Case Updates

The judge preferred the evidence of the Defendant’s expert because of the Claimant’s expert’s approach to his task as expert, his confusion over the proper approach to what prior art was and was not in the common general knowledge, the number of assertions he made which he was forced to resile from as incorrect, and his failure to acknowledge a key fact.

The issue in this judicial review did not turn on the expert evidence but the case illustrates the role of a medical reporting organisation (MRO) in a particular civil case and there are some general learning points.

Of note, the MRO did not arrange the correction of an erroneous date, it did not recognise how the evidence set out by the expert was seemingly insufficiently referenced and it did not recognise that there would be questions as to how some of the expert’s conclusions were reached.

Ivory, R (On the Application Of) v Welwyn Hatfield Borough Council [2025] EWCA Civ 21

The judge found that the forensic accounting expert’s approach of forming an opinion as to the value of the Company, then carrying out a detailed calculation and only if it matches his initial opinion accepting it, undermined the credibility and reliability of his opinion as to the value of the Company.

This is a case which will assume much greater importance for the 15 points of practice and practical steps that the judge decided can help reduce the risk of well-meaning professionals falling into pitfalls that hinder the identification of safeguarding issues at an early stage than as a case with learning points for experts.

For some of the experts in the fields from which jointly appointed experts were instructed, it illustrates how their evidence is tested and applied in a case of suspected fabricated or induced illness (FII).

Re N (Children: Fact Finding - Perplexing Presentation/Fabricated or Induced Illness) [2024] EWFC 326

Any uncertainty as to whether a psychiatrist can provide an expert report as a paper-based assessment is answered by this case.

In this case the paper-based assessment was sufficient for the court to conclude that, having regard to the Mental Capacity Act 2005, s 48, there were "reasons to believe that the Appellant lacks capacity". However, the fact that the court did not make a finding of a lack of capacity and transferred the case to a Tier 3 (High Court) Judge of the Court of Protection in order to determine the matter of capacity indicates how the court recognises how much more difficult it is to make a finding when the report relies on a paper-based assessment compared to a consultation with the subject of the report.   

MacPherson v Sunderland City Council (Rev1) [2024] EWCA Civ 1579 

In considering whether the claimant should be required to provide a breakdown of expert and medical agency fees, the judge decided to offer the claimant the option of either providing the breakdown of expert and medical reporting organisation fees, to enable an assessment of work of both the expert and the MRO, or not providing that information and having the expert fees assessed on the hypothetical basis that there was no medical reporting organisation involved.

Although this is a dental/maxillofacial negligence case, it is of importance for all healthcare experts instructed in cases where consent may be an issue. It highlights points about which experts should enquire when there may be an issue as to consent to a surgical or other procedure. In this case it was found that the consent process was deficient in a number of respects. It is also a case which illustrates how expert evidence can separately assist the court on the issues of breach of duty, causation, condition and prognosis.

Winterbotham v Shahrak (Rev1) [2024] EWHC 2633 (KB) 

For surveyor experts, this case illustrates some very basic errors and it may therefore also be a useful case for expert surveyor witness training.   

McBride v McGuigan & Anor [2024] NIMaster 20 

The Claimant alleged that the Defendant acted negligently in obtaining her consent for laser eye surgery including failing to adequately investigate her ophthalmic condition prior to the surgery.

The defendant made an application for adjournment on the proposition that it could not be ready for trial because its experts required additional time to complete their reports. However, it was unable to demonstrate that it would be unfair to proceed with the existing trial.