Discrepancies in Court: The Liability and Responsibility of Expert Witnesses
Walker v TUI UK Limited (2021), a recent case heard in Manchester County Court on 14 January 2021, has shed some light on the responsibilities and liabilities of expert witnesses in court proceedings. In this case, Mr Walker and his wife brought a claim against a holiday provider, TUI, after they developed a gastric illness while staying in one of TUI’s hotels. TUI successfully defended the claim but did not recover their costs. In response, they applied to the court to have the medical expert added to the claimant’s case, so that they could seek costs against him, alleging that his conduct had been substandard. The application was resoundingly dismissed, but the case is important for two reasons: first, it clarifies the rare circumstances in which an expert witness might be liable for their conduct in court; second, it highlights the responsibility of medical experts in identifying and dealing with discrepancies in a claimant’s testimony.
In this post, we look at the details of the case, as well as at some of its ramifications for expert witnesses, particularly in psychiatric medico-legal cases.
The case
As mentioned, the case involved a personal injury claim brought by Mr and Mrs Walker against the holiday provider TUI, after they had both developed a stomach illness while staying in one of TUI’s hotels. The court asked the solicitors to obtain a medical report from a single joint expert (SJE), a consultant gastroenterologist. A SJE is somebody who is appointed by both parties and is tasked with preparing an unbiased report for the court. In this case, the SJE was proposed by the claimant and accepted by the defendant.
After the SJE completed the report, the defendant was highly critical of it and arranged for the SJE to attend court and be cross-examined. The defendant did not explain why they wanted the SJE to attend court. They also did not specify what kind of questions the SJE would be asked.
During the trial, the defendant successfully demonstrated that there was no evidence that the couple’s stay in the hotel caused their gastric illness. Therefore, the judge dismissed Mr and Mrs Walker’s claim on causation.
Although the defendant was successful, they did not recover their costs due to what is known as qualified one-way costs shifting (QOCS). This states that an unsuccessful claimant is not liable for the defendant’s costs in a personal injury claim.
In response, however, the defendant attempted to shift the focus onto the SJE. They argued that the SJE’s report had been substandard and claimed that the SJE was “not an expert.” They claimed that this had forced them to take the case to trial, thereby incurring significant additional expenses. They argued that the expert witness was liable for those expenses.
The liability of expert witnesses
In response, the judge noted that to succeed in a claim against a third party (the SJE), who was not originally involved in the case, the defendant would have to demonstrate a high level of proof to establish that the third party had exhibited “gross dereliction of duty or recklessness.” He pointed to the judgment in Phillips v Symes (2004), which stated that while experts can breach their duty and be criticized by the courts, they would have to demonstrate “exceptional” forms of misconduct to be liable for costs.
Furthermore, the judge also clarified that there are specific steps that should be followed by defendants or claimants if they want to take the unusual step of cross-examining an SJE in court. The judge pointed to guidance issued by the Court of Appeal in Kopek v NatWest Bank PLC (2002), which states that:
It is obviously sensible that if a single joint expert is (unusually) to be subject to cross-examination, then he or she should know in advance what topics are to be covered, and where fresh material is to be adduced for his or her consideration, and this should be done in advance of the hearing.
The judge found that the defendant had made no effort to issue such a warning to the SJE, nor had they made him aware that they were going to pursue costs against him.
In response to the defendant’s claim that the SJE was “not an expert,” the judge turned the tables back on the defendant. The judge held that it is the responsibility of the lawyer instructing the SJE to verify whether or not they are qualified:
I would expect any prudent lawyer, when provided with the curriculum vitae of a proposed SJE, to make their own enquiries as to his or her expertise before agreeing to accept said expert.
The responsibilities of expert witnesses
In outlining his ruling, the judge also laid out the responsibilities of expert witnesses when interviewing claimants and providing reports:
A claimant can provide one version of events to a medical expert, which version when tested during cross examination does not stand up to scrutiny. I do not see it as the role of the expert to interrogate a claimant at length. An expert takes the medical history described by a claimant in good faith, unless there are serious discrepancies, and then I would expect an expert to comment on those. In this case, the claimants ‘stuck to’ their version of events until they were cross examined. They lost primarily because I did not accept their evidence.
There are two important points to note about this. On the one hand, the judgment clearly states that a medical expert can take it in good faith that the information they are provided with is accurate. It is not the job of a medical expert to decide whether or not the report provided by a claimant matches the actual facts of the case. That is for the courts to decide.
On the other hand, a medical expert does have a responsibility to point out any “serious discrepancies” between a claimant’s account and their medical records. One of the problems in Walker v TUI (2021) was that the SJE did not have access to (or did not have time to check) the claimant’s records. The SJE was instructed over the phone and could only base his report on what the claimant told him. In cases where the SJE is able to review the medical records, though, then they should make the judge aware if they encounter any discrepancies. The question of what constitutes a “serious” discrepancy is at the expert’s discretion, but Giles Eyre argues that it is anything that might have a material impact on the expert’s opinion or the court’s understanding.
Why might discrepancies arise?
As in everyday life, there are many reasons why a discrepancy might arise between a claimant’s medical records and their account of an event. For example, the claimant may simply have forgotten what happened. Alternatively, the records may be wrong; it may be that not all of the relevant information was recorded at the time. While such discrepancies are often the result of genuine mistakes, they may also be due to manipulation or misdirection on the part of the claimant or the record keeper. Again, it is not the responsibility of the expert witness to make a definitive decision about such matters; their task is simply to bring discrepancies to the court’s attention.
If possible, the medical expert should also give the claimant the opportunity to respond to or clarify those discrepancies. For example, if a claimant maintains that they have no history of mental illness, but their records show that they were treated for depression, then the expert could ask them to reconsider their account. Again, it may be that the claimant had simply forgotten about a brief course of treatment that they had received. Alternatively, they may not even have been aware of their diagnosis.
This highlights the specific importance of these matters when it comes to psychiatric medico-legal cases. Not only are the case histories of people with mental health disorders long and complex, but they are also influenced by people’s psychology in the present. An individual’s perception of themselves and their situation will influence how they tell their story. An individual’s mental disorder may not have been apparent in the past, or it may have developed at a later stage. If that person’s mental state (either in the present or the past) seems to be impacting their evidence, however, then this would be a point of interest to the court. This is the kind of expertise that a psychiatric SJE can provide, based on their knowledge of cognitive functioning and their understanding of the different ways in which a person’s mental state might impact their understanding.
Summary
The case of Walker v TUI UK Limited (2021) raises several important points regarding the liability and responsibility of expert witnesses. In general, the case reaffirms that expert witnesses are highly unlikely to be liable for the costs of either claimants or defendants, even if their evidence is ultimately dismissed by the court. In Walker v TUI Limited (2021), the case was thrown out because the claimant could not establish causation, but this was not the fault of the SJE. An expert witness would have to be guilty of a “gross dereliction of duty” to be liable for damages in court. In the case of SJEs in particular, since both parties have the opportunity to vet the expert witness who is instructed, it is the responsibility of those parties to ensure that the expert is up to scratch.
That being said, Walker v TUI Limited (2021) also demonstrates that experts should use their common sense and critical thinking to assess whether or not they can take a claimant’s report at face value. They should generally assume that the report is given in good faith, but if there are reasons for them to believe otherwise, then they should make these known to the court. They should point out any discrepancies and, where possible, give the claimant an opportunity to respond to them. While it is not the responsibility of an SJE to interrogate a claimant, they should use their expertise to bring any inconsistencies to light.
Finally, while these matters are important in all medico-legal cases, they have a particular relevance in psychiatric cases due to the complex nature of psychiatric disorders. As a claimant’s state of mind can influence their memory or understanding in both the present and the past, this can lead to complicated case histories with conflicting versions of events. Again, it is not an SJE’s job to determine exactly the facts of a case (that is always a matter for the courts), but they can use their understanding of psychological functioning to highlight any discrepancies, thereby providing a judge with a range of different interpretations of the relevant information.
This post is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.