Threatening behaviour

Do you remember me telling you, in March, about the expert witness in the Sally Clarke murder trial? It was important to us in construction because construction disputes are heaving with expert witnesses. But not all of them know the rules.

The expert in Clarke case was Professor Roy Meadow. Mrs Clarke got life after both her sons died of cot death. Three years later, after an appeal, she was released. Meadow was part of the prosecution team. He was reported to the General Medical Council (GMC), which found “serious professional misconduct”, and he was struck off the register.

The GMC was later held to be wrong. Meadow was not guilty of the charge. The judge reviewing the GMC’s decision decided that expert witnesses were entitled to immunity from disciplinary, regulatory or “fitness to practice” (FTP) proceedings, comparing it with the rule that nobody can sue an expert witness for anything said or done in the course of legal proceedings.

If a surveyor is engaged as an expert in a dispute but drops a clanger and their client, because of this, loses the dispute, the client can’t sue the surveyor. This is not a protection device for the expert; it concerns the administration of justice. Witnesses should not be afraid to correct their mistakes. A surveyor who blunders should be encouraged to reverse an opinion. They should never cling to a position for fear of being sued. Hence their “immunity from suit”.

Well, said the judge, then the expert should also not have to fear disciplinary proceedings from a professional institution and the prospect of being struck off the expert register and thrown out of the institution. If that threat plays on your mind, you might convince yourself, even unwittingly, not to admit errors or omissions.

Wrong, said the Court of Appeal. There is to be no extension of the immunity rule. Architects, surveyors and engineers are regulated by royal Charter; for example, the RICS regulates surveyors for the benefit of the public. FTP proceedings are to protect the public; they may also penalise practitioners, but that is by-the-by. They ask, “Is this member fit to practice?” The first duty of the RICS is not to its members, it is to the public.

Credit: Simone Lia

"I've dropped a clanger"

"Don't worry, I've dropped a couple too"

The court tends to see the institution as a teaching as well as a monitoring body. It sees the threat of FTP proceedings as being in the public interest. FTP proceedings may deter experts who are tempted to give partisan evidence – “the hired gun” being a total no-no in the expert witness business. You would not be fit to practice if the institutional body had evidence that, in a future appointment, you would fail to act independently and would not give an unbiased opinion.

Unfit, too, if you give an opinion outside your experience, or if your opinion is based on insufficient information, or if you fail to state the facts and assumptions on which your opinion is based. An expert must be able to assert that any report they prepare contains the whole truth or includes a key qualification about the truth. It’s thumbs-down if you’re unwilling to change your view, having read the other side’s expert report. In other words, unwillingness to change your opinion is a reason to label you unfit to practice.

All this is fine upstanding stuff, but it boils down to this: the Court of Appeal thinks standards can’t be met by expert witnesses without threats. True, the threat of being sued is a rock solid no-go, but the lurking shadow of an institutional inquiry is considered a reasonable threat. It seems it’s okay to be threatened with removal from an expert witness panel or even dismissal from your institution or removal of your qualifications, which would stop you from earning a living.

A real problem is the unfounded, even malicious, complaint to the institution. Those are not uncommon, yet the inquiry still trundles its merry way and nobody has an answer for this. Nor does anyone

argue that if this “fit to practice” process is truly about training, then only those institutions who train should actually examine it.