Toth v Jarman

A conflict of interest does not automatically disqualify an expert witness. The decisive question is whether the expert’s opinion is independent. A material or significant conflict will commonly lead the court to refuse permission for the evidence or decline to rely upon it.

An expert should disclose any potentially material conflict when the report is served, or promptly after the conflict arises. The expert’s curriculum vitae should identify employment or activities capable of creating such a conflict. The court, rather than the parties, determines materiality.

Fresh evidence on appeal must satisfy the established criteria concerning reasonable diligence and likely influence on the result. A court may exceptionally recall an appeal before judgment for further argument following an unforeseen development or serious oversight, but dissatisfaction with counsel’s forensic choices does not ordinarily suffice.

The claimant sought damages for psychiatric injury allegedly caused by a doctor’s negligent failure to administer intravenous glucose to the claimant’s five-year-old son during a hypoglycaemic attack. The Deputy High Court Judge found the doctor negligent but held that the claimant had not proved that intravenous glucose would probably have prevented the child’s death. The judge preferred the evidence of the defendant’s paediatric expert.

The claimant appealed on causation and sought to introduce evidence concerning the expert’s qualifications and his connections with the Medical Defence Union. He alleged an undisclosed conflict arising from the expert’s former membership of its Cases Committee. After the appeal hearing, the claimant also applied to reopen the proceedings because of alleged deficiencies in counsel’s presentation.

The central questions were whether the causation finding disclosed reversible error, whether the fresh evidence should be admitted, whether the expert’s undisclosed connection required the judgment to be set aside, and whether the appeal should be reopened.

1. Appeal and applications dismissed. The trial judge was entitled to prefer the paediatric expert’s evidence. His reasoning on causation was logically structured and supported by evidence. The claimant had not proved that intravenous glucose administered when the doctor arrived would probably have saved the child. The judge’s unsupported metaphor about the brain obtaining a needed substance was immaterial to that conclusion.

2. The proposed evidence concerning the expert’s qualifications failed the principles in Ladd v Marshall [1954] 1 WLR 1489. Reasonable inquiry before trial could have obtained the expert’s curriculum vitae and publication history. The additional material would not have had an important influence on the result because it neither materially undermined his relevant paediatric experience nor demonstrated a lack of candour.

3. A conflict of interest does not automatically disqualify an expert. The key question is whether the opinion is independent. A material or significant conflict will commonly cause the court to refuse permission for, or decline to act upon, the evidence. The expert’s overriding duty under rule 35.3 of the Civil Procedure Rules 1998 is to assist the court objectively on matters within the expert’s expertise.

4. The expert’s membership of the Medical Defence Union’s Cases Committee should have been disclosed when his report was served. Nevertheless, he had left that committee before trial, its practice excluded an expert from deliberations on the expert’s own case, and the Council did not consider individual cases. Any earlier conflict had therefore become immaterial. The non-disclosure neither disqualified him nor placed the claimant at an unfair disadvantage.

5. For future cases, an expert should provide a curriculum vitae identifying employment or activity capable of creating a potential conflict. A party wishing to rely on such an expert should disclose any conflict which is not obviously immaterial at the earliest opportunity. Materiality is for the court, not the parties. The court recommended declarations addressing existing conflicts, their effect on suitability, and later changes in circumstances.

6. Article 6 of the European Convention on Human Rights requires an independent and impartial tribunal. It does not subject a party’s expert witness to the same independence test as a judge.

7. The court may exceptionally recall an appeal before judgment for further argument following an unforeseen development or serious oversight. The allegations concerning counsel did not meet that standard. Counsel retained professional judgment about which points to emphasise, argue briefly or omit, and all relevant matters had been placed before the court.

1. Court of Appeal (Civil Division): The appeal against the causation finding was dismissed. The applications to adduce fresh evidence and to reopen the appeal were also dismissed: [2006] EWCA Civ 1028.

2. Queen’s Bench Division, Oxford District Registry: His Honour Judge Charles Harris QC, sitting as a Deputy High Court Judge, found the defendant negligent but dismissed the claim because causation had not been proved. No neutral or report citation is stated in the judgment.