To have one expert disregarded as partisan may be regarded as a misfortune; to have four (4!) described that way looks like carelessness…

Whilst perusing the papers (other news formats are available) over this weekend you may have seen reports about the burglar awarded over £5 million. As oft happens when legal cases appear in the media, the journalists rather lost sight of the bits of the case that the lawyers may actually find interesting.

A short summary of the facts for you before we get into the meaty part of the story. Our judge is HHJ Melissa Clarke, sitting as a Judge of the High Court. Mr Wilson, the eponymous claimant in Wilson v Ministry of Justice [2024] EWHC 2389 (KB) was a guest of Her Majesty when he was stabbed in the prison kitchens. Unsurprisingly (or surprisingly, depending on your experience) liability was admitted only a little over 1 year after the attack. The assailant was in prison for murder having stabbed somebody to death, yet had been put to work in the kitchen, with large knives around despite a risk assessment noting the risk arising from so doing was “unknown”. Accordingly the case was about quantum only. Mr Wilson was in fact on remand at the time of the attack, later being convicted and sentenced to 9 years, reduced to 6.5 years on account of his injuries.

Mr Wilson sustained a catalogue of serious injuries from the various stab wounds, including an incomplete spinal lesion. This led to the need for spinal experts to give evidence, along with experts in psychiatry, pain medicine, physiotherapy, care/OT and accommodation, together with a single joint expert in urology.

As is now a regular feature of personal injury litigation, surveillance evidence formed part of the case. Perhaps, given Mr Wilson’s criminal history, which was far more extensive that the index offence that had led him to the kitchen on the day that changed his life, the Defendant was confident they would find something to discredit the Claimant. Indeed, the Defendant’s approach to the surveillance evidence and expert evidence, as we will explore further below, suggests they thought they did have something to discredit the Claimant. The alarm bells should perhaps have been ringing, however, when the Claimant’s position was that the video evidence in fact helped his case.

The next warning to the Defendant should have been when its care expert agreed in the joint statement with the Claimant’s expert. Rather than see agreement at the joint statement stage as a good thing and in accordance with an expert’s duty (or even just seeing it as the writing on the wall) the Defendant instead applied for permission to change that expert. Permission was not granted, leaving the Defendant with no evidence of its own on care needs and costings, save for agreement in the joint statement with the Claimant’s expert. This on a case of a spinal lesion in an individual aged 36 at trial with permanent care needs. One may have thought care evidence might be rather important.

It should be noted at this stage that this care expert was not even one of the four mentioned in the opening to this article. Oh no, it got worse for the Defendant. Perhaps this was the one expert who stuck to their guns.

Firstly, the pain medicine expert for the Defendant, Dr Edwards, “significantly altered his stance in cross-examination to reach a position much closer to that” of the Claimant’s expert. Next the Defendant’s physiotherapy expert, Mrs Keech, after embarking on the case in a balanced and sensible fashion initially, veered away to a “partisan approach” having seen the surveillance evidence, “cherry-picking what she mentioned and what she failed to mention in order to paint a positive and improved picture of Mr Wilson which was not one that could fairly be drawn from the video surveillance” evidence. Then the Defendant’s accommodation expert, Mr Burton, “emerged out of… cross-examination with his credibility and independence significantly damaged”. Having initially, like Mrs Keech, approached the case independently and fairly, upon seeing the surveillance videos Mr Burton then allowed his evidence “to be corrupted”.

And now we reach the crescendo. The Defendant’s spinal expert agreed he had lost all independence and objectivity. HHJ Melissa Clarke, unsurprisingly, requested the point be put again to ensure Mr Kumar had understood it. Again Mr Kumar agreed with the proposition. Whilst he tried to row back on that later in his evidence, the judge noted multiple areas of his evidence that caused her concern. A flavour of the issues are as follows:

  • Recording that the Claimant did not use a wheelchair, within the same report quoting the Claimant telling Mr Kumar that the Claimant used a wheelchair;
  • Recording no balance or weakness issues, despite repeatedly reporting exactly that, again within the same report;
  • Accusing the Claimant’s spinal expert of changing his findings, when he had done no such thing;
  • Entirely misconstruing what the surveillance video evidence showed;
  • Commenting that the Claimant’s car as seen in the surveillance video evidence did not have a MOT.

The accumulation of all these issues meant that “to place any significant reliance on Mr Kumar’s non-objective and partisan evidence would be to risk an unjust outcome in this case.”.

Ultimately HHJ Melissa Clarke noted:

“I find that Mr Burton knew that he had been shown the draft or unsigned Inadmissible Expert Report before producing his supplementary report, and in providing the evasive answers that he did, was seeking to hide that fact from the Court. That is disappointing. Mr Burton should not have allowed his initial assessment of Mr Wilson’s accommodation needs as summarised in the joint statement, which I am satisfied was both independent and fairly arrived at on the evidence before him, to be corrupted in this way and the solicitors in the Government Legal Department should not have asked it of him. I consider that there should be some introspection on the part of the Government Legal Department about this, and about whether Ms Keech was also placed under any pressure to move away from her initial independent and fair approach as set out in her initial report and joint statement, to the more partisan and, in parts, unfair analysis of the video surveillance that she produced.”

Replacing the words ‘Government Legal Department’ with ‘solicitors’ makes this a sensible warning for all litigators in personal injury (or indeed any litigation with experts). Experts are there to guide on areas within their expertise, but that guidance is ultimately not for the party who instructs them but for the court. The first and last responsibility for any expert is to assist the court. An expert who forgets that and the party who indulges or requests it are simply putting themselves onto a path to excruciating judicial criticism at least.