by Marisa Shek, BA (Hons), Dip Arch, RIBA, Cowan Architects
A conflict of interest is normally portrayed in a negative way, as it should be. However it is of interest to all those involved in Expert Witness work to consider the parameters of what can be considered a conflict of Interest and to ensure that those parameters are not contravened if the Expert is requested to extend their advice and expertise beyond the litigation.
Part 35 of the Civil Procedures Rules state that Experts must not be involved in any conflict of interest and that any potential for conflict should be fully disclosed. This is not always the case in practise and has lead to potential for miscarriages of justice.
A good example
By way of example, the Court of Appeal in Toth -v- Jarman (2006 EWCA Civ 1028) has given guidance on how Expert Witnesses should handle potential conflicts of interest.
This was an appeal by a Claimant in a clinical negligence claim. The Defendant was a general practitioner who treated the Claimant’s son. Despite treatment, the son died and the Claimant sought damages for psychiatric injury based on the Defendant’s alleged negligence. The Medical Defence Union (MDU) was acting for the Defendant and instructed an Expert to report. The Expert’s evidence was favourable to the Defendant, and at trial it was preferred by the Judge to the Claimant’s Expert’s evidence. However, on appeal, the Claimant claimed there had been material non-disclosure by the Expert of a conflict of interest arising out of the fact that the Expert was a member of the Cases Committee of the MDU at the time the report was written. The Cases Committee is the part of the MDU that takes decisions on whether to defend any given action.
The Court of Appeal explained that a conflict of interest does not automatically disqualify an Expert from giving evidence. The key is whether the Expert’s opinion is independent of the parties and the pressures of the litigation. The Guidance states “The Expert should not leave undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the court’s decision. The conflict of interest could be of any kind, including a financial interest, a personal connection, or an obligation, for example, as a member or officer of some other body. But ultimately, the question of what conflicts of interest fall within
this description is a question for the court, taking into account all the circumstances of the case”.
Bring in the Expert
In the judicial world an Expert can be defined as anyone with knowledge of or experience in a particular field or discipline beyond that expected of a layman. An Expert Witness is an expert who makes this knowledge and experience available to the Court to help clarify the issues in a case and thereby reach a sound and just decision. But implicit in the name and role, must also be the honesty and integrity to be totally independent in the expertise provided, irrespective of its effect and outcome.
A conflict for everyone
A conflict of interest can arise when a person or organisation is involved in multiple interests (financial, emotional or otherwise) one of which could possibly corrupt or influence the motivation of the individual or organisation. Such is the seriousness of these implications, that most companies and professional bodies tackle the questions clearly in their codes of practice or professional conduct. For example the Royal Institute of British Architects (RIBA) places Integrity as its first principle stating that it “expects its Members to act with impartiality, responsibility and truthfulness at all times in their professional and business activities”.
RIBA’S principles of conduct
1.1 The Royal Institute expects its Members to act with impartiality, responsibility and truthfulness at all times in their professional and business activities.
1.2 Members should not allow themselves to be improperly influenced either by their own, or others’ self-interest.
1.3 Members should not be a party to any statement which they know to be untrue, misleading, unfair to others or contrary to their own professional knowledge.
1.4 Members should avoid conflicts of interest. If a conflict arises, they should declare it to those parties affected and either remove its cause, or withdraw from that situation.
1.5 Members should respect confidentiality and the privacy of others.
1.6 Members should not offer or take bribes in connection with their professional work.
These themes are recurring and embedded in the Codes of Practice of many professional bodies such as the British Medical Association, the General Medical Council and the College of Occupational Therapists. They also go further, with the BMA stating that the ‘perception’ is as damaging as the reality. The General
Medical Council says “You must not ask for or accept – from patients, colleagues or others – any inducement, gift or hospitality that may affect or be seen to affect the way you prescribe for, treat or refer patients or commission services for patients”. One of the world’s largest international associations of occupational therapists emphasises that “ethical action goes beyond rote compliance with these Principles and is a manifestation of moral character and mindful reflection”.
An explosive combination
The combination of medicine and the law can lead to an explosive situation if there is an unseen conflict of interest and obviously the role of the Expert Witness in Court can be a hot spot, so that however appropriate the evidence, it can be tainted if there is not full disclosure.
But are there occasions where the potential benefits of being able to tap into the extensive experience of an Expert to help solve a Claimant’s problems should be taken into account? If so, it follows that a process to remove any perception of conflicted interest becomes paramount.
If we examine this role carefully and pinpoint the potential for conflicts of interest to arise, there may be examples where, by defusing the potential for a conflict with an appropriate disclosure, the end result is beneficial for all parties. Can the instructing solicitor square the circle in such situations? If the parties are fully aware the key probably lies in ensuring the completeness of the disclosure and an explicit openness.
Any Expert Witness’s responsibility is completely to the Court and this is coupled with the strength of the morays and ethics of their professional body that should place their integrity above suspicion. Could it be argued therefore that this makes such a person well placed to provide additional advice to the Claimant to the benefit of both them and the Court.
Ronald Reagan said that “Peace is not absence of conflict but the ability to handle conflict by peaceful means” so that if everyone, on both sides, is aware and
satisfied with the arrangement, there should be no undue influence and the Expert’s integrity is maintained.
Perspective and nuance
Some conflicts of interest are so obvious as to make it difficult for a Court to see an Expert Witness’ opinion as independent but there are situations where the
perspective changes. Nuances in a conflict of interest certainly exist but should certainly not be taken as far as Silvio Berlusconi, who magnanimously claimed, “If
I, taking care of everyone’s interests, also take care of my own, you can’t talk about a conflict of interest”!
An Expert Witness sits as part of the Litigation Team of barristers, solicitors and experts to advise the Court, but, depending on their area of expertise may be asked in parallel by the Deputy’s Team to assist the Claimant with additional guidance and help. An example of this might be assistance in acquiring and
adapting a suitable property.
It needs to be assessed as to whether or not it is ethical that such a person should be able to provide such information. It’s essential to look at what can be
achieved from this position. From their position in the Litigation team, such an Expert will not only be fully conversant with the details of the case but also with the needs of the Claimant making the claim; perhaps better positioned than other Architects to provide continuing advice to the Claimant on their housing needs.
Taking this example further, the Expert Witness being an architect who also understands the litigation process and the legal system from the inside, is in an
advantageous position for the Claimant to be pragmatically advised rather than by a local, non- specialist, architect, who is unfamiliar to the ramifications of the case and the general constraints of the litigation process. This is to the advantage of both parties and ultimately to the Court. The litigation expert knows that they will have to justify any expenditure to the Court and that the parameters that guide them are therefore ring-fenced, whereas the local architect is not obligated in the same way. The Claimant is their only client and they will not be aware of the legal constraints. They can happily fit ‘gold-plated taps’ if asked, but the litigation expert will know and advise that the expenditure authorised by the Court is unlikely to allow it, leaving the Claimant to pick up the bill.
Disclosure is Key
The potential for conflicts of interest for Expert Witnesses should be a concern for the litigators and experts alike.
Disclosure is key in any potential or perceived conflict, so that all parties can make a judgement for themselves as to who is best placed for the task in question. Indeed, one of the recommendations made by Lord Woolf in his Final Report is that an Expert’s report should end with a declaration that in it the Expert has drawn to the attention of the court any matter that affects the validity of the opinions he has expressed therein.
In summary, we can see that so long as everyone on both sides of the Court is aware of any potential conflicts of interest, there may be times when it can
sometimes be in the best interests of the Claimants for an Expert Witness to have a foot in both the Litigation and Deputy’s camp so long as full disclosure allows the proceedings to continue to comply with Part 35. ?
Marisa Shek is an Expert Witness at Cowan Architects, who are an established, award-winning practice that specialises in the healthcare and disability markets making it one of the country’s leading proponents of inclusive design.
This expertise has led to five of its architects acting as Expert Witness on disability accommodation issues for the High Court. They have also been involved in a number of cases involving litigation support and dispute resolution from building defects.
Although mainly in the UK, this specialism has taken their experts to Ireland, France, Spain, Italy and the United States.
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