The Impact of Fundamental Dishonesty Findings on Expert Witness Evidence

The Intersection of Clinical Evidence and Credibility

In personal injury and clinical negligence litigation, a finding of fundamental dishonesty under Section 57 of the Criminal Justice and Courts Act 2015 can carry profound implications for the trajectory of a claim. For the expert witness, whose primary duty to the court is governed by CPR Part 35, such a finding necessitates a re-evaluation of the medical basis of the claim and the integrity of the factual history provided.

The clinical expert’s function is to provide an objective opinion on breach of duty and causation. Where a claimant is found to have been fundamentally dishonest, the reliability of the factual history—the cornerstone of the clinical analysis—may be challenged. This is particularly relevant in cases involving subjective symptoms, such as chronic pain or psychological sequelae, where the expert relies on the patient’s self-reporting. Effective clinical assessments of injury claims demonstrate that, while diagnostic criteria provide a framework, the accuracy of the clinical picture is linked to the reliability of the history. If an expert is alerted to inconsistencies through new disclosure, they should seek direction from the court under CPR 35.14, rather than attempting to reconcile discrepancies in isolation.

Procedural Requirements under CPR Part 35

The expert’s obligation to maintain neutrality is fundamental. If a claimant’s evidence is challenged by a finding of fundamental dishonesty, the expert’s report may be scrutinised regarding its continued utility to the court under CPR 35.1. Practitioners should note the following provisions:

• CPR 35.3 imposes an overriding duty to the court, which takes precedence over any duty to the instructing party.
• CPR 35.10 sets out the requirement for experts to state the substance of all material instructions, which may become a point of scrutiny if those instructions are revealed to be based on dishonest assertions.
• CPR 35.12 allows for discussions between experts to identify areas of agreement and disagreement. If one expert’s evidence is undermined by a finding of fundamental dishonesty, the joint statement process may become unbalanced, potentially leading the court to consider the appointment of a new expert.

Instructing solicitors should ensure that experts are provided with all relevant disclosure, including surveillance or conflicting medical records, at the earliest opportunity. Providing a comprehensive set of records is critical to ensuring the expert does not rely on a premise subsequently proven to be dishonest.

Expert Selection and Multi-Disciplinary Coordination

Cases involving disputed facts often require an overlap of specialties, such as orthopaedics, neuro-rehabilitation, and psychiatry. Where the claimant’s veracity is in question, the medico-legal risk increases if experts work in isolation. A multi-disciplinary environment allows for the cross-referencing of objective clinical data—such as surgical findings, neuro-imaging, or electrophysiological studies—to verify the internal consistency of the claim.

When an expert is asked to provide a critique or rebuttal of another party’s expert evidence, they must operate within the bounds of their subspecialty competence. Expert evidence that fails to anchor itself in objective clinical findings is more likely to be challenged if the underlying history is brought into question.

Practical Considerations for Legal Practitioners

For solicitors, managing expert evidence where dishonesty is alleged requires a disciplined approach to instruction:

• Record Disclosure: Ensure the expert has access to all clinical records from the outset to avoid reliance on an incomplete or filtered history.
• Clear Instructions: When requesting an addendum or a critique of opposing evidence, frame questions to focus on specific subspecialty expertise rather than general observations on the claimant’s character.
• SJE Instructions: Where the court directs the appointment of a Single Joint Expert under CPR 35.7, ensure that instructions provided under CPR 35.8 are precise and designed to elicit clinical clarification rather than speculation.

The strength of a medico-legal case often rests on the consultant’s ability to distinguish between verified clinical pathology and the subjective narrative provided by the patient. By engaging appropriate subspecialists, instructing teams can ensure that the clinical evidence is sufficiently robust to withstand the scrutiny that accompanies allegations of fundamental dishonesty.