Experts and conflicts of
interest – new guidance on best practice from the Court of Appeal
Toth v Jarman [2006] EWCA Civ 1028
This is a lengthy judgment in an
appeal by an unsuccessful claimant in a clinical negligence claim. The
defendant was a GP who treated the claimant’s son. Despite the treatment, the
son died and the claimant sought damages for psychiatric injury consequent on
the defendant’s alleged negligence. The facts of the case do not matter for
the purpose of this note, which looks solely at an issue of an expert’s
conflict of interest.
The “conflict of interest”
D belonged to the Medical Defence
Union (MDU), a mutual insurance company for medical practitioners. The MDU instructed
an expert in the field, Professor H, to report on D’s behalf. H’s evidence was
favourable to D, and at trial it was preferred by the judge to C’s expert’s
evidence. However, on appeal, C said that there had been material
non-disclosure by H of a conflict of interest and as a result the judge’s
decision should be set aside. The conflict of interest to which C pointed was
that H was a member of the Cases Committee of the MDU at the time that he wrote
his report. The Cases Committee was the organ of the MDU that took the
decisions in relation to the defence of D’s claim; consequently, said C, H’s
interest and obligations as a matter of the Committee might have had a
subconscious effect on his evidence.
The applicable principles and the
result
The Court of Appeal stated the
applicable principles as follows. A conflict of interest does not
automatically disqualify an expert from giving evidence – the key question is
whether the expert’s opinion is independent of the parties and the pressures of
the litigation. However, where an expert has a material or significant
conflict of interest, the court is likely to refuse permission for his evidence
to be adduced or to decline to act on his evidence (depending on the stage
reached), and so 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. The other party and the court can then properly
assess the conflict of interest.
Whilst C had not requested
information about H’s relationship with the MDU, that was not a sufficient
answer: if there was a conflict of interest “which was not obviously
immaterial”, it should be have been disclosed by H to D’s solicitors and thence
to C’s solicitors, without C having to ask. It was not an answer to say that H
did not have a personal financial interest in the case. So long as he was a
member of the Committee and the Committee had any responsibility for the case,
H was in principle subject to a conflicting duty as a member of that committee.
This would be so even though in practice he would not have been able to (or
asked to) sit on any item of business about D’s case and that the Committee’s
role was advisory only.
However, in rejecting C’s appeal on
this ground, the Court of Appeal said the practice of the Committee 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, H had ceased to be a member
of the Cases Committee six months before the trial. In the circumstances, even
if H’s conflict of interest had earlier been a disqualifying interest, it then
became “immaterial”, and so there was no basis for interfering with the judge’s
decision on this basis.
Recommendations
The Court of Appeal then went on to
consider what should happen in any similar future situation.
- Whilst it might have been
understandable in the past that H’s membership of the Cases Committee was
an immaterial conflict of interest which did not need to be disclosed,
from now on, a party should not take the course of non-disclosure.
- Unless the actual or potential
conflict of interest is obviously immaterial, the party should draw the
court’s attention to it at the earliest possible opportunity. The time
for disclosing a possible conflict of interest is when first serving the
report of the expert on other parties – or when seeking permission for
that named expert, if earlier.
- If the other party objects,
this should be notified as soon as possible.
- It is for the court and not the
parties to decide whether a conflict of interest is material or not. The
matter should be raised with the court even if the parties agree that
there is no problem, since the court may take a different view.
- All experts should produce a CV
when providing a report and give details of any employment or activity
which raises a possible conflict of interest.
- The Civil Procedure Rules
Committee should consider requiring an expert to make a statement at the
end of his report along the following lines:
(i) that
he has no conflict of interest of any kind, other than any which he has
disclosed in his report;
(ii) 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;
(iii) 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 the previous two questions.
Comment
The Court of Appeal is getting more
concerned these days about conflicts of interest in litigation (see the
decision in Smith v Kvaerner Construction on Recorders and conflicts on
interest). There is some sense in these proposals but a danger of over-reaction
perhaps to a low risk. Three further comments:
- There does seem to be an
inconsistency between the Court of Appeal saying that a party need not
notify the court or the opposition of an “obviously immaterial” conflict
of interest, when the proposed expert’s declaration contains no such
exception clause. The wording of the declaration needs refining.
- In Field v Leeds CC, upon
which the Court of Appeal rely in this case, a previous constitution of
the Court of Appeal said that, in principle, a defendant’s in-house
surveyor could give expert evidence at trial, but the trial judge would
have to see and decide for himself whether the expert understood the need
for objectivity. The Court of Appeal in Toth v Jarman, in
contrast, seem to want the conflict point resolved as early in the
proceedings as possible, potentially even before the expert has written a
report if a known potential conflict exists. So are procedural judges
going to be expected to rule on the admissibility of expert evidence from
allegedly conflicted experts without hearing the expert give evidence and
be cross-examined? The result in Field would seem to suggest that
it is a matter for the trial judge, which would mean that the party with
the conflicted expert has the unenviable choice of either abandoning its
first choice expert or going to trial with the risk that the expert’s
evidence will be excluded.
- The Court of Appeal fails to explain
how it reconciles either this decision or Field with its
endorsement of that part of the principles set out in the Ikarian
Reefer that expert evidence should be and should be seen to be the independent product of the expert uninfluenced as to form or content
by the exigencies of litigation. (Could an in-house surveyor ever be seen to be as independent as this, one wonders?) It seems odd that the Court
of Appeal thought it was “immaterial” that H wrote his reports whilst
subject to an undeclared conflict of interest, on the ground that he
defended them at trial when six months had elapsed since he was subject to
that conflict. Well, the cynic might say, the damage is done when the
report is written, not when the expert goes into the witness box, since
the expert is bound to stick to the same line at trial. The author’s
suspicion is that the weakness of the merits of the underlying claim,
coupled with the low risk of the expert’s evidence having been tailored to
suit the defence (it had, after all, withstood both cross-examination by
leading counsel at trial and two days of oral argument and analysis on
appeal), led their Lordships to be more forgiving of a past approach than
will be permitted in future.
Tim Petts
12 King’s Bench Walk
September 2006
