Summary
The judge found that the evidence of the claimants' psychological expert, Dr A, fell well below the standard to be expected of a competent expert witness, both as to form and as to substance.
Learning points
-
Make sure that you understand and comply with the relevant procedural rules, practice directions and guidance, including all required statements and declarations.
-
The EWI recommends that expert witnesses periodically undertake training to refresh their practice and eradicate any errors that may have crept in.
-
You can also use a report best practice and compliance checklist, such as the one in the EWI Knowledge Hub, to ensure that your report is compliant.
-
Always reference any sources you have relied on in forming your opinion and make sure you refamiliarise yourself with those sources as part of your preparation for any joint meetings or cross-examination.
-
If you are quoting from an article or any other document, always clearly acknowledge the source of the quoted passages.
-
Make clear in your report if a source you rely on represents a minority opinion or if the author has a vested interest in the acceptance of their views by the court.
-
Do not include anything in your report that you would not be able to explain fully to the court.
-
Make sure you are fully prepared for cross-examination. You should have at least reviewed yours and your opposing expert’s reports, reviewed any joint statement, and made sure you are familiar with the evidence bundle.
-
If, during cross-examination, you are confronted with a compliance error you have made, avoid excuses or statements that can sound dismissive like “It’s just an error” or “My reports are normally compliant”. It is better simply to accept that you have made an error, apologise to the court, provide a genuine explanation as to why the error was made, and clearly explain what, if any, impact you believe the error would have had on your opinion.
The case
The case concerns claims arising from allegations of sexual and financial abuse and exploitation against the defendant, who is the priest and founder of the Temple to Baba Balak Nath in Coventry. Baba Balak Naith is a sect of Hinduism originating in the Punjab.
The expert evidence
Both parties called expert psychological/psychiatric evidence. Dr A, a consultant psychologist, acted on behalf of the claimants, and Professor Andrew Maden, a consultant psychiatrist, acted on behalf of the defendant.
Dr A’s evidence
Dr A produced four reports and an agreed joint report with Professor Maden. Dr A told the court that the contents of her reports were true to the best of her knowledge and belief. When cross-examined, she confirmed that she had provided reports previously in cases under the Civil Procedure Rules and she was familiar with CPR Part 35, the Practice Directions to Part 35, and the Guidance for Experts in Civil Claims (‘Guidance’).
Compliance errors
Despite her assurance that she understood her duties, Dr A made a number of significant compliance errors. Her reports only included the statement of truth and did not include the specific statements required in Part 35.10 (2) and the Part 35 Practice Directions 3.2 (9).
35.10 (2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
3.2 (9) contain a statement that the expert –
(a) understands their duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.
When asked why her reports did not include these statements, Dr A did not provide an explanation, simply stating that “It’s just an error.”
When asked why one of her reports did not include a list of documents or an appendix as required by paragraph 55 of the Guidance, Dr A replied “I don’t know. I normally do that as well”. Dr A had also failed to include a summary of conclusions in the report as required by paragraph 62 of the Guidance.
Errors of substance
Matters got worse for Dr A when it came to the substance of the report.
Dr A accepted that there were factual issues and that there was a dispute as to whether the defendant could have sexually abused the claimants in a room at the back of the Temple, when the defendant argued that the room was visible from the Temple and there was no privacy. However, Dr A set out in her report that that room could have been disassembled, a supposition that was not based on any clinical evaluation or any evidence. Dr A conceded that she should not have made that statement, and she would not have included it if instructed by the defendant. The judge found that in relation to that passage in her report, Dr A “had been partisan and lost sight of her role as an expert and her duty to the court.”
Dr A confirmed that she believed she had cited all the literature she had relied on in support of her report as required by paragraph 13 of the Guidance. Counsel for the defendant pointed out that five paragraphs in her report were plagiarised from an article by Dr Amanda Lucia of the Department of Religious Studies, University of California- Riverside. These paragraphs had been lifted straight out of that article and passed of in Dr A’s report as if they represented her opinion. Dr A had not acknowledged the source of these passages or listed Dr Lucia’s article in the list of materials she had relied on.
Dr A said she was presenting these paragraphs as if they were her own because she held the same opinion as Dr Lucia. However, she accepted that she had not changed the wording, except in places where she had added her own words to make it look as if the section represented her own opinion.
The judge noted that:
“[i]t is difficult to imagine a more blatant breach not just of the provisions of Part 35, the Practice Direction and the Guidance, but, more fundamentally, an expert’s obligation to the court because these passages were, in effect, a deception practised on the court by Dr A in pretending that these passages were her own words, representing her own opinions, rather than the repetition - regurgitation if you like - of the views and opinions of Dr Lucia.”
In one instance, Dr A was unable to explain the meaning of a term in the passages copied from Dr Lucia relating to the “guru’s prasad”. Dr A could not recall what this term meant, saying she had been told lots of things during interviews with the claimants which she wrote down, although this couldn’t recall if that was the case with this term. The judge noted that “[t]his was a further attempt to deceive the court… Dr A knew perfectly well that she wrote those words because she lifted them from Dr Lucia’s article, not because they were spoken to her by any of the claimants.”
It also became clear that Dr A was not fully familiar with the contents of her report. Under cross-examination, she initially stated that she did not believe that the claimants were suffering from Religious Trauma Syndrome (‘RTS’), she had just stated that is what some professionals believe. However, when it was pointed out that her report stated that “[t]he damage that [RTS] or spiritual abuse has caused these claimants has been vast and even debilitating”, she acknowledged that her previous reply was wrong.
When asked why she said she couldn’t remember this report, she acknowledged that she had not read it before she came to give evidence, suggesting that this was because she had had problems with her computer and printer. She acknowledged that it was not acceptable for an expert to come to court and attest to the truth of their reports without having reminded themselves of their content.
The origin of Religious Trauma Syndrome is an article by Dr Marlene Winell. Dr Winell is the only academic writer Dr A was aware of who recognises RTS. Dr A had referenced Dr Winell’s article on RTS (although dating it incorrectly), however she did not acknowledge in her report that Dr Winell had a vested interest in identifying RTS as a bona fide symptom as she has a business running weekend retreats and an ongoing recovery group for people recovering from RTS.
Dr A also noted in her report that RTS had been compared to complex PTSD which was untrue as Dr Winell had compared it instead to PTSD but not Complex PTSD.
There were also other instances of inaccuracy or, at worst, misleading passages in Dr A’s report such as a statement that there was evidence in the medical records of one claimant starving herself, when there was no such evidence in the medical records. The judge considered this statement was “a pseudo-endorsement of [the claimant’s] account by reference to medical records which did not exist.”
The evidence of Professor Maden
By contrast to that of Dr A, the judge found Professor Maden to be a careful, considered and truthful witness and he accepted his reports and evidence without hesitation. Where they differed, he preferred Professor Maden’s views to those of Dr A in every respect.
Judge’s conclusion on Dr A’s evidence
The judge concluded that:
“no reliance whatever can be placed on the reports and opinions of Dr A. She demonstrated herself to be an expert who had little or no regard to the provisions of Part 35, the Practice Direction and the Guidance in preparing her reports and who was prepared materially to mislead the court by passing off the views of another person as her own by lifting large passages from that person’s article and setting them out in her report as if they represented her own views without acknowledgement or reference to the originating source. In the circumstances, I consider that I have no choice but to reject Dr A’s evidence in its entirety.”