EXP v Barker [2015]

In EXP v Barker [2015] EWHC 1289 (QB) (7 May 2015) the Claimant was a Barrister who had been involved in a road traffic accident in 1991 where she suffered neck and back injuries. In 1997 she suffered a relapse and then onwards she was referred by her GP to hospital where she was seen by Doctors specialising in the spine and brain. She was informed in 1999 that her brain scan was normal.

In September 2011 the Claimant collapsed, unconscious. A CT scan revealed most likely an aneurysm had ruptured. She was eventually discharged into the care of the Community Stroke Rehab team.

The Claimant took her 1999 MRI scan and brain scan with her to an outpatient’s appointment in December 2011 where the Consultant in his letter to the Claimant’s GP noted there had been a small aneurysm which he believed was there 12 years before.

The Claimant alleged negligence by the Defendant and his failure to identify and report the aneurysm in the 1999 brain scan.

Expert evidence was called upon by the Claimant and the Defendant. The Claimant’s expert was a consultant neuroradiologist at The London NHS Trust also a consultant in a private hospital.

The Defendant’s expert was an honorary consultant neuroradiologist at a NHS Trust who had been consultant neuroradiologist at the Radcliffe in Oxford from 1999-2004.

Both witnesses became the centre of the trial. They were rigorously cross-examined and both reiterated what was in their reports.

In the evidence at the trial the Defendant’s CV was produced which revealed he had been at the same hospital in Oxford as his consultant expert who, during that time, had been a consultant neuroradiologist, when he, the Defendant, was from 1984 a registrar in radiology to 1991 when he was a senior registrar in neuroradiology. The Defendant did not mention the expert in his CV.

The Honourable Mr Justice Kenneth Parker observed that it would be reasonable to infer on comparing the two CVs that from, in particular 1989 when the Defendant became senior registrar, he would have come into contact with his expert witness.

Mr Justice Kenneth Parker considered in his judgment, it was a failure on the defence side and their expert consultant, not to have disclosed this association to the court to allow the court to assess how that relationship could affect that consultant’s impartiality to act as the Defendant’s witness. Claimant’s counsel asked for this evidence to be excluded citing paragraph 33-29 in Phipson on Evidence. Justice Parker observed that the authorities put an emphasis on early disclosure in matters of conflict and he cited the guidance given by the General Medical Council (GMC), with effect from the 22nd April 2013, where the importance of early disclosure is urged when acting as a witness in a court case. The Judge felt that Phipson on Evidence summarised

“the principles that emerge from the authorities with admirable lucidity, as follows:

The current state of the law may be summarised by the following principles.
(1) It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.

(2) The existence of such an interest, whether as an employee of one of the parties or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection.

(3) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.

(4) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether an expert witness should be permitted to give evidence.

(5) The questions which have to be determined are whether:
(a) the person has relevant expertise; and
(b) he is aware of his primary duty to the Court if they give expert evidence, and are willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty. “

(6) The judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.

(7) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.

Even where the court decides to permit an expert to be called where his independence has been put in issue, the expert may still be cross-examined as to his independence and objectivity.”

Justice Parker observed that the authorities put an emphasis on early disclosure in matters of conflict and he cited the guidance given by the General Medical Council (GMC), with effect from the 22nd April 2013, where the importance of early disclosure is urged when acting as a witness in a court case

The GMC in their guidance referred to matters where people have been professionally and personally involved and cautioned that their guidance on conflicts of interest must be followed. Further, the people instructing must be made aware of the relationship, the Judge and other party in the action. It is then open to the Judge to decide whether that person can continue to act as the expert in the matter.

Justice Parker considered that failure to make early disclosure, in particular where the conflict is obvious and is liable to raise doubts, added to the concern of the court that the witness was compromised and thus his evidence be excluded.

The Defendant’s expert made his apologies to the court. He had remained impartial and objective as the expert but Justice Parker had doubts after another matter came to light, concerning a study which had been criticised and had been included in a report on behalf of the Defendant, written by a consultant neurosurgeon which the Defendant had not relied upon nor was that person called to give evidence.

When the Defendant’s expert was cross-examined he agreed that the study referred to in that report could not be relied upon to be accurate due to the criticisms surrounding it and that he should have drawn this to the attention of the court sooner. He reasoned that this was not his area of expertise and he could not make comment on that evidence.

Justice Parker did not accept this as the Defendant’s witness was presented as an extremely respected neuroradiological expert with a vast knowledge of aneurysms. He believed the failure to make this aware to the Court led him to doubt the expert’s impartiality in this case.

Justice Parker firstly was inclined to rule the expert’s evidence as inadmissible as he could not be certain of its impartiality and objectivity but he heard the evidence as, otherwise, it would have been detrimental to the Defendant.

He did not doubt the expert’s competence and his ability to assist the Court on the remaining central issue. He considered that he would act fairly and allow the evidence but he would keep in mind the independence and objectivity of the Defendant’s expert when weighing up his evidence.

As a consequence he preferred the Claimant’s expert.

“I have to say, with considerable regret, that by reason of the matters set out earlier in this judgment my confidence in Dr Molyneux’s independence and objectivity has been very substantially undermined. On the other hand I have complete confidence in the independence and objectivity of Dr Butler, and I much prefer to accept his judgement, formed on the basis of his great experience and skill, that

(i) a competent neuroradiologist would have been considerably troubled by the relevant images from the 1999 MRI scan; and

(ii) would not have concluded that those images could be prudently and adequately explained by “normal brain anatomy”, contrary to Dr Monlyneux’s view; and (iii) would have concluded that the images did show the presence of an aneurysm.”

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