Can I be an expert witness & business owner with a view?

This may on the outside seem like a strange question. To give some context the question is in relation to exposing your personal views and commentary on social media such as X, Instagram, Facebook and LinkedIn or even in industry publications. As my primary job is as a business owner of a food law firm I am often asked for a view on a comment, may make a post or comment on others’ views and insights.

So where does this fit in as an expert witness?

As an expert your duty is to the court, and you are expected to provide it with unbiased opinion (CPR Part 35, 2.2). If you are acting as a criminal expert, then there is a greater obligation which obliges all experts to disclose to the party instructing them anything (of which the expert is aware) that might reasonably be thought capable of undermining the expert’s opinion or detracting from their credibility or impartiality (CrimPR 19.2(3)(d)).

As such a social media post, a comment to a journalist can be used by the counsel hiring you or the other side to have you dropped from the case and any report rejected by the court on the basis of bias. Whilst it can be argued that such a weapon (Strategy?) demonstrates weakness by “the other side” as it shows they will do anything to avoid your views or report entering court at all costs. But often in law a win is a win irrespective of the truth. It’s a shame if a report cannot be considered on its own merits but we are not just talking about science, but we are talking about the law, and this results in friction in a modern world.

From the point of view of the company, body or institution that has hired you they will not want to take the risk of you being attacked as being bias in court. Thus, them may take the view to cut you loose although they will likely find your findings and report of value in the case. Consider such issues in your contract when signing up to a case and if you would and should still be paid should such issues arise.

Lessons to consider

The issue is a significant concern pre and during the engagement process especially if you’re not some retiree that has taken up exert witness work as a means of pension top up. If you are active in your field then there will be little doubt at some point you have comments about topics in the public domain.

When briefed as to the topic you have been asked to act as an expert you should consider are any post currently accessible online or upcoming questions (example conference proceedings, in review publications) that may impact your hire as an “independent” and “unbiased” expert.

Should you in reflection take the case once you have considered such issues? If in doubt raise any concerns with your potential employer. Importantly, whilst your linking in profile has been carefully screened have your posts?

Whilst your hiring partner should also do their homework to find any damaging personal or business posts the onus is also on you. Consider you contractual terms, what happens if mid-engagement (you have completed the report but not the court case yet) you make a view that opposing counsel use to have your dropped from the case. Who is liable for the loss of the expert report loss from the case (Of course there is likely significant value in the report even if not used in court) or your attendance to be in court?

To post or not to post that is the question!

As an expert that is still engaged in industry then you may become invisible without a social media presence or voice in the industry. But remember that any commentary where that comment is “opinion” may result in a loss of future hire. This potential loss must be balanced against earning a living.

What I am saying here is think about your “social hygiene”, do you need to comment? What is the benefit? Is your comment one based on fact? Is it opinion? Will it affect current or future cases?

As someone who had to learn this the hard way, I hope this post makes you just take a second to consider how important that response, article commentary may be. For some the constraints over being and unbiased expert vs. having to have an online presence may mean expert work is not for you or at least limited whilst in alternate employment.

Until next time…

Be careful how you choose your experts!

Whilst those holding themselves out as experts may get away with it online, in court when the chips are down this type of folly can result in your losing your case and the expert being held for contempt of court.

One key aspect to consider when hiring your expert is do they understand their duties to the court? Unless trained by a reputable body for experts its likely key aspects of the legal duties imposed on an expert and not fully understood.

These requirements under Part 35 of the Civil Procedure Rules (CPRs) and related Practice Direction (PD) are key to fulfilling the duties of an expert. The biggy is that your report (which includes your CV and perhaps biography) is true and is his/her independent opinion. In this article I am going to set out an example of the most serious of cases in the next few weeks some cases that are more nuanced and where many experts make errors in suggesting expertise that can impact the instructing solicitors case. Why is this of interest?

Well as an expert you may know of and have knowledge of the other sides expert. If on assessment of the bundle you see serious flaws in the other experts report or declaration of expertise, then you may want to raise this with your instructing counsel. In addition, it should educate those readers to be cautious on whom they use to support their case especially in cases straddling food science and food law which is a unique area of expertise.

Custodial sentence in cases of contempt

A statement of truth confirms the signatory to it understands that they honestly believe the facts stated in the document are true. That they make clear which facts/views are their own/others. Also, and importantly it also confirms proceedings for contempt can be brought if they sign the statement dishonestly (See statement of truth below).

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

This amended statement was implemented in 2020 following a very important case involving both counsel and the expert witness. Whilst content is not a criminal offence the result and related issue can be such as perjury or fraud. Even if not a criminal offence it is punishable by a custodial sentence.

The Key practice direction is CPR 32.14(1), which provides:

“Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

In 2019 a Court of appeal case concerning a medical practitioner (Dr Zafar) who was called upon to assess and report on an individual who was claiming compensation for a whiplash injury. Dr Zafar issued a report to the insurer stating there was no continuing evidence of continuing medical problem. The report generated using software helped the Dr produce a report within 15 minutes. The claimant complained to the solicitor that report was inaccurate; so it was requested the report was amended to add in additional symptoms which had not been apparent at the examination. The expert produced a second and materially different second report that made no reference to the 1st and both reports included the declaration of truth.

The bundle of documents for the court proceedings accidentally included both reports for which he was instructed to issue a witness statement, which was incorrect at the 1st attempt and so issued a second version again including statement of truth. As a result the insurers (defendants) in the case commenced proceedings in the High Courts against the expert seeking his committal on the basis the expert made false or reckless statements interfering with the course of justice.

The ruling of the court was 2-fold. The expert was found to have acted dishonestly as did the solicitor given the solicitor had initiated a second report to achieve a better outcome for his client. The High Court sentenced the expert to a custodial sentence of 6 months, suspended for 2 years. The solicitor was sentenced to 15 months’ immediate imprisonment.

In summary, this case should never really of happened as the historic case of the “The Ikarian Reefer” continues to provide an excellent guide for the expert as it relates to their duties and conduct before the courts.

Sources:

Liverpool Victoria Insurance Co Limited v Zafar (2019) EWCA CIV 392

The Ikarian Reefer” [1993] 2 Lloyd’s Rep 455

#foodlaw #expertwitness #DrZafar #CPR #practicedirection #court

English Tribunal Accepts the Term ‘Raw Honey’ Is Not Misleading!

In a case that made the headlines in the UK due to a judge’s reference to fictional characters from the Winnie-the-Pooh series of children’s books, the decision on the use of the term ‘raw’ as it relates to honey has significant implications for this category. The ruling goes against the view held by statutory enforcement bodies and their acceptance of industry guidance prohibiting the use of the term ‘raw’. The case has a number of interpretive effects within the meaning of the UK Honey Regulations and the institutional reluctance to engage with the latest science. What this case was about, how the court came to its decisions and the practical implications for the marketing of honey in the UK are discussed in this article.

Source: https://effl.lexxion.eu/article/EFFL/2024/4/5

Case: https://caselaw.nationalarchives.gov.uk/ukftt/grc/2024/157?query=ukftt