This article, authored by Ann-Marie Christie, MAPS’ in-house solicitor, examines what happens when an expert signs a statement of truth but knowingly provides a dishonest report. Drawing on key principles from the Civil Procedure Rules and case law, it explores the duties of experts, the importance of factual accuracy, and the potential consequences of failing to comply with Part 35 obligations.
- The requirement of Practice Direction 35 of the Civil Procedure Rules requires an expert to provide a declaration and Statement of Truth within their report. See – EUI Limited (t/a Admiral) v. Smith – here.
- Practice Direction 3.2(9) states that the expert report must include a statement confirming that the expert:
- (a) Understands their duty to the court, and has complied with that duty; and
- (b) Is aware of the requirements of Part 35, the Practice Directions and the Guidance for the Instruction of Experts in Civil Claims 2014.
Prior to the introduction of the Civil Procedure Rules, many experts acted as if their primary duty was to the party that instructed them.
The wording of the Statement of Truth is mandatory – CPR 35 3.3 prescribes the wording as follows:
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Case
The original claim was brought by a motorcyclist against the driver of a car who had struck his motorcycle. In the case of EUI Limited (t/a Admiral) v. Smith, Mr Smith, the appellant, was an expert instructed to report on the damage to the motorcycle. In his report, Mr Smith stated that the motorcycle was “beyond economical repair.” The car’s insurers were also named in the claim as second and third Defendants.
The Third Defendants (EUI) issued what is known as a Part 20 claim against the expert, Mr Smith. The Part 20 claim form stated that the report he prepared was “dishonest” and alleged that the motorcycle had suffered no significant damage, remained drivable, and that the report was created dishonestly to declare the motorcycle undrivable.
The expert was unsuccessful in his application to strike out the claim against him. During the proceedings, the insurers obtained their own expert report, which revealed an interesting detail about the history of the same motorcycle. Mr Murdoch, who was the insurers’ expert, noted in his second report that Mr Smith had previously written a report about the same motorcycle after an accident in 2017, raising very similar issues.
The 2017 accident involved the same motorcycle, but it was then owned by a different driver and registered to a different keeper. Mr Murdoch had obtained access to that earlier report and photographs that had been taken by Mr Smith at the time of the accident.
This case is a useful reminder for medical experts about the consequences of preparing reports that are economical with the truth. Examine the facts before writing your report and certainly do not write anyone else’s opinion other than your own. Often when medical experts are instructed, they will be asked to look at other experts’ reports and sometimes voluminous amounts of medical records. They will also gather facts directly from a patient about their medical history, the circumstances of any injuries sustained, and how those injuries have impacted their daily life.
An expert should be forensic about the documentation they are being asked to review and consider any discrepancies or entries that support the claim, particularly when it comes to causation, which is central to any legal claim.
In his Defence, Mr Smith said that he never stated or had been instructed to state what damage was or was not caused to the motorcycle in the alleged accident, or that the accident caused the motorcycle to be undrivable. Similarly, he said that he had not stated that the motorcycle was undrivable because of the accident, only that it was undrivable when he inspected it. On that basis, causation would not be established, which would clearly be a key part to any expert’s report and opinion. It is essential for a medical expert to determine whether the accident or event caused the injuries sustained and this ought to be cross-referenced to the medical records and any other contemporaneous documents.
In the case of Hamed v. Ministry of Justice – here – in her judgment, HHJ Karen Walden-Smith stated at paragraph 37, that when subjected to cross examination, [the medical expert] accepted that the only evidence of what had happened on 26 March 2018 came from Mr Hamed himself – either directly or from the information he had provided to the medics he saw at the time – together with the later radiology. There is no evidence of any injury to Mr Hamed’s shoulder or lower back, other than the self-reporting of Mr Hamed, and no contemporaneous complaint. [The expert] failed to make any mention in his report that there had not been any immediate complaint about pain to the shoulder or lower back and he did not give any explanation in his report as to why there was a delay in any reporting.
She goes on further to say at paragraph 39, [The expert] had failed to comply with the requirements of Part 35 of the CPR and the accompanying practice direction, in that he had failed to provide a copy of his instructions (CPR 10(3)), had failed to provide details of the range of opinion (35PD.3.2(6)), and had failed to provide details of any literature relied upon (35PD.3.2(2)). These are serious failings and it was clear from [the expert’s] evidence that he did not have an understanding of the requirements of part 35, despite signing a declaration on 7 May 2021 that he was aware of the requirements of part 35 and practice direction 35.
Had the expert complied with his Part 35 obligations and the practice directions, there may have been some justification for the statements he made. The Judge stated It is not sufficient for an expert giving an opinion upon which a court may rely, to simply state what his/her opinion is without justification for that opinion beyond that it is the expert’s opinion that ” … ” on the balance of probabilities. The robust questioning by the Defendants exposed significant weaknesses in this expert’s evidence. It was put to [the expert] that he had bent his report to fit with his instructions. I cannot make that finding as I have not seen the instructions but it is a clear that this was a very weak report which failed to comply with the requirements of an expert report. I would urge [the expert] to undertake some further training in expert medico-legal report writing to ensure that he fully understands the obligations of part 35 and his duties to the court.”
See Civil Litigation Brief – here.
In Hamed, the Judge did not accept that the medical expert had provided a dishonest report or “bent his report to fit with his instructions,” but she was heavily critical of him nevertheless, as he had clearly not examined the contemporaneous records and questioned these when dealing with the issue of causation.
One thing many medical experts may not appreciate is that often insurers/defendants will be monitoring what medical experts say in their reports and keeping records. In the case of EUI v. Smith, the insurers were able to track down an earlier report prepared by Mr Smith on the same motorcycle and cross-refer to both reports, with the sole purpose of looking to discredit Mr Smith, which they successfully did. Experts should be wary about making statements in their reports which are not verifiably true or correct, and the consequences that follow if they do so.