Admissibility of expert evidence: Hayden v Maidstone & Tunbridge Wells NHS Trust

The recent judgment in Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB) discusses the extent to which expert evidence is necessary and provides guidance on the practical implications of instructing expert witnesses.

What is the background to this case?

The claimant was employed as a cardiac physiologist by the defendant and suffered a back injury when attempting to transfer a patient from a trolley to an investigation table in March 2007. Liability was admitted in April 2009. Judgment in default was entered on 15 July 2010. The case was fixed for trial in April 2016 but was subsequently vacated by Foskett J in a hotly disputed application as he granted the defendant permission to rely on covertly recorded video surveillance. In the present case, the defendant applied for permission to serve a defence which pleaded that the claimant had consciously exaggerated the consequences of her accident and included causation issues not previously seen in the pleadings. The defendant’s application was granted.

The claimant applied for permission to rely on the evidence of a Mr Jeffrey Simm, video evidence analysis consultant, in the form of a witness statement or, in the alternative, permission to rely on his evidence in an expert capacity in the form of a report. In his opinion, the DVD evidence could not be taken at face value and there had been selective filming.

To what extent is the judgment helpful in clarifying the admissibility of expert evidence in civil proceedings generally, and in injury claims specifically?

This judgment is helpful in clarifying the position on the admissibility of expert evidence in civil proceedings as it clearly states several considerations that must be addressed in order for expert evidence to be admissible. The starting point for the admissibility of expert evidence is reflected in CPR Part 35:

“Expert evidence shall be restricted to that which is reasonably required to that which is reasonably required to resolve the proceedings.”

The court went on to consider the appropriate statutory test which needs to be satisfied in order for expert evidence to be admissible found in section 3 of the Civil Evidence Act 1972 which states:

“3. – Admissibility of expert opinion and certain expressions of non-expert opinion.

1. Subject to any rules of court made in pursuance of this Act, where a person is called a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
2. It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
3. In this section ‘relevant matter’ includes an issue in the proceedings in question.”

In addressing specifically, the admissibility of expert evidence in injury claims, the court considered the decision of Stadlen J in Samson v Ali [2012] EWHC 4146(QB), which was a similar application to that of the claimant and involved the same witness, Mr Simm. In that case, Mr Simm had offered one area of technical evidence, although the permission to allow his evidence had not been made purely on the issue of admissibility.

The judgment followed the case of Kennedy v Cordia (Services) LLP [2016] UKSC 6; 1 WLR which had identified the meaning attributed to the term “assisting the court”. By comparing Mr Simm to an accountant or pathologist, the court illustrated the difference between him and the latter two in that they used internationally recognised skills in carrying out their work, which can be peer reviewed and assessed for quality.

In the case of Kennedy v Cordia, a Scottish case, the law around the admissibility of expert evidence was revisited. Paragraph 40 from this decision was cited:

“Experts can and often do give evidence of fact as well as opinion evidence. A skilled witness, like any non- expert witness, can give evidence of what he or she has observed if it is relevant to a fact in issue”

The judgment also refers to the test in R v Bonython (1984) 38 SASR 45, which involves two questions: (a) necessity and the existence of a reliable body of opinion; and (b) whether the witness is a member of that reliable body of opinion.

Mr Simm principally sought to give evidence of what he had seen when viewing the video footage and reading the surveillance logs. All he really said in addition to his factual analysis is that the operatives chose what to film. This work could have been done by anybody. The judgment made it clear that the judge did not believe that any knowledge or skill was involved in this exercise such as to subject its admissibility to the expert evidence threshold. The claimant already had permission to adduce factual evidence and on this basis, the application was rejected.

In summary, the judgment clarified that expert evidence is only necessary to the extent to which it assists the court.

To what extent is the judgment helpful in clarifying the importance of complying with the Guidance for the instruction of experts in civil claims?

This judgment reiterates that by complying with the Guidance for the instruction of experts, which is best practice, there are less likely to be any detrimental consequences for the expert witness or in the claim generally.

It is important for parties to comply with the Guidance in instructing experts to avoid any challenges of foul play from the opposing party in the litigation process.

By complying with the Guidance, a party can avoid potentially undermining the evidence that they are seeking to obtain from their own expert. If the expert has not being instructed correctly or has not been provided with all the relevant materials, the opposing party and the court are likely to draw adverse inferences on the evidence and the evidence will no longer hold the requisite weight and regard that it may have held, had all the relevant documents been made available.

This will lead to experts subsequently having to reconsider their opinions in the light of the new materials that they had not previously seen, which may cause a delay in the claim.

Furthermore, if the Guidance is not followed, experts run the risk of being open to criticism for forming an opinion without the complete materials, which may result in damage to their credibility or reputation.

What are the practical implications of this case in the context of the expert witnesses, and what should lawyers advising in this area take from the case?

This is an interesting judgment providing guidance on the practical implications of instructing expert witnesses, which lawyers advising in this area would be prudent to note.

• Parties should exercise careful consideration when choosing the right expert witness, who should be properly qualified.
• Consideration should be given to the necessity and existence of a reliable body of opinion and whether the witness is a member of that reliable body of opinion.
• On instructing the expert, consideration should be given to the Guidance on the instruction of expert witnesses to ensure it has been complied with fully.
• Before disclosure of the expert report, parties should ensure that the report contains information of a technical nature leading to conclusions that a judge alone would not have been able to formulate without such assistance.
• The expert should identify what has occurred and what it might mean to warrant the evidence as being admissible.
• In cases where parties have obtained useful factual analysis which does not warrant the instruction of an expert witness, the parties would do well to agree these documents so they can be placed before the judge – rather than make an application to court for permission to rely on expert evidence, which they will inevitably foot the bill for if the application is refused.

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