Court of Appeal’s “stark reminder” on instructing experts
In light of my recent blogs – “Top Ten Tips for Expert Meetings” and “Top Ten Tips for Experts in Joint Meetings – comes the case of R v Pabon  EWCA Crim 420 – a criminal case but a useful warning to anyone instructing experts in litigation.
The case concerned the successful prosecution by the Serious Fraud Office of a number of employees of Barclays Bank for conspiracy to defraud by dishonestly rigging the LIBOR interbank interest rate by making false submissions to manipulate the rate to increase their profits.
The convicted defendants sought to appeal their conviction on the basis of criticisms of the conduct of the expert Mr Rowe called by the prosecution to explain the workings of an investment bank and financial instruments involved in the case.
The Court described Mr Rowe as running a company providing expert consulting and testimony in banking case from which he had earned over £400,000 in fees for giving evidence on behalf of the prosecution in this and two earlier LIBOR trials.
At a later retrial for some co-defendants the Court described a number of deficiencies in Mr Rowe’s evidence at the earlier trial as becoming apparent.
As a result the Court of Appeal concluded that the expert Mr Rowe in the original trial –
- Had failed to comply with his basic duties as an expert;
- Had signed declarations of truth and understanding his disclosure duties, knowing that he had failed to comply with these obligations alternatively, at best, recklessly;
- Had obscured the role of a colleague in preparing part of his report;
- Had strayed into areas beyond his expertise or, most charitably, at the outer edge of his expertise;
- Had flouted the Judge’s express direction not to speak to anyone about his evidence when the case adjourned overnight when he had not finished giving oral evidence – within an hour of the direction being given by the Judge he had contacted a colleague for assistance with his evidence.
The Defendants’ appeal of conviction failed because, notwithstanding its conclusions on the evidence of Mr Rowe, the Court of Appeal still considered that the conviction was safe.
The Court of Appeal warned that “this case stands as a stark reminder of the need for those instructing expert witnesses to satisfy themselves as to the witness’ expertise and to engage (difficult thought it sometimes may be) an expert of suitable calibre.”
So what should we take away from this as clin neg and PI lawyers ?
Perhaps the following –
- This case is yet another reminder, if one were needed, of the standard of some experts in Court work;
- It may seem obvious, but experts need to be expert in the precise area in issue in the case. I once had an expert concede in cross examination that he did not operate at the precise level of the spine which was the subject of the claim, something he had not thought necessary ever to advise us. We lost.
- Experts also need to be expert in giving evidence in Court proceedings – in their reports and in the witness box. This is not instinctive. To do this they need to be trained.
Dr Simon Fox QC