Conflicts of interest

Posted on Tuesday, 5th Jul, 2016 at 08:21:35 PM
Expert witnesses have a duty to the court to be independent and objective in the evidence they provide. Judges may, in the exercise of their discretion, reject altogether evidence tendered by experts whom they know to have or suspect of having a financial stake in the outcome of the litigation. This is the principal reason why experts should never accept instructions to act as an expert witness on a no win, no fee basis.

For much the same reason, personal, professional or financial links with parties to a dispute, or with businesses in competition with them, would normally debar an expert from acting as an expert witness in any litigation in which those parties are engaged..

Expert witnesses need to be particularly mindful of the risks involved in acting in cases involving former clients, lest this should prompt the allegation that knowledge or information gained while working for the former client is being used to this clients disadvantage. Whenever there is a conflict of interest of this kind, or it appears that there may be one, the expert concerned should seek to obtain the informed consent of both the old and the new client before agreeing to act for the latter.

This may not be as straightforward as it sounds. It will involve at the very least disclosing to each client the others name and the nature of the assignment completed or envisaged. As a first step, then, it would be necessary for the expert to clear with each client what he proposes to tell the other. In securing the former clients consent, it may help if the expert has returned all the papers relating to the case or cases in which evidence was given on behalf of the former client. If that clients consent should not be forthcoming, however, the expert ought to decline to be instructed in the new case.

How to handle a potential conflict of interest

The Court of Appeal in Toth v Jarman4 has given guidance on how expert witnesses should handle potential conflicts of interest.
This was an appeal by a claimant in a clinical negligence claim. The defendant was a general practitioner who treated the claimants son. Despite treatment, the son died and the claimant sought damages for psychiatric injury based on the defendants alleged negligence. The Medical Defence Union (MDU) was acting for the defendant and instructed an expert to report. The experts evidence was favourable to the defendant, and at trial it was preferred by the judge to the claimants experts evidence. However, on appeal, the claimant said there had been material non disclosure by the expert of a conflict of interest arising out of the fact that the expert was a member of the Cases Committee of the MDU at the time the report was written. The Cases Committee is the part of the MDU that takes decisions on whether to defend any given action.

The Court of Appeal said that a conflict of interest does not automatically disqualify an expert from giving evidence. The key is whether the experts opinion is independent of the parties and the pressures of the litigation. A party that wishes to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible so that the other party and the court can properly assess the conflict of interest. It was not enough for the defence to say the claimant had not asked about the experts relationship with the MDU. If there was a conflict of interest that was not obviously immaterial, it should have been disclosed by the expert to her instructing solicitors and from them to the claimants solicitors.

However, in rejecting the appeal, the Court of Appeal said the practice of the Cases Committee of the MDU to exclude an expert involved in the litigation from discussions about the case meant that membership of the Committee would not automatically disqualify that expert from being an expert witness. Furthermore, the expert had, in fact, ceased to be a member of the Committee 6 months before the trial. In the circumstances, even if the experts conflict of interest had been a disqualifying interest initially, it had then become immaterial, and so there was no basis for interfering with the judges decision.
Guidance for experts

The Court of Appeal then went on to consider what should happen in any similar future situation.

The expert should not leave undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the courts decision. The conflict of interest could be of any kind, including a financial interest, a personal connection, or an obligation, for example, as a member or officer of some other body. But ultimately, the question of what conflicts of interest fall within this description is a question for the court, taking into account all the circumstances of the case.

Without wishing to be over prescriptive or to limit consideration by the Civil Procedure Rules Committee, we are of the view that consideration should be given to requiring an expert to make a statement at the end of his report on the following lines
a. that he has no conflict of interest of any kind, other than any which he has disclosed in his report;
b. that he does not consider that any interest which he has disclosed affects his suitability as an expert witness on any issue on which he has given evidence
c. that he will advise the party by whom he is instructed if, between the date of his report and the trial, there is any change in circumstances which affects his answers to a or b above.

As we see it, a form of declaration to this effect should assist in reminding both the expert and the party calling him of the need to inform the other parties and the court of any possible conflict of interest.

However, there appears to be an inconsistency in what the Court of Appeal has said about a party not needing to notify the court or the opposition of an obviously immaterial conflict of interest, when the proposed experts declaration contains no such qualification. Hopefully the Civil Procedure Rules Committee will refine the wording of the declaration on its passage into the Rules. For now, though, experts ought to adopt the form of words suggested by the Court of Appeal

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