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Restructuring & Insolvency

The Dangers of Being an Expert Witness

Expert witnesses found guilty of contempt of court face a custodial sentence, after the Court of Appeal issued guidance in the case of Liverpool Victoria Insurance Co Ltd v Zafar.

Facts

This case concerns an expert’s conduct in a personal injury claim brought by Mr Iqbal, who was injured in a road traffic accident in December 2011.

Mr Iqbal’s solicitor instructed the expert (the respondent in this case) to prepare a medical report on his injuries as expert evidence in his personal injury claim.

The court found that the expert, on the request of Mr Iqbal’s solicitor, subsequently revised his medical report to say that his injuries were more severe and required a longer recovery time, without re-examining Mr Iqbal or using independent professional judgment.

The expert filed a witness statement, stating that his staff amended the report without his knowledge. In a later statement, the expert changed his story and said that he had amended the report as the original only dealt with Mr Iqbal’s acute symptoms.

Liverpool Victoria Insurance Co Ltd Limited (the defendant) brought proceedings against the expert under CPR32.1 for contempt of court. This was on the basis that the false statements made in the report and two witness statements were intended to interfere with, or likely to interfere with, the course of justice.

At first instance, the court found the expert guilty on ten counts and sentenced him to prison for six months (suspended for a period of two years).

The defendant appealed to the Court of Appeal on the basis that the sentence was too lenient.

Judgment

The Court of Appeal found the sentence too lenient but refused to impose one more severe. It will use this case as guidance for future cases involving sentencing for contempt of court.

In its guidance, the court stated that contempt by an expert witness is a serious offence, regardless of whether the false statement was made dishonestly or recklessly due to:

  • The reliance of the court and parties on expert evidence in the administration of justice
  • The overriding duty experts owe to the court.

Generally, a person guilty of reckless contempt is less culpable than an intentionally dishonest one. But when an expert witness is involved, the seriousness of a reckless false statement is aggravated by the fact that they are fully aware of the court’s reliance their statements.

Courts will need to consider the seriousness of false statement when considering the length of committal, and mitigating factors may include:

  1. Early admissions made before proceedings are commenced
  2. Cooperation with investigations
  3. Ill health
  4. Expressions of genuine remorse
  5. A previously unblemished character.

Expert witnesses guilty of contempt must expect a severe sanction to be imposed because of the breach of the court’s trust in them.

The court also noted that any delay wouldn’t be a relevant consideration in sentencing if it was outside the control of the guilty party and that any reduction in sentence should be by a maximum of one third if an admission is made prior to issuing proceedings. After that, any reduction should be on a sliding scale down to around 10% if an admission was made at trial.

Finally, the court decided that a custodial sentence would normally be appropriate unless there’s a powerful justification to allow a suspended sentence – the fact that a false statement was made recklessly means that suspension shouldn’t be favoured.

Comment

This case stresses the importance of honest and independent expert evidence and displays the severe consequences for expert witnesses who breached the trust placed in them by the court.

Although this case related to the evidence of an expert witness, it shows that other witnesses found to have lied in witness statements or in evidence are also likely to suffer severe sanctions.

For more information on contempt of court, please contact Edward Judge on +44 (0)20 7400 8737.

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