Date 1 January 2006
A recent decision of the High Court has raised the stakes for expert witnesses employed in civil proceedings. It has long been established that the primary duty imposed on the expert is “to assist the Court on matters within their expertise” and any failure to reach this standard had potentially serious consequences for the party who had instructed the expert. This could, for instance, mean a ruling that the expert evidence relied on is inadmissible, and this in turn could mean the difference between success or failure. Following the judgment of Mr Justice Peter Smith in Phillips & Others v Symes & Others [2004] EWHC 2330 experts themselves may be facing serious consequences for their shortcomings – being joined to the proceedings and possibly being found liable to pay wasted costs of the action.
Not only did the psychiatrist in this case face public criticism of an opinion formed on a wholly inadequate basis: imprecise research into the background of the patient’s condition, a consultation of “just one hour”, reliance on an incomplete report of a consultant colleague and a failure to reconsider his position in the light of material inconsistent with his position. The Court also joined him as a party to the costs proceedings on the basis that his complacency was a flagrant and reckless disregard of his duties to the Court and may have caused costs to be incurred unnecessarily.
No decision has yet been reached by the Court as to whether the expert in this case breached his duty to the Court or as to any financial penalty that should be imposed on him. However, the conclusion for any prospective expert is clear: he/she must understand their duties to the Court, sign the declaration in their report with an awareness of the significance this entails and from then on act in accordance with that declaration. It may prove expensive not to heed this warning.
For further advice or guidance, please contact Robert Ryall or Lynsey Wilkins on 01727 798092 or at robert.ryall@salaw.com or lynsey.wilkins@salaw.com.
© SA LAW 2006
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