The court has recently determined an appeal by the defendant on a discrete case management decision relating to whether the court can restrict permission for a party to rely upon a chosen medical expert if there is information about that expert on the internet which might cause the claimant to not give their “best evidence” during an examination as a vulnerable witness pursuant to CPR Practice Direction 1A.
Keoghs Associate Lauranne Nolan, who acts on behalf of the defendant and its insurers, considers the decision and the potential implications.
The claimant sought damages in respect of psychiatric injuries in relation to allegations of sexual abuse between approximately 1986 and 1992 when the claimant was between the ages of 15 to 19 years approximately.
At the first CCMC the district judge was invited to refuse permission for the defendant to instruct its chosen expert as this was likely to diminish the quality of her evidence because the claimant was a vulnerable witness for the purposes of the proceedings. This was on the basis that there was information available on the internet about the defendant’s expert and if the claimant hypothetically searched the defendant’s expert’s name, she may have come across this information resulting in her not giving her “best evidence” for the purposes of the proceedings.
Notwithstanding that, the district judge found that the defendant’s expert was a suitable expert and that he had the appropriate expertise to be a medico-legal expert in cases of this nature; the district judge agreed that based on information which was available on the internet about the defendant’s expert, which the claimant may well find out if she did research before attending any examination, this could have had a dramatic effect on her as a vulnerable party. Accordingly, the district judge refused permission to allow the defendant to rely upon its chosen expert, whilst granting permission for the defendant to rely upon any other named psychiatrist.
Determining the appeal in the defendant’s favour, the judge found that the district judge was incorrect in his findings and the defendant was permitted to rely upon its chosen expert.
The defendant’s appeal was based upon two grounds:
a. in allowing unsubstantiated allegations of impropriety and lack of independence against a professional person to be referred to and adopted
b. in placing any weight upon allegations not supported by evidence
c. in making a finding for which there was no evidence before him as to the effect on the claimant’s evidence of being examined by the defendant’s chosen expert as opposed to any other forensic psychiatrist for which he gave the defendant’s permission.
The defendant submitted that the practice direction was created to introduce safeguards for vulnerable witnesses and parties which were similar to those already in place in the criminal and family jurisdictions. It was not to be utilised in order to restrict the right of a party to call a witness of its own choosing under the guise of ensuring the best evidence and full participation of a party.
It was further submitted that if a witness or party was intimidated by a reputation and gave an inconsistent account to the expert that would merely mean that an adverse account existed and would not affect their ability to participate in the trial process and to give their best evidence.
It was further submitted that CPR Part 35 is in fact the principal and only process by which expert evidence can be controlled.
The judge found that care should be taken not to conflate the giving of evidence in court with giving an account or a history to an expert witness, such as a doctor. He also stated that he had little doubt that “giving evidence” under the practice direction was intended to refer to evidence within the trial process. Further, he agreed that it is only CPR Part 35 that can circumscribe expert evidence and there are numerous safeguards built in, including duties owed by experts.
He went further in his conclusion to find that the undoubted primary purpose of the practice direction was to assist the vulnerable party in the trial process as that is the hearing in which evidence is taken and determined by the judge, and where the vulnerabilities are likely to impact on participation.
In respect of the criticism of the defendant’s expert, the judge found it to be immaterial that an expert may have been the subject of criticism in the public arena by others who had been examined. Indeed, the judge acknowledged that if it were otherwise, it would be open to any particular group of claimants (or their solicitors) to launch an internet campaign through blogs and other postings when they were faced with a robust and generally adverse expert in a series of cases.
The judge further stated that any material which might be relevant to restrict the choice of an expert because of the subjective impact on an individual with a particular identified vulnerability required a much higher threshold of proof than that which the learned district judge sought to apply in this case with the material in this case falling significantly short of such a high threshold.
It was never intended that the relevant practice direction concerning vulnerable witnesses would be used to restrict expert evidence; it was intended, quite rightly, to introduce appropriate safeguards for the claimant as a vulnerable witness to give best evidence at trial or any court hearing, which understandably will be very traumatic. The finding, therefore, represents a balanced and sensible outcome relating to the ability of any party to instruct a suitably qualified expert, even in circumstances where the claimant is deemed to be a vulnerable witness.
In addition it provides clarity to parties that objections to experts remain firmly within Part 35 of the Civil Procedure Rules.
For more information, please contact Lauranne Nolan
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