This case concerns the duties of an expert witness and, in particular, the duty to disclose any conflicts of interest.
Dr Zuber Bux provided medico-legal reports on holiday sickness claims under insurance policies. He provided them on “an industrial scale“. For example, between 2016-2017 he turned out some 684 reports earning nearly £125,000 at around £180 a time. He was instructed, through an agent, by a firm of solicitors in which his wife happened to be a salaried partner. Furthermore, he paid his fees for the reports into a private company in which his wife held a 45% shareholding. None of these facts were disclosed on his reports even though there were clearly conflicts of interest to declare, and the reports were almost always in favour of the claim. The reports were described as “superficial, unanalytical, devoid of any differential diagnoses, and were invariably supportive of the claim.“
In 2018 the General Medical Council (‘GMC’) began to receive complaints and Dr. Bux’s “report factory” came to their notice. Matters progressed and at a hearing before the Medical Practice Tribunal (‘MPT’), where other failings were also brought to their attention, Dr. Bux was struck off the Medical Register. The MPT had “made findings of fact that the appellant had acted in a state of conflict of interest, dishonestly and for financial gain.“
Those are my principles, and if you don’t like them… well, I have others.”
Groucho Marx
Dr. Bux appealed against this decision to strike him off and the case was heard in the High Court before Mr.Justice Mostyn. The Judge produced a useful review of the authorities relating to the duties of expert witnesses. Above all, an expert witness owes the court a duty of independence and objectivity. An “expert should be independent, unbiased and objective” as set out in the Court Procedural rules and reiterated in the cases of Whitehouse v Jordan [1981] and The Ikarian Reefer [1993]. An obligation to give an unbiased opinion includes an obligation to disclose any actual or potential conflicts of interest.
The court took pains to explain that there were two types of conflict of interest: those where an expert’s opinions were actually influenced, and those where they were capable of being influenced by his personal interests. The first type of conflict involves “considerable moral turpitude“, the second type involves no wrongdoing but must still be declared. The Court made clear that in the second type of conflict, “there is a high duty of candid disclosure imposed on an expert witness who has any degree of belief that he may be under a conflict of interest. He must disclose details of a potential conflict of interest at as early a stage in the proceedings as possible. He must disclose any associations or loyalties which might give rise to conflict. He must disclose any material that is suggestive of a conflict of interests, and will not be pardoned, if he fails to do so, by a later finding that there is no conflict of interest.” Failure to do so “is likely to have very serious consequences” for the expert and their report.
In deciding not to allow the appeal, Mr. Justice Mostyn commented that there was an “urgent” need for the GMC to reform its procedural rules. At the original Tribunal hearing, both sides had called medical expert evidence in support of their contentions concerning Dr. Bux’s duties and obligations as an expert witness. The Judge considered this was not only unnecessary, but irrelevant and inadmissible. The questions to be addressed were “essentially legal and factual not medical or technical…” He was dismayed that there appeared to be a total absence of any procedural rules governing expert evidence. He had made this point in another case, Towuaghantse v GMC[2021] EWHC 681, in which he also adjudicated. In civil proceedings such evidence requires permission which will only be granted if the evidence will “reasonably assist” with the determination of the case. He went on to say “If the court can decide the issue without reasonable assistance from an expert, then it should do so“. The GMC rules do not require permission at all, allowing for an “old-fashioned free-for-all“. This situation needs to be addressed and a more robust and structured approach needs to be adhered to in the future.
Link: Bux v The General Medical Council [2021] EWHC 762 (Admin) (31 March 2021)
Expert Evidence prides itself on assisting throughout the legal process where required and is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.
Ask a question about Expert Witness services. We are here to help!
Disclaimer: The above case summary is derived from publicly available information and is not intended to be anything more than a statement of the author’s views on the salient factors of the case. It is not intended and should not be understood to be legal advice of any sort. All views are solely those of the author and no use of the summary should be made without statements being checked against the source of information. Expert Evidence Limited takes no responsibility for the views expressed. The copyright of the summary is owned by Expert Evidence Limited but may be used with written permission which may be forthcoming on application through the contact us page. This news item is not intended to imply or suggest that Expert Evidence Limited was involved in the case, only that it is considered an interesting legal development.
