Be careful how you choose your experts!

Whilst those holding themselves out as experts may get away with it online, in court when the chips are down this type of folly can result in your losing your case and the expert being held for contempt of court.

One key aspect to consider when hiring your expert is do they understand their duties to the court? Unless trained by a reputable body for experts its likely key aspects of the legal duties imposed on an expert and not fully understood.

These requirements under Part 35 of the Civil Procedure Rules (CPRs) and related Practice Direction (PD) are key to fulfilling the duties of an expert. The biggy is that your report (which includes your CV and perhaps biography) is true and is his/her independent opinion. In this article I am going to set out an example of the most serious of cases in the next few weeks some cases that are more nuanced and where many experts make errors in suggesting expertise that can impact the instructing solicitors case. Why is this of interest?

Well as an expert you may know of and have knowledge of the other sides expert. If on assessment of the bundle you see serious flaws in the other experts report or declaration of expertise, then you may want to raise this with your instructing counsel. In addition, it should educate those readers to be cautious on whom they use to support their case especially in cases straddling food science and food law which is a unique area of expertise.

Custodial sentence in cases of contempt

A statement of truth confirms the signatory to it understands that they honestly believe the facts stated in the document are true. That they make clear which facts/views are their own/others. Also, and importantly it also confirms proceedings for contempt can be brought if they sign the statement dishonestly (See statement of truth below).

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. 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.”

This amended statement was implemented in 2020 following a very important case involving both counsel and the expert witness. Whilst content is not a criminal offence the result and related issue can be such as perjury or fraud. Even if not a criminal offence it is punishable by a custodial sentence.

The Key practice direction is CPR 32.14(1), which provides:

“Proceedings for contempt of court may be brought against a person if he 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.”

In 2019 a Court of appeal case concerning a medical practitioner (Dr Zafar) who was called upon to assess and report on an individual who was claiming compensation for a whiplash injury. Dr Zafar issued a report to the insurer stating there was no continuing evidence of continuing medical problem. The report generated using software helped the Dr produce a report within 15 minutes. The claimant complained to the solicitor that report was inaccurate; so it was requested the report was amended to add in additional symptoms which had not been apparent at the examination. The expert produced a second and materially different second report that made no reference to the 1st and both reports included the declaration of truth.

The bundle of documents for the court proceedings accidentally included both reports for which he was instructed to issue a witness statement, which was incorrect at the 1st attempt and so issued a second version again including statement of truth. As a result the insurers (defendants) in the case commenced proceedings in the High Courts against the expert seeking his committal on the basis the expert made false or reckless statements interfering with the course of justice.

The ruling of the court was 2-fold. The expert was found to have acted dishonestly as did the solicitor given the solicitor had initiated a second report to achieve a better outcome for his client. The High Court sentenced the expert to a custodial sentence of 6 months, suspended for 2 years. The solicitor was sentenced to 15 months’ immediate imprisonment.

In summary, this case should never really of happened as the historic case of the “The Ikarian Reefer” continues to provide an excellent guide for the expert as it relates to their duties and conduct before the courts.

Sources:

Liverpool Victoria Insurance Co Limited v Zafar (2019) EWCA CIV 392

The Ikarian Reefer” [1993] 2 Lloyd’s Rep 455

#foodlaw #expertwitness #DrZafar #CPR #practicedirection #court

English Tribunal Accepts the Term ‘Raw Honey’ Is Not Misleading!

In a case that made the headlines in the UK due to a judge’s reference to fictional characters from the Winnie-the-Pooh series of children’s books, the decision on the use of the term ‘raw’ as it relates to honey has significant implications for this category. The ruling goes against the view held by statutory enforcement bodies and their acceptance of industry guidance prohibiting the use of the term ‘raw’. The case has a number of interpretive effects within the meaning of the UK Honey Regulations and the institutional reluctance to engage with the latest science. What this case was about, how the court came to its decisions and the practical implications for the marketing of honey in the UK are discussed in this article.

Source: https://effl.lexxion.eu/article/EFFL/2024/4/5

Case: https://caselaw.nationalarchives.gov.uk/ukftt/grc/2024/157?query=ukftt