Analysing the Standards for Expert Evidence through MUYEPA V MOD

Is it obligatory for an expert to have an even spread of instructions from both claimants and defendants in order for their evidence to be acceptable to the court?

I fear that the judgment in MUYEPA V MOD (2022) EWHC 2648 (KB) might well cause confusion.

Mr Justice Cotter was perturbed by the fact that one expert had only ever reported for claimants over a 9 year period. This emerged when asked outright about it by the Judge, no apportionment having been volunteered in her report (para 304). This evidently confirmed the risk of partisanship when ones entire income is derived from a solitary source. The expert had made recommendations to maximise damages; she ought to have made proposals after a balanced and objective application of the relevant principles.

By way of contrast, the defendant expert had volunteered a split of one third claimant/two thirds defendant work. She was found to be balanced and helpful (para 310).

Much has been made of this instruction issue. Here is my take on it. I believe the Judge raised the point out of incredulity at outrageous aspects of the report. In other words, he was perturbed by the lopsided report which effectively backed the claim and the claimant at every turn. It was not balanced.

The Judge itemised a series of dreadful failings by the claimant care expert at paragraph 302.

She proposed the purchase of a £1,100 riser recliner chair despite the absence of a shred of evidence that the claimant had any back problems.

Absurd and ridiculous expenditure was recommended for a double bed, a £10,000 whirlpool bath and a wash/dry toilet for £4,165. Were these items necessary and beneficial? A wish list is not to be supported. It was dim to recommend items that people would have anyway e.g. a dishwasher, car breakdown cover or a microwave. Where were her range of views? Was another view tenable? Credibility goes out of the window when absurdities are advanced.

Early evidence rendered large elements of the care claim hopeless. She had at least a week to recalculate her figures but didn’t. Every expert of whatever discipline should be alert to events as they develop and ought to update figures if necessary.

To answer my opening question, my view shared by an eminent High Court Judge, an expert with a substantial track record of acting for one side who fully discharges their primary duty to help the court has clean hands .Provided they satisfy their duties under CPR 35, PD 35 and the 2014 Civil Justice Guidance on the instruction of experts they have done all that is expected of them.

Those with any litigation experience will know that once you find someone you can trust you stick with them. There are for example barristers (and indeed Chambers) that act primarily for one camp, claimant or defendant.

Let us not forget that the expert is the recipient of instructions. True it is that they are not obliged to take on a matter. They might already be inundated and incapable of coping with a new case. However, if they receive a steady flow of work from one side why ever should they sensibly be expected to repudiate it?

An expert who has been instructed 100 times in succession by one side is above criticism if each one of their reports has been balanced and objective.