Legal Remedies for the Negligent Expert
| DOI | 10.1350/ijep.2008.12.2.93 |
| Date | 01 April 2008 |
| Published date | 01 April 2008 |
| Subject Matter | Article |
LEGAL REMEDIES FOR THE NEGLIGENT EXPERT
Legal remedies for the
negligent expert
By Déirdre Dwyer*
British Academy Postdoctoral Fellow, Pembroke College, Oxford
Abstract How should the legal system respond when someone who has provided
evidence in their capacity as an expert is perceived to have done so negligently?
The question is considered in the context of both civil and criminal litigation in
England and Wales. The Sally Clark litigation is used here as the main exemplar.
Possible remedies are evaluated both as a means of penalising past negligence,
and of preventing future negligence.
Keywords Civil Procedure Rules; Civil evidence; Expert evidence; Opinion
evidence; Case management
The Panel has noted with care the argument put forward on your
behalf that others within the court system did not question your
erroneous application of statistics in the police statement, Magis-
trates’ and Crown Courts. You, however, were the expert witness, you
provided the statistics, spoke to them with authority, and it was your
expert evidence which was relied upon by the other parties to the
Court proceedings.1
ike a Greek tragedy, the consequences of the trial of Sally Clark continue
relentlessly to unfold.2This case, combined with those of Angela
Cannings and Trupti Patel,3has generated an extraordinary volume of
comment in medical, legal and statistical journals, in newspapers, and in Hansard.
DOI:1350/ijep.2008.12.2.290
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2008) 12 E&P 93–115 93
L
1Professor Sir Samuel Roy Meadow, Fitness to Practise Panel of the General Medical Council, London, 15
July 2005 (‘Meadow (GMC)’), quoted in GMC vMeadow with HM Attorney General [2006] EWCA Civ 1390
at [276] (‘Meadow (CA)’).
2RvSally Clark, Chester Crown Court, 9 November 1999. The truth of this sentence was tragically
reinforced after it was written by Clark’s unexpected death on 16 March 2007. For a popular
account of the case, written by a friend of Clark’s father, see J. Batt, Stolen Innocence: A Mother’s Fight
for Justice: The Story of Sally Clark (Ebury Press: London, 2004).
3RvAngela Cannings [2004] EWCA Crim 1; RvTrupti Patel, Reading Crown Court, 11 June 2003.
* Email: Deirdre.Dwyer@law.ox.ac.uk.
Successful appeals in these cases have resulted in the review of a further 297
criminal convictions,4and hundreds of Family Court care decisions.5When the
Court of Appeal acknowledged in 2003 that Clark’s conviction for the murder of
her two babies was unsafe,6the case became instead, in the public imagination,
one of a grieving mother being imprisoned precisely because of her bereavement
rather than consoled, as the result of the negligence of two experts instructed by
the Crown. Clark, along with Cannings and Patel, have raised emotions and interest
because the subject-matter speaks of, and to, the human condition. The cases
highlight starkly how dependent the criminal justice system has become on the
integrity and skill of expert witnesses in many types of case, and how vulnerable
both defendants and the system itself are to the dangers of evidence given by
experts who lack either of those qualities of integrity and skill. That vulnerability
should concern us at an intellectual level, but it also affects us at an emotional
level, as people who might find ourselves one day subject to inexpert expertise. For
a number of reasons, public outrage was greater against Professor Sir Roy
Meadow, whose testimony at trial may have contributed to the miscarriage of
justice,7than it was against Dr Williams, who negligently withheld crucial
medical evidence that certainly did result in the miscarriage.8In part, this was
because Meadow was by far the more eminent expert, and had been involved in a
large number of Family Court cases.
The decisions of the Court of Appeal in Sally Clark and Meadow are discussed
elsewhere.9This article is concerned with one of the major policy issues raised by
the Clark litigation: how should the legal system respond when someone who has
provided evidence in their capacity as an expert10 is perceived to have done so
negligently? The Clark litigation is used here as the main exemplar, not because
the negligence of Dr Williams or Professor Meadow was particularly heinous, but
rather because the case is well known.
I begin by seeking to define the extent of an expert’s duties, at common law and
under Part 35 of the Civil Procedure Rules 1998 (hereafter ‘CPR’) and Part 33 of the
94 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
LEGAL REMEDIES FOR THE NEGLIGENT EXPERT
4 Lord Goldsmith A-G, Hansard HL 1658, 21 December 2004.
5 BBC News, ‘Review of Children in Care Cases’, 23 February 2004, available at
http://news.bbc.co.uk/1/hi/uk_politics/3514345.stm, accessed 6 February 2008.
6RvClark [2000] EWCA Crim 54 (‘Clark (CA, No. 1)’); RvClark (No. 2) [2003] EWCA Crim 1020 (‘Clark (CA,
No. 2)’).
7Meadow (GMC); Meadow vGMC [2006] EWHC 146 (‘Meadow HC’); Meadow (CA).
8Dr Alan Roy Williams, GMC Fitness to Practise Panel, 3 June 2005.
9 D. Dwyer, ‘The Duties of an Expert Witness of Fact and Opinion: R. v Sally Clark’ (2003) 7 E & P 264;
L. Murray, ‘Experts Lose Immunity’ (2006) 156 (7253) NLJ 1902.
10 Civil Procedure Rules 1998 (SI 1998 No. 3132), r. 35.2; Criminal Procedure Rules 2005 (SI 2005 No.
384), r. 33.1.
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