Swearing on oath

  • Published: September 12, 2019
  • Author: Nigel Poole QC

In the latest of a number of High Court judgments in which judges have strongly criticised an expert witness in the case, Mr Justice Martin Spencer has taken a consultant neurosurgeon to task in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB).

At paragraphs 71 to 74, the judge said:

"I regret to say that, in my judgment, Mr Sandeman's evidence fell far below the standard to be expected of a reasonable, competent expert witness, both in relation to the preparation of his reports and in relation to his preparing to give evidence. I could see no excuse for this whatever. 

"I should say, though, that I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman's written evidence, and this was something which should have been addressed by the lawyers long before the trial. 

"In the end, the continual apologies from Mr Sandeman in the course of his evidence, as the magnitude of the deficiencies became apparent, were embarrassing. 

"Whilst I am considering Mr Sandeman's evidence I can also indicate that his oral evidence was unimpressive. It was intemperate, at one stage he even used an expletive, and there was a failure on his part to address the questions that he was being asked: recognising the difficulties of some of the questions, not just from Ms Vickers for the defendant but also from the bench, he would stray into other areas and different areas so as to avoid answering the questions. I had no doubt, listening to Mr Sandeman's evidence, that this was a deliberate ploy on his part to avoid answering the questions, rather than any kind of misunderstanding on his part as to what he was being asked, and the technique was adopted by him because of the difficulty he found himself in, in addressing the questions."

In some ways, judges are more lenient in their comments on negligent medical practitioners than when they comment on expert witnesses who have fallen short of the standards expected of them.

I don't know why it should be the case, but in recent years a number of the experts who have provoked the displeasure of High Court judges have been neurosurgeons.

Lessons for expert witnesses

For litigators as well as experts, the criticisms that have been raised in a number of cases emphasise lessons to be learned (besides not swearing while giving evidence):

  • The expert should have the appropriate qualifications and experience to provide opinion evidence in the case.
  • Ensure that the expert has seen all the relevant medical records and other documentation before providing a definitive opinion. A common, paginated bundle of records should be provided, to which all experts and lay witnesses can refer.
  • Check that the expert has accurately reflected the factual evidence when providing their opinion.
  • Ensure that the expert has taken into account the other party's case and has commented upon it.
  • Ensure that the expert has applied the proper legal tests, such as 'the balance of probabilities'.
  • Check the published papers or studies relied upon by the expert – do they support the assertions made?

Experts giving evidence at Court impress when they are obviously well prepared, answer questions directly, demonstrate an understanding of the range of opinion (including the other party's case), remain objective, keep to their own areas of expertise, and articulate their opinion succinctly and clearly.

There is no formal vetting process for the selection of experts. Subject to limited oversight from the Courts, parties to litigation are entitled to choose the experts they wish from within the appropriate fields of expertise. As a result, it is often only at trial that an expert's authority and credibility are fully challenged, sometimes with devastating results. 

As an advocate, it is always a difficult balancing act at conferences between thoroughly scrutinising expert witnesses and losing the faith of the client that I am acting in their interests! Experts should not be surprised to find themselves challenged at conferences. It is disappointing when an expert thinks that participating in a conference merely involves picking up the telephone rather than putting in some preparatory work and thinking around the case.

So much in clinical negligence litigation turns on the opinions of expert witnesses, as the case of Arksey demonstrates. Legal representatives have to work hard to ensure that their clients benefit from expert evidence of the standard they deserve.

You can also read more about the case discussed in this blog in Dr Simon Fox QC's 'Ten-point checklist for finalising expert witness reports for exchange'.

***Nigel Poole QC's book, Clinical Negligence Made Clear, is a great introduction to clinical negligence law for non-lawyers, lawyers with no experience of clinical negligence, expert witnesses, and doctors who get caught up in litigation. Buy your copy now.***

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