Identifying and navigating professional and reputational risks as an expert witness

14 June 2024

Expert witness work can be intellectually stimulating and handsomely paid. For some experts, it isviewed as a good way to supplement income with few risks. This article explores four primary risk areas that may result in professional and reputational harm for expert witnesses:

1. Criticism in a public judgment.
2. A professional negligence claim.
3. A third party wasted costs order.
4. Regulatory referral and employment issues.

1. Criticism in a public judgment

Most cases are resolved either through settlement or discontinuance. Therefore, very few cases reach a contested trial where you give oral evidence and are cross examined on your opinion. Despite this, acase should always be prepared on the basis that it might end up at trial and your opinion robustly challenged under cross examination.

Three of the main criticisms levelled at expert witnesses in reported judgments are:

1. The matter doesn’t fall within their expertise.

Experts owe a duty to “help the court on matters within their expertise.

It is important to ascertain from the outset whether the matter falls within the scope of your professional competence. If not, instructions should be declined. It is not essential to share the exact same title, role, position, or qualifications as the person facing allegations, only that you have the relevant expertise on the issues arising on the facts of the individual case.

There is no specific definition of ‘expertise, but it is demonstrated to the court by virtue of anexpert’s knowledge, skill, experience, training, and education.

2. They act as an advocate or ‘hired gun’ for the party instructing them.

Experts should assist the court by providing “objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.

Your obligation is to assist the court and not act as a hired gun for those instructing you. In Muyepa v Ministry of Defence Mr Justice Cotter stated:

[284] “Experts should constantly remind themselves through the litigation process that they are not part of the claimant’s or defendant’s “team” with their role being the securing and maximising, or avoiding or minimising, a claim for damages. Although experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code, as CPR 35.3 expressly states they have, at all times, an overriding duty to help the court on matters within their expertise. That they have a particular expertise and the court and parties do not (save in some professional negligence claims) means that significant reliance may be placed on their analysis which must be objective and non-partisan if a just outcome is to be achieved in the litigation.”

3. They fail to understand and apply the relevant legal tests.

It is important to understand the relevant standards and legal tests upon which your opinion should be based.

In a professional negligence claim, for example, the standard to be applied is the Bolam/Bolitho test, that is, the defendant will not have been negligent if they have acted in accordance with a responsible body of professional opinion, providing it has a logical basis.

In ZZZ v Yeovil District Hospital NHS Foundation Trust the expert was criticised on the basis that he “did not know what the test for breach of duty is in a professional negligence case.” The same expert was criticised in Thimmaya v Lancashire NHS Foundation Trust for referring to best practice as the test for professional negligence in the joint statement, and for failing to properly articulate the correct test at trial.

There has been a surge in legal blogging and articles by lawyers in recent years commenting on interesting and unusual cases. When an expert witness receives criticism in a public judgment, it often gets mentioned in such online writings. Research shows that around 95% to 99% of individuals check reviews of products and services online before purchasing a product or hiring a professional. If you’ve faced criticism in a public judgment, a simple search of your name could direct potential clients to such blogs and articles. This could have a lasting effect on your professional practice and reputation, extending well beyond the specific case.

2. Professional negligence claim

Since the landmark case of Jones v Kaney in 2011, expert witnesses can now face legal action for providing negligent expert evidence.

In civil claims, a case often turns on expert opinion. Straying beyond your field of expertise or offering an unsustainable opinion could result in the court rejecting your evidence entirely or favouring the opposing party’s expert opinion. Consequently, this could scupper the prospects of a party successfully bringing or defending a claim that might otherwise have been won with competent expert evidence. In such circumstances, if you deprive the party instructing you of a successful claim or defence, you could find yourself facing a professional negligence claim for damages.

Such a claim may be reported, and lead to reputational damage, not just to your work as an expert witness, but also to your day-to-day role.

3. Third party wasted costs order (TPCO)

The court may make a TPCO against an expert witness as a result of any improper, unreasonable or negligent act or omission on their part.

The party applying for a TPCO has a high threshold to meet to persuade the court that such an orderagainst an expert witness is appropriate. Just because there are grounds to criticise an expert’s performance as an expert witness and to attack some of their conclusions, does not make it an exceptional case and mean there has been aflagrant or reckless disregard of an expert’s duty to the court” justifying a costs order.

In Thimmaya the court found that the expert’s inability to articulate the legal test for negligence at trial amounted to improper, unreasonable or negligent conduct, such that the jurisdiction to make a costs order against him was engaged.

Whilst the threshold for a TPCO is high, meaning such orders will be rare, the damage that resultsfrom a TPCO against an expert witness cannot be understated. Searching for individuals who have been subject to TPCOs reveals that articles discussing the TPCO are prominently displayed on the first page of search engine results. As a result, potential clients and customers are likely to encounter these articles, which can cause significant damage to reputation and result in financial loss.

4. Regulatory referral and employment issues

There are several ways in which providing unsatisfactory expert evidence at trial may lead to a referral to your regulatory body or problems with your employer.

For instance, in the case of a TPCO, the Senior Courts Act 1981 provides that the court must inform the individuals approved regulator if it considers it appropriate to do so.

Moreover, most regulatory bodies have mechanisms for self-referral, requiring you to report any concerns regarding your own conduct or competence that may affect your ability to practise.

Being criticised in a judgment is likely to necessitate self-reporting, which could lead to fitness to practise proceedings being initiated by your regulator. If the concerns are warranted, and are deemed serious enough by your regulator, they may lead to suspension, or in some cases, removal from the register.

Additionally, if you’re employed, your contract likely includes a clause mandating the reporting of any conduct issues to your employer. This could result in disciplinary actions and, in some cases, termination of employment.


Tips to avoid problems and mitigate risk

1. Obtain suitable insurance cover. Expert witness work is unlikely to be covered under any professional indemnity policy unless cover has been specifically requested from the outset. To avoid being personally liable for any costs or damages arising from expert witness work, it is advisable to obtain adequate cover. If you already have insurance cover, check the wording carefully to ensure the work falls within the scope of your cover.
2. Check the experience and expertise of those who seek to instruct you.  Before agreeing to act as an expert witness, ensure that the firm intending to instruct you possesses the necessary expertise in the relevant practice area. Problems can arise when legal representatives lack relevant experience. For instance, in cases involving clinical negligence, it’s crucial for experts to possess a solid grasp of the applicable legal standards. Firms and individuals lacking experience in this specialised area of law may struggle to provide adequate guidance, leading to complications.

Furthermore, issues have arisen in the past when inexperienced legal representatives failed to fully comprehend disclosure requirements. This led to situations where expert witnesses were not provided with all relevant documentation, resulting in criticism from the court.

3. Obtain and keep a list of all relevant documents. You should request an index and paginated bundle of all relevant documents from the outset and ask that the list and bundle be updated as further documents are disclosed. It ensures you do not miss an important document that might have a significant bearing on the case. Being able to refer to the full list of the documents you have been provided should protect your position if any issues arise regarding documents.
4. Ensure the issues fall within your area of expertise. This may seem obvious, but as manyreported decisions illustrate, not always so. With many areas of professional practicebecoming ever more subspecialist, it is important to ensure that the specific issues under consideration fall within your competence, experience, and skillset. If not, it is advisable to decline instructions.
5. What to do it there is a factual dispute. Often an expert’s opinion depends on the factual circumstances of the case and ultimately which factual evidence the court prefers. Don’t prove an opinion solely based on the witness evidence from the party from whom you have received instructions. Provide your opinion on all the relevant factual scenarios. The court will therefore have your opinion to hand once the factual evidence has been analysed and the judge’s determination made. You will look fairer and impartial, rather than an advocate for the side instructing you.
6. If matters go wrong, seek legal advice urgently. If something goes wrong, it is advisable to seek legal advice urgently, which should reduce the risk and protect your position.

Joseph McCaughley
Partner - Dispute Resolution, Healthcare, Professional Practices