundamental dishonesty. Experts do not possess any greater insight into their own failings than any other person and are just as prone to making mistakes. Rarely an expert will be dragged to court to explain their errors but more often they simply move onto their next case. Most of the experts that have been severely criticised in court are experienced senior experts.

Experts typically have a thick skin and are reluctant to change their opinions as they see it as a point of honour. Even where their reasoning is clearly flawed and new evidence is provided many experts prefer to defend their opinion. Using the correct approach and having reasonable expectations will benefit the claimant, the expert and the case. No expert wants to write a rubbish report, no claimant wants to risk paying a fundamental dishonesty fine and lawyers do not want to have an unfair outcome.

What is the problem?

Factual errors are very common but often missed because most errors are not what was included but what was left out. Any section that appears overly brief or lacks specific details is likely to contain errors. A common problem is using opinion words like ‘significant’ or ‘relevant’ in sections where facts are expected. The responsibility for finding these errors often falls to the claimant who arguably is the least qualified person to know what should be included. Even when a claimant notices an error their lawyer does not arrange an audit to check if there have been further omissions.

Faulty logic is often recognised by the lawyers but can be difficult to address when the expert is using technical language. The result is often that the request for amendment is flawed despite making an excellent point. Some experts will reconsider their error at this stage and rewrite the offending passage but many will make the minimal change possible. Other experts will go the other way and replace the passage with the lawyer’s version which often also contains faulty logic. The result can be either little progress or a fatally flawed report. The best approach is an insightful question ‘so you are saying that …’ as this helps the expert see their logic from another person’s point of view.

Range of opinion is perhaps the least complied with part of CPR35 as few experts use a range of opinion and those that do often make errors. The correct approach is to say...

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