by Alec Samuels
An expert has been sent to prison for giving false evidenceto the court. The case offers a salutary lessonLiverpool Victoria Insurance Co Ltd v Zafar [2019]EWCA Civ 392.
The claimant was involved in a motor accident. His solicitor instructed the expert to prepare a report on the injuries. The expert saw the claimant briefly, and made a written report. The injuries were said to be minor. The claimant and the solicitor were dissatisfied,the expert was asked to alter the report, to magnifythe injuries. The expert got a member of his staffto produce a second report, in which the injurieswere indeed said to be much more serious. Only thesecond report was disclosed to the defendants, nomention was made of the first report.
As every expert knows, he must comply with the Civil Procedure Rules part 35, and his report must contain a statement of truth. As every expert knows, his overriding duty is to the court. He must be honest,careful, objective, impartial, independent, transparent.To put it another way, every expert knows that he must not be dishonest, or corrupt, or false, or reckless,or misleading, or in breach of trust, or motivatedby personal or financial gain.
The ultimate decision in the case will be taken by the judge (or the jury if there is one) but the evidence of the expert can be critical, virtually decisive, e.g. an engineer in a construction case, or a doctor in a personal injuries case. A false report can undermine justice.2
If a genuine error emerges then the expert should immediately rectify that error, but give a full explanation,and ensure that everybody involved is promptly informed. However, as a general working principle the expert should refuse to alter or amend or change his report, his honest and careful report.
The consequences of a dishonest or reckless reportcan be grievous for the expert. Not only will he suffer shame and ruin to his professional reputation and practice, but he will almost certainly receive a prison sentence, which will not be suspended. Persisting in dishonest or reckless behaviour, or giving a false explanation,or seeking to blame a third party, will be aggravating factors.
That statement of truth must indeed be true!
