Previously, retired barrister and Associate Member of Chambers, Giles Eyre, reflected on potential conflicts of interest arising for experts producing court reports. In light of Bux v GMC, Giles consider the subject further.
Background
The recent decision of Bux v GMC saw a clinician struck off for a failure to disclose a potential conflict of interest.
Dr Bux wrote expert medical reports for the benefit of claimants who had made holiday sickness claims alleging food poisoning in the County Court. He was initially instructed through a medical reporting agency by a variety of solicitors, but subsequently solely by one firm of solicitors, AMS. Bux produced 684 reports in 2016 and 2017 alone, generating an income of more than £120,000. The solicitors in the cases he worked on acted on a conditional fee basis, but Bux was guaranteed payment. The letter of claim sent out by ABS would identify Bux within the list of nominated medical experts.
The reports written by Bux were described as superficial, unanalytical, devoid of any differential diagnoses, and invariably supportive of the claim. They all ended with a similar conclusion. Nonetheless, the insurers for the holiday company would accept the claim and pay up the relatively small amount of damages sought.
The reports did not disclose that Bux was married to a salaried partner in the firm of solicitors which instructed him, ABS. Had they done so, it can be assumed that the insurers would probably not have accepted the report. There was therefore likely a strong financial motive to keep quiet about that connection in order to keep up the lucrative throughput of uncontested claims.
Medical Practitioners Tribunal decision
The Medical Practitioners Tribunal struck Bux off the register. Despite appealing this decision, Mostyn J dismissed the appeal in the Administrative Court. For present purposes¹, the judge found that:
i) Bux acted in a state of conflict of interest by accepting instructions to prepare medico-legal reports in respect of holiday sickness claims from a firm of solicitors in which his wife was a salaried partner;
ii) he made diagnoses without proper evidence, without identifying the existence of a range of opinions, and had in his reports failed to follow the requirements of CPR Part 35.
This raised serious doubts as to the independence of the expert’s reports.
The law, rules, practice direction and guidance
The evidence of an expert should be independent, unbiased and objective. The Practice Direction to Part 35 states:
2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
Somewhat surprisingly, there is no explicit reference in the Civil Procedure Rules or the Practice Directions to Part 35 to a requirement to disclose an actual or potential conflict of interest. But clearly the requirement to give an unbiased opinion imposes the obligation to disclose any actual or potential conflicts of interest.
The Guidance for the Instruction of Experts in Civil Claims (‘the Guidance’) does provide at para 16 that:
Before experts are instructed or the court’s permission to appoint named experts is sought, it should be established whether the experts…(e) have no potential conflict of interest.
The declaration required of an expert at CPR PD 35 para 3.2(9) states that the expert is aware of the requirements of the rules, Practice Direction and the Guidance. Therefore, an expert report properly completed, while not stating that the expert has no potential conflict of interest, will include a statement by the expert that they are aware that it should be established whether they have any potential conflict of interest.
What is a conflict of interest?
In his explanation, Mostyn J stated:
A conflict of interest (or, perhaps more accurately, a conflict of interests) will arise when an expert witness’s opinions are either (1) actually influenced, or (2) capable of being influenced, by his personal interests. The former state is obviously rare and where done consciously involves considerable moral turpitude. The latter state is more common and involves no wrongdoing.
If an expert witness accepts instructions to give evidence in favour of a litigant with whom they are having a relationship, then they are actually conflicted before a word of the expert report has been written, because the existence of the relationship is capable of influencing their opinion. If the relationship ended years earlier, then the expert is potentially conflicted, and further investigation would be required to establish whether they were actually conflicted.
If a solicitor wished to instruct in litigation an expert the solicitor had taken to Wimbledon for the day with full hospitality, that generosity would create a potential conflict of interest, which would need to be disclosed.
The conflict may arise because of a financial interest in the outcome of the litigation, or because the expert has a conflicting duty, or because of a personal or other connection with a party which might consciously or subconsciously influence the expert’s evidence.
The GMC Guidance on Acting As a Witness in Legal Proceedings states (at para 23):
If there is a possible conflict of interest – for example, you have been professionally or personally involved with one of the people involved in the case in the past, or you have a personal interest in the case – you must follow our guidance on conflicts of interest. You must also make sure the people instructing you, the other party and the judge are made aware of this without delay. You may continue to act as an expert witness only if the court decides the conflict of interest will not affect the case.
The existence of a conflict of interest by an expert does not necessarily disqualify them, or render their evidence inadmissible, or of no weight.² It is of course desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which they give evidence, but such disinterest is not automatically a pre-condition to the admissibility of their evidence.³ However, what is important is that a party who 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. Although there is no express rule to that effect, because of the overriding duty of an expert in CPR 35.3 (see above) there is an obligation on the expert to disclose the existence of a conflict of interest.
Learning points
While the case of Bux might appear a clear and obvious case of a conflict of interest, the principle is of much wider application. It should also be noted that this was not a case of actual conflict of interest. Bux was paid for the reports regardless of the outcome of the case and therefore had no financial interest in the litigation process, beyond a reasonable expectation that he be paid for any professionally prepared Part 35 compliant reports provided. His wife was a salaried partner who received no bonus dependant on the outcome of her cases.
However, the failure to disclose their relationship ‘was sufficient to entitle any defendant, or its insurer, to query the transparency and objectivity of the process whereby the reports are produced. It raises, at the very least, a legitimate concern that the production of the reports may be driven by a less than objective and properly considered process. Any such suspicion is likely to be fortified by the formulaic nature of the reports themselves, the virtual absence of any expert analysis, and the wholesale failure to comply with Part 35 and the relevant Practice Direction.’
There was a real risk of a conflict of interest and it had to be disclosed.
1) An expert witness has a duty to disclose to those instructing them, and to the court, a potential conflict of interest, that is, all facts and matters which might reasonably suggest a conflict of interest.
2) There is a legal duty of disclosure of any such potential conflict of interest. An expert must not leave undisclosed any conflict of interest which might bring into question the suitability of their evidence as the basis for the court’s decision.
3) Failure to comply with the duty of disclosure is likely to have very serious consequences, both within the litigation and professionally.
An additional point
The quality of the reports were criticised as showing a ‘formulaic nature of the reports themselves, the virtual absence of any expert analysis, and the wholesale failure to comply with Part 35 and the relevant Practice Direction’. It is interesting (and surprising) to note that the rules, Practice Direction and Guidance do not require the expert to provide reasons for an opinion – see the author’s recent blog ‘Do experts have to disclose the reasons for their opinions?’
Notes
1) The two other grounds are set out in the judgment of Mostyn J
2) See for example EXP v Barker [2015] EWHC 38
3) Factortame (No 8)[2002] 3 WLR 1104
About the author
Giles Eyre is a retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk) and through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .
Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p. and ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’ (normal price £69.95) is available at £54.95 plus £5 p&p only direct from the author by email to geyre@9goughchambers.co.uk for a limited time. More information about the books and reviews are available at www.prosols.co.uk