Expert witnesses: Take care when providing a report to the court or you could end up in prison

26th April 2019

The Court of Appeal has recently considered the question of the appropriate sanction for an expert witness who signs a statement of truth for a Court report which was false.

In England and Wales, expert evidence is frequently provided in civil litigation and forms an important part of many cases. 

In certain types of cases, such evidence is essential.  For example, in cases of professional negligence, expert opinion is usually required to assist the Court on determining whether or not the Defendant’s actions fell below the standard to be expected of a reasonably competent member of his or her profession. 

Commonly, each party instructs an expert and pays his or her fees but that expert owes an overriding duty to the Court.  This is set out clearly in the Civil Procedure Rules.  The whole basis of the expert providing an opinion is to assist the Court in reaching its determination. 

Of course there is a temptation for an expert to want to assist the party paying however the Courts have made it clear that experts must not act as “hired guns” and give their evidence fairly and impartially. 

In Liverpool Victoria Insurance Company Limited  -v- Zafar [2019] EDWCA Civ 392 the Court of Appeal was faced with a case where the Court below had determined that the expert, Dr Asef Zafar, had failed in his duties to the Court.  He had allowed a medical report, signed by him, to be put forward to the Court which included a prognosis and assertions which he had no basis for making and which the Court found he did not care whether the contents were true or false. 

The Judge decided that Dr Zafar’s conduct was so serious that it justified a prison sentence of 6 months but, in view of Dr Zafar’s previous good character and some other factors which the Judge took into account, he decided to suspend the sentence so that Dr Zafar did not go to prison. 

Liverpool Victoria appealed on the basis that this was too lenient and the Court of Appeal took the opportunity to give guidance as to how this sort of issue should be dealt with in future cases should it arise. 

The Court has stated that where an expert gives false evidence recklessly this is such a serious abuse of trust that an immediate prison sentence will almost inevitably be required.  It further indicated that, in a case like Dr Zafar’s it should have been significantly longer than 6 months and should certainly not have been less than 9 months and it would have had no problem with a sentence of 12 months.

The Court of Appeal also said that such a sentence should not, ordinarily, be suspended so that an expert in this position can expect to be sent immediately to prison.

The Court decided to be lenient to Dr Zafar as the guidance which it was now giving had not been previously available and so did not alter his sentence but, any expert in future, is unlikely to be as lucky. 

Experts have now been warned.  No matter how great the desire to help the instructing party, expert evidence is important to the Court and if the Court cannot rely upon an expert’s honesty and integrity it causes a serious issue for the litigation process. 

Experts who fail recklessly or deliberately in future should now be aware of the inevitable consequences. 

Howard Colman