Expert Matters - The Podcast

At a time when psychologists in particular are concerned about psychological evidence being given by psychologists who are unregulated, this case illustrates the risks when an ‘independent’ social worker gives psychological evidence.

The learning points are of general application. The specifics of the case are for psychologists, psychiatrists and social workers.

Coventry City Council v XX [2024] EWFC 249 (B) 

The father sought permission to rely on fresh evidence that he had a diagnosis of autism spectrum disorder in an appeal against care and placement orders made in respect of his daughter. The judge reviewed the law on admitting fresh evidence on appeal before applying it to the case.

The judge noted that the expert readily accepted that integral to his reasoning was that he did not believe the claimant as to the symptoms he had suffered and, probably, teh claimant's account of the incident. In the judge's view, it is entirely outside the remit of an expert to decide which witnesses of fact he believes or disbelieves.

Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB) 

The court found that a highly respected and hugely experienced histopathologist expert witness, who was overburdened with work, had made errors in his examination of the forensic material and closed his mind to possible or probable accidental causes for the injuries identified. 

London Borough of Hammersmith and Fulham v G [2024] EWHC 2200 (Fam) 

The judge in this patent case found that the claimants’ gene therapy expert had developed, quite possibly guided by lawyers, the understanding that the primary duty of an expert witness is not to say anything that may damage the instructing party’s case if it can be avoided.

In this US case, an expert in fiduciary services used Microsoft’s Copilot to cross-check calculations he used in expert evidence. He was unable to recall the prompts he used, state the sources Copilot relied on, or explain how the tool worked and arrived at its outputs. The judge provided some useful insight into the challenges with using AI in expert evidence. 

The defendant’s spinal cord injury expert in this case agreed early on in his cross-examination that he had lost all objectivity and independence in the case, while the defendant’s physiotherapy and accommodation experts were criticised by the judge for adopting more partisan approaches in their later evidence.

The judge found that it was without justification and entirely unecessary for an expert to question the opposing expert's professionalism and motives in selecting evidence, noting that this approach was unhelpful for the tribunal. 

Earlier this year, we asked our members about the single biggest change they’ve seen since they started practicing as an Expert Witness. With members from numerous disciplines who’ve been practicing from 40 years to 4 months, we expected a wide variety of insights, and we weren’t disappointed.

This case is primarily of interest to obstetricians, illustrating the court’s approach to the disputed interpretation of cardiotocographic evidence. There were no midwifery issues as such, but it may be of some interest to midwifery experts. The general learning points speak for themselves without reading the summary.

Woods v Doncaster and Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB)