The use, quality and reliability of expert evidence are controversial issues. The use of such evidence was once a rare thing. Recently it has become more commonplace and often plays a crucial role in how a case is determined, particularly in personal injury cases. There is now a new breed of “professional experts” whose main source of income comes from acting as an expert in litigation. With so much choice on offer it is said that solicitors “shop” for an expert who can support their case.

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The Woolf reforms attempted to deal with some of the issues pertaining to expert evidence. For example, the Civil Procedure Rules gave judges greater control over expert evidence and introduced a new type of expert: the single joint expert. Part 35 emphasises that the expert’s overriding duty is to the court, irrespective of who called the expert. Thus the party’s witness became the court’s witness. As expert evidence continues to play a bigger role in the adversarial system, so does the question of potential bias and whether more reform is needed.

Glenn R Anderson suggests, in his treatise titled Expert Evidence [2nd ed (Markham, Ont: LexisNexis, 2009) at p 341], that bias in expert evidence is prevalent, but not necessarily dishonest or an intentional attempt to mislead or confuse the court:

“Attitudes and expectations inherent in the adversarial system foster certain beliefs about the role of the expert witness. Some expert witnesses genuinely view it as their proper roleto assist persons employing them by whatever means is enabled by their specialised knowledge. These experts are biased, but not necessarily dishonest. They do, however, overlook their primary duty to assist judges and juries.”

True bias in a legal sense is relatively rare, but has been discussed in two recent decisions, Regina (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] QB 38 and Helical Bar plc v Armchair Passenger
Transport Limited [2003] All ER (D) 436 (Feb). Nelson J in Helical Bar v Armchair summarised the principles that he said had emerged from the authorities as follows:

• It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.
• The existence of such an interest, whether as an employee of one of the parties or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection.
• Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.
• The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert witness should be permitted to give evidence.
• The questions which have to be determined are whether:

• the person has relevant expertise and
• he or she is aware of their primary duty to the court if they give expert evidence, and willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty.
• the judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.
• if the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.”

But what about bias in the wider, ordinary meaning of the word? The Oxford English Dictionary defines bias as an “inclination or prejudice in favour of a particular person, thing, or viewpoint”. Does bias in that sense exist within expert evidence? Does it matter and to what extent should the law intervene? These are issues I explored in an interview with Mr Charles Crawshaw FRCS, a leading orthopaedic surgeon, who regularly acts an expert witness, to discuss the issue of bias from an experts’ point of view.

I asked Crawshaw whether he thought bias exists in expert evidence and his answer was a resolute “yes”. Crawshaw says that in many cases he deals with the expert for the claimant paints an obviously biased picture of the degree of disability even when confronted with
video evidence. He says that if you take the example of a patient who has ended up with a below-knee amputation you will often get a claim by the expert that the patient will not be able to work again, will need a bungalow, a wheelchair and a converted automatic car. That is despite the fact that people with below-knee amputations should be expected to return to a near normal lifestyle. He explains that there are soldiers who have returned to frontline duty after losing their leg and peoplewith both legs amputated who have climbed Everest.

In relation to whiplash injury sustained in car accidents, Crawshaw says: “If you look at the facts the vast majority of spine surgeons in the UK do not believe that this condition exists. There are no tests for the condition. It occurs almost exclusively in litigants or in those who stand to gain in some way and in countries that do not have litigation for it very few patients ever complain of whiplash or show the disability that is ascribed to it.”

In support of this view he cites a number of formal scientific studies including Schrader et al, Lancet 1996; 347:1207-11, which looked at people involved in car accidents in Lithuania where there was little awareness among the general public about whiplash injury. Not one member of the study group reported disabling or persistent symptoms as a result of the car crash and the study concluded that expectation of disability, a family history, and attribution of pre-existing symptoms to the trauma were more important determinants for
the evolution of the whiplash syndrome. A more recent study, Represas et al in the Journal of Forensic & Legal Medicine. 15(6):353-5, Aug 2008, involved 10,000 whiplash patients and again revealed that the incidence of whiplash was heavily influenced by the amount and availability of economic compensation in a particular country.

Mr Crawshaw says that despite doubts about the true nature of whiplash syndrome there are a few experts who make a very healthy income from supporting the diagnosis.

Mr Crawshaw makes a similar point about back injuries occurring in the work environment. A study of 3,020 aircraft employees at a Boeing factory (Bigos et al) found that there was no difference between those reporting and not reporting acute back injury according to
gender or working conditions. Instead, some of the best predictive factors for back pain included prior history of back condition, enjoyment of their job, acceptance by peers and other psychological variables.

One might reasonably ask whether biased expert evidence matters, especially in the adversarial system where a judge can reject the evidence of one party in favour of the other. However, Mr Crawshaw’s view is that, as a consequence of lack of training or experience in the relevant field of expertise, judges often resort to accepting the evidence of the expert which most closely matches their ownperception of the merits.

In any case, given that expert evidence is often crucial to the determination of claims, the issue of potential bias should not simply be ignored. Personal injury litigation alone is estimated to cost employers £3.5 billion annually [figures from the Institute of Actuaries working party report on compensation culture]. Overall, it is clear that expert evidence has a significant impact on the outcome and
cost of much litigation. Experts enjoy considerable privileges in respect of the evidence that they give, including protection from proceedings for professional negligence in respect of their evidence in court and immunity from proceedings for defamation. Yet with those privileges comes a real responsibility to ensure that their testimony is truly independent and impartial.

What, if anything, can be done to improve the current system? One proposal for reform has been tentatively raised in Lord Justice Jackson’s recent report on costs. He suggests that the courts should pilot the procedure developed in Australia known as“concurrent evidence” (colloquially known as “hot-tubbing”) in cases where all parties consent. This procedure diminishes the adversarial nature of the proceedings by requiring both experts to give evidence simultaneously. Supporters of the procedure suggest that the psychology of placing the experts face to face reduces the chance that an expert will slavishly adhere to his own party’s position, in part because the opposing expert can immediately respond to rebut the point.

A more radical proposal for reform would be the adoption of single experts selected and appointed by the court, as an alternative to Single Joint Experts selected by the parties. There is undoubtedly a danger that experts might be unconsciously influenced by financial motivations when regularly proposed by lawyers with large practices in the relevant field. An expert selected andappointed by the court is more likely to be truly independent and place more emphasis on his primary duty to the court. Administrative difficulties involved with
such a proposal are not insurmountable. Arbitral tribunals regularly appoint their own expert, often without input from the parties. It is sometimes said that costs would increase because parties may resort to the appointment of so-called “shadow experts” to advise them. However, any such practice could be discouraged by a rule that disallowed recovery of those costs.

Aside from the proposals set out above, it is submitted that other potential reforms might include:

• a formal Code of Conduct applicable to all experts. This is something which has been introduced in Hong Kong from April 2009.
• introducing a system for “blacklisting” of experts by the court in appropriate circumstances. This could only be applicable for the worst kinds of abuses and would need to be subject to appropriate safeguards including a right of appeal by any expert affected.
• introducing a rule requiring both claimant and defendant solicitors to disclose to the court a full history of occasions on which they have appointed their expert in previous proceedings.
  

Regardless of whether one agrees with the proposals outlined above, it is hard to disagree with the proposition that some reform in this area is long overdue.

Marie-Therese Groarke
Barrister