Most professionals who act as expert witnesses are potentially subject to fitness to practice or other types of regulatory or professional body investigations. This can be extremely stressful and challenging even when the complaint appears to be vexatious or lacking in substance. In fact, in some cases, the complaint may even be a tactic by a Litigant in Person (‘LIP’) to upset the expert and make them more amenable to the LIP’s view in proceedings.
So, we thought it would be helpful to offer a brief reminder of what you should do in such circumstances to ensure you meet your duties as an expert witness.
Contact your professional indemnity insurer
Your first step should be to notify your professional indemnity insurer. Regulatory complaints should be covered under professional indemnity policies. Insurers are experienced in managing these situations and will provide legal advice or appoint solicitors to assist with responses to the regulator. Early notification is important as most policies require this and because the insurer can provide support throughout the investigation process.
Inform your instructing solicitor
As soon as you are formally notified that you are being investigated, you should inform your instructing party. The allegations may overlap with matters that could potentially be explored in court, so it is important that the legal team is aware that a regulatory complaint has been made.
You should call your instructing party first to discuss the complaint, then follow up in writing with details about:
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The organisation conducting the investigation and the grounds for the investigation,
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Links to any publicly available information about the investigation on the organisation’s website,
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Any interim findings or restrictions that have been placed on your work, both professionally and as an expert,
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Brief details of the expected process and timeframes.
Be careful to anonymise any information you provide and keep the instructing party informed of any substantive changes to the status of the investigation.
Inform the court
If you are due to give oral evidence within the likely timeframe of the investigation, you should also inform the court of the complaint, on the basis that it may be relevant to the court’s assessment of the weight of your evidence. You should check the relevant procedure rules to ensure you follow the correct channel of reporting.
Preserve contemporaneous materials
You should ensure that all contemporaneous materials are preserved (which you should be doing as standard anyway). This would include interview notes, assessment records, drafts of the report and any correspondence relating to the assessment and report preparation, as well as the complaint.
Responding to the regulator
When responding to the regulator it is generally advisable to keep the response factual and focused on the process rather than argument. However, the insurer will usually appoint a solicitor who can guide you through the process and assist with drafting or managing any correspondence with the regulator.
Relevance of comments from the court for the regulatory process
Comments from the court on the reliability of the expert evidence may sometimes be relevant to the regulatory process. However, the two processes are distinct in important ways. Courts determine the weight to be placed on expert evidence within the litigation, whereas regulators consider whether a registrant’s conduct meets the standards of their profession. It is therefore possible for a court to accept or rely upon an expert’s evidence, while a regulator may still consider whether there are professional issues arising from the way the work was undertaken.
Notification of the investigation’s outcome
Once the investigation is completed, you should immediately inform your professional indemnity insurer, your instructing party and, if required, the court, about the outcome including:
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A summary of the findings of the investigation,
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Links to any publicly available information about the findings,
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Any temporary or permanent restrictions that have been placed on your work, both professionally and as an expert.