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A Salutary Warning to the Expert

Medico Legal

An expert has been sent to prison for giving false evidence to the court. The case offers a salutary lesson Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392.

The claimant was involved in a motor accident. His solicitor instructed the expert to prepare a report on the injuries. The expert saw the claimant briefly, and made a written report. The injuries were said to be minor. The claimant and the solicitor were dissatis- fied, the expert was asked to alter the report, to mag- nify the injuries. The expert got a member of his staff to produce a second report, in which the injuries were indeed said to be much more serious. Only the second report was disclosed to the defendants, no mention was made of the first report.

As every expert knows, he must comply with the Civil Procedure Rules part 35, and his report must contain a statement of truth. As every expert knows, his over- riding duty is to the court. He must be honest, careful, objective, impartial, independent, transparent. To put it another way, every expert knows that he must not be dishonest, or corrupt, or false, or reckless, or mislead- ing, or in breach of trust, or motivated by personal or financial gain.

The ultimate decision in the case will be taken by the judge (or the jury if there is one) but the evidence of the expert can be critical, virtually decisive, e.g. an en- gineer in a construction case, or a doctor in a personal injuries case. A false report can undermine justice.

If a genuine error emerges then the expert should immediately rectify that error, but give a full expla- nation, and ensure that everybody involved is promptly informed. However, as a general working principle the expert should refuse to alter or amend or change his report, his honest and careful report.

The consequences of a dishonest or reckless report can be grievous for the expert. Not only will he suf- fer shame and ruin to his professional reputation and practice, but he will almost certainly receive a prison sentence, which will not be suspended. Persisting in dishonest or reckless behaviour, or giving a false ex- planation, or seeking to blame a third party, will be aggravating factors.

That statement of truth must indeed be true!

© Alec Samuels

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