Benefit Of The Doubt? Update On Experts' Duties And Witness Credibility

• Published date: 22 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Gatehouse Chambers
• Author: Ms Charlotte Wilk

In Radia v Marks [2022] EWHC 145 (QB) the High Court has clarified that an expert's scope of duty does not involve a duty to protect a party from the risks of an adverse credibility finding.

Background and facts

The Claimant worked for a global investing firm (Jeffries) between 2006 and 2017 as a research analyst in the equity market. On 19 November 2009 he was diagnosed with Acute Myeloid Leukaemia ('AML') after which he underwent four cycles of chemotherapy. He returned to work on a phased basis in June 2010.

In 2015 Claimant commenced proceedings in the Employment Tribunal alleging disability discrimination during his phased return to work (the disability in question being AML). In a Judgment handed down on 3 February 2017, the Claim was dismissed. The Tribunal found that the Claimant had not told the truth, but also that he had intentionally misled the Tribunal. The Claimant was found to have been dishonest about information concerning his weight following chemotherapy and concerning a holiday in Mexico in May 2011 which he claimed he had been forced to miss. The dismissal of the Claim was swiftly followed by an application from Jeffries for its costs.

In terms of the proceedings at hand, the Claimant commenced a civil action for damages in May 2018 against the Defendant, a consultant in haematology and stem cell transplantation at Bristol University Hospitals NHS Foundation Trust. He was instructed in the liability hearing as a single joint expert to report upon the effects of AML and the effects of the treatment upon the Claimant's condition as well as his mental and physical fatigue levels during his phased return to work. The Defendant had made a handwritten note on weight loss stating '95kg > 50kg white hair, looked 60 years. Not depressed', and this note informed the conclusions in his medical report that the Claimant had lost 50% of his body weight after treatment and therefore the Claimant was suffering from fatigue associated with the chemotherapy.

The Claimant alleged that the Defendant was in breach of duty (in tort and contract) in misreporting the account he had given the Defendant at a consultation in 2016 concerning his chemotherapy-related weight loss, and then compounded that error by not undertaking a competent review of the medical records. There was a discrepancy between the Claimant's weight as recorded by the Defendant in his report and that recorded in the medical records, and this inconsistency was explored in the liability...