Reckless Expert Witness Should Have Been Jailed – Court of Appeal Ruling

Expert witnesses play a crucial role in litigation and, although they owe obligations to the clients who pay them, their ultimate duty is to the court. The Court of Appeal powerfully made that point in the guideline case of a doctor who did not care whether a report he recklessly prepared in a road accident case was true or false.

The doctor ran what the Court described as a factory, preparing medico-legal reports in low-value personal injury claims. Using specialist software, he reckoned that he could both examine a patient and prepare a report within about 15 minutes. Working to a tight schedule, he managed to produce about 5,000 such reports annually, generating a gross income of around £350,000.

Following an examination of a man who suffered whiplash injuries in a road collision, the doctor initially reported that his symptoms of pain and stiffness had resolved within a week of the accident and that he had made a full recovery. After that view was queried, however, he produced an amended report which stated that the man’s symptoms were continuing and were likely to last for six to eight months. He did not re-examine the man before preparing the second report.

After the man launched a damages claim in respect of his injuries, the existence of the first report was revealed when it was mistakenly included amongst documents sent to lawyers representing a driver involved in the collision. The latter’s motor insurer subsequently launched proceedings against the doctor.

In finding the doctor in contempt of court, a judge rejected various explanations in respect of the conflicting reports he had given in sworn statements. His conduct went beyond negligence and he had cared neither whether the second report was true or false, nor whether the judge who considered the case would be misled as a result. The doctor received a six-month suspended prison term.

In ruling on the insurer’s challenge to that sentence, the Court noted that misconduct by expert witnesses strikes at the heart of the administration of justice. A witness who prepares a report in reckless disregard of its truth or falsity is almost as culpable as one who is deliberately dishonest. In seeking to cover up his wrongdoing, the doctor had told a direct lie under oath in an attempt to cast the blame onto someone else.

In those circumstances, the Court declared that the suspended sentence was unduly lenient. Given the gravity of the doctor’s misconduct, an immediate prison term was inevitable and he should have been locked up for at least nine months. The Court noted, however, that its primary objective was to give guidance on appropriate punishments in such cases. In the circumstances, the Court declined to increase the doctor’s sentence.