Case commentary in finding of fact hearing – By Mollie Briggs

Expert falling short in his duty to the court: Hertfordshire County Council v Mother & Ors [2022] EWFC 106

Facts

• The case involved a fact-finding hearing where the local authority applied for care orders in respect of two children, after the youngest child sustained significant brain injuries following a fall from the father’s arms whilst he was holding the child and picking up the older sibling.
• The Judgement sets out the essential background which includes concerns raised by treating clinicians of inconsistencies in the parents’ accounts, and whether the severity of the injuries were consistent with the explanations provided [10].
• The LA commissioned a report from Dr N, a consultant neuroradiologist. Following the issue of care proceedings, directions were made for single joint expert assessments, namely a paediatric radiology report from Professor AM and a neuroradiological report from Professor Sellar (Professor S). Both experts were required as witnesses at the fact-finding hearing.
• After hearing the evidence, the LA accepted they were unable to establish threshold and sought leave to withdraw. The parents and the children’s guardian sought a full decision exonerating the parents.
• The LA, the mother, and the father all sought findings against Professor S, relating to criticisms of his conduct as an expert witness.

The Law

The judge set out the approach to be taken when the court is considering making findings against medical professionals, at [28]:

“In the case of Re W (A Child) [2016] EWCA Civ 1140, a judge made findings against professional witnesses which had not been put to the witnesses in the witness box. The approach the court should take is as follows:

“(95) Where during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

1. Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence;
2. Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;
3. Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.

(101) It is, unfortunately, sometimes the case that a judge in civil or family proceedings may be driven to criticise the professional practice or expertise of an expert witness in the case… If criticism is to be made, it is likely that the critical matters will have been fully canvassed by one or more of the parties in cross examination. I have raised the question of expert witnesses at this point as part of the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to witnesses in general, and expert witnesses in particular.”

The critique on expert evidence

Within the court’s decision on the fact-finding hearing, Professor S was strongly criticised by the court, for reasons as summarised below:

• Not fulfilling the responsibility of a court authorised expert: the LA brought the proceedings based on the severe injuries and the report of Dr N, who was not the authorised expert. Therefore, it was “somewhat surprising to find Professional Sellar seeking to defer to [Dr N]’s opinion, when struggling to justify his own opinion, when Professor S was the expert called to report in the case” [113].
• Failure to revise and reconsider documentation: following Professor AM’s evidence, consideration was given to whether a summary of her evidence could be agreed and sent to Professor S before he gave his evidence the next day, however time constraints prevented this and as a result only limited information concerning Professor AM’s change in position was provided to Professor S. It was noted that if Professor S “wished to consider the documentation further and reconsider his opinion between the two occasions he could have done so and he did not” [114].
• Limited subtlety in cross-examination, not to the fault of counsel: it was acknowledged that “At the time he went into the witness box Prof S knew he was the only expert giving an opinion that the injury was unlikely to be accidental and that he would be challenged on that. Professor S was specifically taken through his duty to the court, his certification in his report and what the parents said were breaches of his duty and deficiencies in his evidence” [115].
• Failure to read and fully consider papers: Despite his duty to the court, Professor S had not fully or properly considered the papers. In reporting that there had been an error opening the GOSH file, he claimed in his evidence that he had made it clear that he had not read the GOSH records. However, the court observed that “an error implies a problem or a mistake. It is wholly different from “I was unable to open the GOSH file”” and therefore it was not clear to the court that he had not read these files, prior to giving his evidence [116].
• Unreasonable expert fees and failure to follow letter of instruction: it was recognised that the Legal Aid Agency only authorise a limited number of hours and costs for an expert to prepare their report, based on an estimate of fees and time for completion as advised by the expert. For the type of report Professor S was instructed to prepare, the standard limit is 10 hours. He however estimated 45 hours and was instructed on this basis. It is worth reminding that he was under a duty to seek an increase in hours if he was unable to do the work in the authorised time frame. He was asked in his letter of instruction if his fees would likely exceed the 45 hours, and there was no evidence that he ever exceeded this. Yet, Professor S charged for the full 45 hours. The father submitted that if he was unable to open the GOSH records, he must have only considered just over 300 pages of the material. The 45 hours was broken down to 12 hours for preparation (reading and reviewing the papers), 8 hours for results and formulation, and 19 hours for report writing. Yet the report was 27 pages plus appendices, only 7 pages comprised a substantive opinion. The court made clear that “if he was unable to do the work due to workload he should not have accepted the work or committed to completing it in the time allowed” [117]
• Providing a report without reviewing all material: Professor S provided his report notwithstanding his knowledge that he knew he was missing reports he had been specifically asked to comment on and had not sought out those reports or explicitly stated he had not seen them – “this was despite his certification that he had done his best, in preparing the report, to be accurate and complete, and that he had drawn attention to all matters, of which he was aware, which might adversely affect his opinion” [119].
• The expert reasoning ignored crucial aspects of the injury: Professor S reported that there was a range of reasonable opinion that the injuries were accidental. Yet, this was “a complex fall, involving gravitational and rotational forces, onto a hard surface. His statement that “The history of a fall from~ 4 -5 feet. This on its own is very unlikely to cause the severe (radiological) brain injury” ignored the complex nature of the fall” [120].
• Inappropriate reliance on research data: Professor S’s reliance on research data in relation to the injuries presented here posed “obvious and fundamental difficulty” [121]. The danger arises because “Unless the mechanism of injury was observed independently and accurately then researchers are unaware whether they are dealing with a common occurrence, an “outlier” (a rare but possible occurrence) or an inflicted injury. This applies as much to cases where significant injuries are sustained as when a child sustains little or no significant injury whatsoever, although those circumstances may never be reported and mean statistics are not a fair representation of the true picture” [121]. Whether there are sufficient cases for a pattern or range of injuries to be derived from research data is a further issue. Research has been supplemented by experiments on dead babies and pigs, and there is limited information on how injuries were sustained; the court acknowledging “the devil is in the detail” [121].
• Failure to consider highly applicable research: Professor S failed to consider work carried out by Bilo et al. and had mis-quoted or mis-interpreted Weber’s research, given that none of the medical research dismissed the probability that the injuries were caused as the parents described. Neither expert identified relevant literature when preparing their reports. Professor S had also failed to raise his inability to access material with his instructing solicitor. Had he done so, he would have identified the necessary consensus statement from the GOSH neuroradiologists.

• Misrepresenting expert evidence: when presented with the relevant literature, Professor AM reverted her position to her previous report. Professor S however sought to justify his opinion despite not reading the papers or literature and had further mis-represented Dr N’s report by implying he had described the accident as “stamping” when Dr N did not say this. This was “a step too far in this court’s judgment, but the reference is indicative of a lack of care in preparation of his report” [124].
• Failure to set out range of opinions: Professor S disagreed with Dr TM about whether there was evidence of trabecular fractures consistent with a fall. This issue was covered in Dr G’s letter and a reference therein of the consensus neuroradiology opinion. Whilst they were entitled to disagree, Professor S failed in his requirement to set out the range of opinions in his report.
• Inaccurate reliance on documentation: Professor S discussed the burst nature of the injury. Despite a consensus statement referencing the herniation of the injury in two separate places, Professor S alleged the herniation had not been considered by Dr TM and her colleagues. He relied on research by Ellis “which included no description of the circumstances that led to the burst fractures described and was based upon 7 cases, one of which was caused in a road traffic accident, one was a fall from a second storey window and 5 were NAI. The court reminds itself the Ellis paper is an American paper and an American second storey is a British first floor, although it is accepted this point was not put to him” [128].

The judge accepted the criticisms Professor S as an expert who, [132]:

• “Does not read the material provided;
• Does not make it crystal clear to his instructing solicitor that he has been unable to access crucial material;
• Does not follow the terms of his letter of instruction;
• Relies on summaries and/or views of others without verifying those summaries and/or views against the primary source material;
• Relies on the opinion of other experts in the knowledge that they did not have all relevant facts/documents before forming a view;
• Fails to acknowledge where factual disputes may be relevant;
• Fails in his duty to mention all matters that are relevant to the opinions he expresses and anything that might adversely affect his opinion;
• Fails to mention the range of reasonable opinion and the extent of that range;
• Suggests to the court that opinions of others (in this case neuroradiologists) have been taken into account when they have not;
• Misquotes another expert and therefore acts in way which is likely to mislead the court;
• Fails to grasp what research (within his own expertise) demonstrates;
• Misrepresents what research says and/or shows;
• Comes to the case with a preconceived opinion which he is then unreasonably reluctant to revise, even in the face of clear evidence.”

Disclosure

The court also addressed the law on publication of the Judgement containing the details of the hospital, treating consultants and experts, considering s.97 CA 1989 and the leading decision on naming experts in A v Ward [2010] EWHC 16 (Fam).

The court held it was not appropriate to name Dr G (who while attending as a treating consultant to give evidence, was not providing an expert opinion) nor Dr N or Dr W from GOSH, given they were not experts in the case, specifically:

• Dr N “was not instructed on an ongoing basis, was provided with limited information, was not aware of the development of the evidence, may well have accepted his view could not stand if asked in light of the additional information and was not asked to attend to have his report challenged” [142].
• Dr W “was not called to give evidence. The court reminds itself that the court should not do anything to dissuade experts from providing the assistance that the court needs” [142].

It was further acknowledged that:

• Publication of the consultants and hospitals “is also likely to increase the risk of jigsaw identification significantly” [142].
• The court however declared that the decision and the closing submissions of the parties should be supplied to GOSH, as this could be of assistance to them and the treating consultants when considering safeguarding in the future.
• Before deciding whether to publish Professor S and AM, the court held they should have the opportunity to be heard. In the subsequent judgment, Hertfordshire County Council v Mother & Ors [2022] EWFC 107, the decision-making process involved:
• A balancing exercise of the competing rights under Article 8 (right to private and family life) and Article 10 (right to freedom of expression) of the Human Rights Act 1998;
• While there is a lean towards more transparency in the family courts, there is no starting point and compelling reasons do not need to be established before anonymity is permitted;
• A balancing exercise of the parents’ right to free speech and the expert’s right to a private life;
• The wider interest of the public and the courts being alert to matters of legitimate concern and for the Press as part of its role as public watchdog.
• The court determined that Professor S should be named but Professor AM should not. The criticism was of Professor S, and there was a risk Professor AM would be “tarred with the same brush” [26].

Analysis

Given the general resistance of courts to criticise professional witnesses, particularly experts, this case represents a stark reminder to all instructed experts of their overriding duty to the court. The strong criticisms of the expert here demonstrate the minimum requirements that experts are expected to execute within their professional duties. Even a leading neuroradiologist cannot get away with failing to read the papers, medical literature and misinterpreting applicable research.

The case also reiterates the importance of advocates being alive to test any critical matters regarding the expert evidence in cross-examination.

Finally, it should be borne in mind that the different outcomes towards the requests of anonymity came down to the severe conduct of one specific expert.  The Judgement features the decision-making process likely to be conducted by the court when dealing with submissions for anonymity. It is crucial for experts, in their capacity as expert witnesses, to be provided with regular professional training in order to not only fulfil their duties to the court, but to ensure they protect their reputations.

Mollie Briggs is currently a first six pupil under the supervision of Huw Lippiatt and Lucy Brown.