The Expert Witness in the United Kingdom

UK Courts place high expectations on expert witnesses in all disciplines: the privilege of giving opinions carries with it a weighty responsibility. Over the last twenty or more years the judiciary voiced, ever more pointedly, the heavy duties that come with the potentially persuasive powers of expert witnesses.

The expert witness who falls a long way short of the standards expected can expect direct, bone-crunching, career-disrupting criticism. The Courts will make generous allowance for the intimidating majesty of the court room and the other pressures of the legal process, especially those of cross examination. However, if the expert still falls short, despite these allowances, excoriating comments from the Bench can be the result.

In the 2019 written decision of Arksey and Cambridge University Hospitals Trust (EWHC 1276), the Judge was profoundly troubled by the quality of the work of one medical expert which was described as falling far below the standard to be expected of a reasonable, competent expert witness, both in the preparations of reports and in preparing to give evidence.

Sometimes the Court will decide that direct, pungent criticism is not enough. The depths of being an expert witness are most certainly plumbed if an expert is accused of contempt of court.

Liverpool Victoria presumably has a sizeable motor insurance portfolio. It had clearly become troubled by a number of personal injury claims, suspected to be spurious, being brought in respect of minor road traffic accidents.

Dr Zahar carried out medico-legal work in low value personal injury claims. His evidence was that he was able both to examine his patient and to produce a report within 15 minutes. He charged a fixed fee for such work. He generated revenues of £350,000 a year from 5,000 reports. Simple arithmetic demonstrates that the average fee was staggeringly low at £70 per report.

He examined one claimant some 11 weeks after a road traffic accident; he concluded that the patient had experienced whiplash symptoms of stiffness and pain but they had resolved one week from the date of the accident. His report contained the various expert’s declarations.

After the input of the solicitors acting in this case, Dr Zahar issued a replacement report with the same date as the original. The replacement report made no reference to an original report. The replacement report reached very different conclusions: the pain and stiffness in the claimant’s neck continued; these symptoms would fully resolve between 6 and 8 months from the date of the accident.

This sequence of events would not have come to light apart from a fundamental error by the lawyers working on the case: they sent the original report of Dr Zahar to the Court in error as part of the bundle of documents relating to the case; they then resubmitted the bundle at a later date, including only the replacement report. The change was noticed by lawyers acting for Liverpool Victoria.

Dr Zahar compounded his problems when he signed a witness statement to the effect that the replacement report had been altered without his knowledge. He later withdrew this witness statement and changed his story; he stated that his original report was only intended to deal with the claimant’s immediate acute symptoms; the replacement report was the correct report for the Court to consider.

The Judge’s comments on his initial claim that the report had been changed without his knowledge were searing: this was an attempt at a deliberate cover up and a deliberate lie; this was particularly despicable because it sought to cast the blame on an innocent third party.

The Judge in the lower Court found that Dr Zahar was motivated initially by a desire to keep his report-writing factory running at full capacity. He stated: “Your conduct in this case amounts to a fundamental betrayal of the trust placed in you by the court."

The Appeal Court found that Dr Zahar had put forward false statements on three different occasions.

The Lower Court found that ten grounds of contempt of court had been proved against Dr Zahar. It had imposed a prison sentence of 6 months on Dr Zahar, but with this being suspended for two years.

The insurance company, troubled by the leniency of the sentence, took the matter to appeal. For Liverpool Victoria, Counsel summarised the privileged position of an expert witness:

“…that privileged position rested upon the duty which an expert witness owes to the court, and an expert witness who abuses that privileged position by lying should expect to be treated more severely than a member of the public who tells lies to a court.”

The Appeal Court found that the sentence was too lenient and also that it should have been served immediately. A period in prison of 12 months could not be challenged. There were no powerful grounds for suspending the sentence.

The Court of Appeal was more concerned to give guidance to those sentencing for contempt of court in the future, as such guidance was not previously available. They decided not to interfere in the decision regarding Dr Zahar.

In a further court action, again an appeal, it was decided that the name of Dr Zahar should be removed from the Medical Register.

As a result of this case, experts of all types and persuasions must now add a further sentence to their declarations in their reports:

“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 views expressed are the author's and not ICAEW's.}