Experts and contingency fees
A blatant breach of the rule that experts should not have a financial interest in the outcome of the cases in which they are instructed led one expert into hot water
There has long been a public policy preventing a person who is in a position to influence the outcome of litigation having an interest in that outcome. Consequently, the Court will not consent to the instruction of an expert under a contingency fee agreement (CFA) save in very rare and unusual circumstances.
In Factortame it was acknowledged that an expert would often be able to influence the outcome of litigation in a way that the funder, or even the lawyer conducting the litigation, would not. Thus, providing evidence on a contingency fee basis could potentially give an otherwise independent expert a significant financial interest in the outcome of the case.
There is often a fine line between what amounts to a champertous arrangement and what does not. Rarely, however, has there been such a blatant example of conduct that clearly crosses this line as that which came before the Medical Practitioners Tribunal in May 2016.
Case before the MPT
The allegations against the expert were that between 2004 and 2008 he prepared medical reports upon instruction for the purposes of personal injury claims and that during the course of this he:
- entered into CFAs with those instructing him, whereby he agreed not to be paid for his work if his report did not result in a settlement for the claimant
- had a financial interest in the outcome of the cases for which he prepared reports
- failed to disclose to the settling insurers or settling solicitors the fact that he had entered into a CFA
- failed to act in accordance with his professional obligations as an expert witness
- entered into an agreement by which he lost his independence as an expert witness, and
- entered into arrangements which had the potential to undermine the good repute of medical expert witnesses.
The matters alleged were numerous and included the case of a motorist (CA) who had claimed on his insurance for damage to his car, having been involved in an accident on the M25 in 2006. CA said that, although he had never met nor been examined by the expert, two medical reports had been written without his knowledge in 2008. He claimed that these reports had been prepared in connection with a personal injury claim made in his name but about which he had been completely unaware until he received a cheque in 2011.
CA reported the matter to the police, the Solicitors Regulation Authority and the Ministry of Justice. The expert admitted writing the medical reports but claimed he did so honestly. He said he had examined a patient he believed to be CA and had filed a report based on what he was told.
Expert accepted CFA terms
At the outset of the proceedings, the expert admitted via his counsel that he had entered into CFAs and that, in relation to these arrangements, he had agreed not to be paid for his work if his report failed to result in a settlement for the claimant. He further admitted that he had produced two separate reports that differed from each other in relation to their content. Consequently, the tribunal found that the allegations were proved in relation to those matters.
The tribunal ruled that the allegations that the expert had prepared separate reports to maximise liability and had provided a conclusion in relation to apportionment without clinical justification were not proved. However, the allegations that he had, at the request of those instructing him, altered his conclusion in relation to apportionment as expressed in one of the reports and had been complicit in an attempt to mislead and possibly defraud two insurance companies, were held to be proved.
With regard to the CFAs, the expert told the tribunal that it was his belief that he did not need to inform the settling solicitors or insurers of the basis on which he had been instructed. He said that this belief was based on having read other doctors’ medico-legal reports. He said he had not been instructed by his solicitors to include this information in his reports, nor had he received formal training or guidance on preparing the reports.
The tribunal considered that the settling solicitors and insurers would have found it of vital interest to know the financial basis on which the expert had been instructed: he had a financial interest in the claim, and that could have affected his independence and thus would have affected the weight placed on the opinion. The expert accepted this view and admitted to the relevant paragraphs of the allegation, which were found proved.
With regard to the changing of the report in the way he had, the tribunal found that the expert had known what he was doing when he made the changes and had therefore acted dishonestly.
Bringing the profession into disrepute
The tribunal concluded that the expert’s conduct had brought the profession into disrepute. He’d acted as an expert witness when his independence had been compromised, both by accepting instructions under a CFA and by the nature of his relationship with the solicitors. It determined that his fitness to practise was impaired by reason of his misconduct and suspended the expert’s registration for 6 months.
The tribunal noted that there was a wider context to what had been occurring at the law firms than was the subject of the allegation before it. Nevertheless, the tribunal considered that there was clearly something ‘fishy’ going on in the expert’s arrangements with his instructing solicitors at the time. Solicitors, of course, together with medical reporting organisations, are not subject to the same constraints as expert witnesses. Unlike experts, they are permitted to enter into CFAs... indeed, they are encouraged to do so. Thus their interests are not necessarily the same as those of the expert. Experts should be vigilant in their dealings with solicitors, and resist any inducements that might be offered to stray from their overriding duty to the court.