Lessons Learned from Muyepa -V- Ministry of Defence

In Muyepa -V- Ministry of Defence (2022) EWHC 2648 (KB), Mr Justice Cotter was highly critical of the claimant’s care and occupational therapy experts’ approach to the issue of care aids and appliances and a number of other heads of claim. He was also highly critical of the employment experts’ approach. This case represents a watershed case for expert witnesses in all fields, raising as it does a number of issues for which expert witnesses will, consequently, have their reports and their medico-legal practice scrutinised like never before, and even perhaps thrown out, against the background of this case. The purpose of this article is to discuss what went wrong for the experts in the Muyepa case and to consider the implications for Expert Witness Practice – and there are many!

Background

Mr Muyepa was an ex-soldier who made a claim against the Ministry of Defence for personal injury and consequential losses as a result of the Defendant’s alleged breaches of statutory duty and common law duty of care, which resulted in him suffering from a Non-Freezing Cold Injury (NFCI) to his hands and feet. It was his case that the ongoing symptoms of the NFCI had left him severely disabled. The case was heard in the Royal Courts of Justice over a number of dates in June and July 2022. Ultimately the judge concluded that on the balance of probabilities that Claimant had been fundamentally dishonest, and the claim was dismissed. Had the claim not been dismissed the claimant would have been entitled to damages in the sum of £97,595.33.

Implications for Expert Witnesses

I have not named the experts heavily criticised by judge in this case, but in Justice Cotter’s words he doubted the experts: “would be anxious to relive their experience of giving evidence” but that he had:” limited sympathy for either in this regard”. It is unknown as yet whether the experts will be subject to negligence proceedings, but it is in all likelihood very damaging if not the end of their expert witness careers. So where did the experts go so terribly wrong?

1. The claimant is entitled to damages that meet his reasonable need- and will not recover damages if the cost is disproportionate to the benefit. However, the OT expert a) provided neither an adequate assessment or analysis based on sound clinical reasoning /justification for the recommendations made and b) failed to give any credit for costs that the claimant would have incurred in any event. The judge identified numerous examples of these failures, and it is clear that the experts credibility had fallen away in the witness box given that she had conceded herself that a recommendation in her own report was “ridiculous” and as such was forced to make sizeable concessions.
2. The Civil Procedure Rules require that an expert consider all material facts, including those which might detract from their opinions, and also deal with any range of opinions. The reports must also represent an experts true and complete professional opinions. Not only did the OT fail to address any range of opinions, if the court were of the view that the Claimant was consciously exaggerating; when faced with surveillance and social media evidence that clearly or potentially should have changed her opinions, she appeared to dismiss the evidence and said the evidence did not lead her to alter her opinions. The employment expert received the same criticism, ignoring evidence that was not favourable to the claimants case and indeed even “straining to find an explanation” that was supportive of the Claimants witness statement.
3. The OT expert could not demonstrate a balanced portfolio of Claimant and Defendant Instructions. The judge concluded that as a consequence of providing reports for only Claimants: “the reports she prepared contained some partisan views, designed to maximise damages for the Claimant, rather than being based on the balanced and objective application of the relevant principles”.

Implications for Expert Witness Practice

1. Re-read the Civil Procedure Rules (or other relevant procedure rules), Practice Direction and Guidance.
2. Re-acquaint yourself with the relevant legal principles and tests.
3. Use the declaration as a report compliance checklist before you submit your report.
4. Ensure all recommendations are underpinned by logical, robust justification.
5. Ensure you have given credit for any costs, items or services incurred or needed in any event.
6. Ensure you always provide a tenable range of opinion where they exist.
7. Be prepared to change your opinion, should the evidence necessitate it.
8. Reflect on your Instruction Portfolio – could you too be considered to have lost objectivity and independence because you primarily take instructions from claimant or defendants and do not have a balanced portfolio?

Conclusion

Experts witnesses are instructed to provide objective and non-biased evidence, such that significant reliance will be placed upon the opinions they give.  As such we also owe a duty to exercise reasonable skill and care to those instructing us and must comply with the relevant procedure rules. We are not there to maximise or minimise a claim as a part of the claimants or defendants “team” and must ultimately remember our overriding duty is to the Court. Put simply, no expert would ever want to be in the position of the experts in this case!

Jessica Thurston, Head of Medico-legal Operations & Care and Occupational Therapy Expert