The tricky issue of challenge to an expert’s independence
As litigators specialising in property disputes, we regularly instruct property professionals, usually surveyors from a variety of disciplines, to act as expert witnesses. In this note, we try to assess some relevant considerations to be taken into account when considering whether a property professional would have a conflict of interest in acting for a particular client.
Before looking at property professionals in particular, a reminder of some more general principles and relevant case law might be useful.
Part 35 (and the associated Practice Direction) to the Civil Procedure Rules makes clear, amongst other things, that an expert’s duty is to help the court on matters within their expertise and “… such a duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”
Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation and should assist the court by providing objective, unbiased opinions on matters within their expertise.
Helpful as a starting point, but how do these rules apply in practice?
In Proton Energy Group SA v Orlen Lieteva , the potential problem was that the expert witness’s independence was questioned due to his relationship with the defendant’s solicitor, as a result of the defendant’s solicitor being paid to speak at seminars run by the expert’s company. The relationship emerged under cross-examination.
The court’s view? This was “… not the worst of failures to disclose an interest.”
That said, the court went on to recognise that solicitors firms “… repeatedly choose the same firms of forensic accountants and, in another area of litigation, doctors, to act as experts and from time to time work with one another on the lecture and conference circuit and no doubt entertain each other. But this connection, which included money, was a closer one than usual and should have led [the solicitors] to choose another expert or at least make full disclosure of the link.”
Nonetheless, despite this connection, this expert was considered to be straightforward and honest and his evidence was not considered to be compromised.
In the Court of Appeal decision of Toth v Jarman , a medical negligence case, a medical expert’s independence was challenged based on a conflict of interest in the form of his membership of the Cases Committee of the Medical Defence Union, being the body defending the claim on behalf of the defendant doctor.
Here, the court stated that if there was a conflict of interest which “ … was not obviously immaterial ..”, it should have been disclosed by the expert to the defendant’s solicitors and by them to the appellant’s solicitors. However, the practice of the Committee to exclude any member of the Committee acting as an expert in a particular case from the Committee’s deliberations in relation to that case, meant that membership of that Committee would not automatically disqualify a person from acting as an expert witness.
In a more recent case, EXP v Barker , again involving medical negligence, the connection between the defendant doctor and his expert witness had been “lengthy and extensive”. The expert had helped train the doctor over many years and they had worked together closely over a substantial period. They had written a medical paper together and the expert had helped the defendant doctor to obtain foreign placements and to become a consultant in Southampton. The defendant doctor had suggested that this particular expert should be his defence expert. All of this information came out under cross-examination, to the surprise of the judge, who, took the view that the failure to disclose this close connection was “a very substantial failure indeed”, the more so because there had been a specific direction in the case that: “Experts will, at the time of producing their reports, incorporate details of any employment or activity which raises a possible conflict of interest.”
So, how should clients who are looking to instruct a property professional as an expert, and how should those experts themselves, approach the question of conflict?
In our experience, clients commonly retain property professionals to assist in an advisory role with their property interests, well before any dispute raises its head. Commonly, a surveyor may be retained to oversee a client’s portfolio of properties. It is then an understandable reaction for a client to suggest instructing that surveyor to take on the expert witness role. Our view is that such an approach may backfire. If the reason for instructing that expert is that a particular individual surveyor always does a “good job” for the client, that very reason has potential to be held against the professional, who might be perceived (however incorrectly) to be too close to the client to have the requisite independence.
We stress, this is not to criticise the professionals themselves: it is just that unnecessary ammunition may immediately be given to the other side, when a client’s retained property advisor takes on the role of expert.
The issue is perhaps less acute where a client retains, say, a large surveying practice and the individual expert does not have any pre-existing special relationship with the client in question. But this does not mean that the expert will necessarily avoid serious and detailed cross-examination as to the depth of the relationship between their practice and the client, with conflict at least being intimated.
Sometimes, of course, there may be a very limited choice of experts in a specialist field. Perhaps only a very small number of experts have an intimate knowledge of property transactions in a certain locality or even a certain street, where high end transactions take place. Then, the client may have little choice but to use a particular expert, notwithstanding a prior relationship.
Taking account of the rules above and the cases where experts in other disciplines have become unstuck will stand the property professional acting as an expert in good stead. But save in the most clear cut of cases, it will never be easy to perceive in advance how a judge will react to a conflict allegation.
Plainly though, where a prior relationship with the client exists, even if tenuous, it should be highlighted from the outset and not dragged out under cross-examination.
In our experience, the likelihood is that, so long as an expert comes across in oral evidence as being honest and trustworthy, a judge will put to one side an allegation of conflict, unless particularly clear cut. But is it a risk worth taking?