Expert Witness: Grounds for anonymity

Related Sector: Expert Witness

In our latest Expert Witness Survey (2022) (the report will be published on 4 November 2022) we asked experts whether they would accept instructions in highly sensitive and/or contentious cases. One of the most common responses to this question was the suggestion of anonymity orders, as a means of minimising risk and allaying concerns.

Whilst expert witnesses have no automatic right to anonymity in court judgments, the court has the power to make an anonymity order if the circumstances of the specific case allow.

But this begs the question,

On what grounds will a court grant an anonymity order to an expert witness?

The recent Family Court case of Hertfordshire County Council v Mother & Ors [2022] EWFC 107 provides some useful guidance on this issue, as whilst two medical expert witnesses applied for anonymity in the published court judgment of a highly sensitive case, only one was successful.

Let’s explore this case in more detail.

Background

This case relates to a fact-finding hearing, on an application by Hertfordshire County Council for care orders in respect of two siblings, after one of the siblings, a relatively new-born child sustained significant and life-threatening injuries.

Following the issue of proceedings on 27 July 2021, the court gave permission to the Guardian of the siblings to obtain a paediatric radiology report from Professor AM, a consultant paediatric radiologist on a single joint basis with the Guardian’s solicitor taking the lead.

Subsequently on 26 October 2021, the court refused an application by Hertfordshire CC to obtain an addendum assessment by DR N but gave them permission to obtain a neuroradiological report from Professor Sellar, a consultant paediatric neuroradiologist on a single joint basis with the Guardian’s solicitor taking the lead.

The matter was then listed for a 5-day hearing on the 21 March 2022, and Professor AM and Professor Sellar were noted as the expert witnesses required for this hearing.

Critique of experts

The court decision on the fact-finding hearing made criticisms of both Professor AM and Professor Sellar’s conduct as expert witnesses.

While the comments on Professor AM were limited to the fact that she did not identify relevant literature when providing her reports and her lack of preparation for the case, the criticism of Professor Sellar, was particularly severe.

Three of the parties to the dispute (the local authority, the Father and the Mother) all sought findings against Professor Sellar for a number of reasons, including:

• His failure to consider all the evidence that was available to him.
• His inability to reach an independent opinion on the cause of the injuries – relying too heavily on the summaries/views/opinions of others without verifying these summaries/views/opinions against the primary source.
• His misquoting and misrepresenting of the research and evidence of other experts.
• His inability to take instructions and ask for documents that he was unable to access.
• The fact that he came to the case with a preconceived opinion/bias which he was unreasonably reluctant to revise, even in the face of clear evidence. 

The Mother argued that the decision should be published with the names of Professor AM and Professor Sellar, due to the significant public interest. The Father agreed but compared Professor AM’s response to cross-examination (considering further documentation and facing up to and accepting matters) to Professor Sellar’s, who sought to continue to justify his opinion and mislead the court.

Before deciding on this point, the court concluded that both experts should be given the opportunity to be heard on the issue.

Submissions

Professor Sellar and Professor AM made submissions to the court for anonymisation of their names in the published decision of the case.

They were given time to ‘’respond to the court and parties with their written submissions on the issue of publication of the judgment with their names to be included, rather than anonymised, or request an oral hearing on the issue if sought.’’

Written submissions were provided upon behalf of both medical experts by their respective legal teams.

Neither expert sought an oral hearing.

Professor AM

Professor AM’s counsel set out her professional experience and stated that the court decision did not make any negative findings relating to her conduct. She accepted that the court would need to balance her arguments with the interests of open justice, and proposed three options:

1. Anonymisation
2. Minor amendments to the wording, which may be pejorative, and an omission of the findings sought against her.
3. If publicly criticised, an entitlement to respond publicly should she choose and therefore to be released from her duty of confidentiality.

Professor Sellar

Professor Sellar’s counsel referred to various cases, including Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam), which stated that:

‘’In accordance with Re S there should be no default position, or requirement for ‘compelling reasons’ [for anonymity]. Any such application should turn on its own facts, including the overall context as to the significant negative impact that the unrestricted and general identification of treating clinicians and staff may generate’’

His submission also stated:

1. There had been a mistaken filing of his provisional report by his medico-legal agency.
2. His instructing solicitors did not provide a review of his report before submitting it to the court.
3. He was not informed that Professor AM had changed her evidence.
4. He could not access crucial documents.
5. His evidence was within a reasonable range of opinion, and he was entitled to reference [Dr N’s] earlier views.
6. He had never before been the subject of judicial criticism.
7. Any shortcomings can be remedied with training and better instructions.
8. There is a risk that naming him would to him being vilified, targeted, and harassed.

Considerations

The court considered the following in its decision-making process:

1. A balancing exercise of competing rights under Article 8 (everyone has a right to respect for their private and family life, their home, and their correspondence) and Article 10 (everyone has the right to freedom of expression) of the Human Rights Act 1998 (in accordance with Lord Steyn’s judgment in Re S).
2. An acceptance that there is no presumption or starting point and compelling reasons do not need to be established before anonymity is granted.
3. A balancing exercise of the parents’ rights to exercise free speech against the medical experts’ right to a private life.
4. Wide interest of the public and other Courts in being aware of matters of legitimate concern and for the Press to be aware in its role as public watchdog.

Decision

The Court decided that Professor Sellar should be named, but Professor [AM] not.

How did it reach this decision?

1. An expert’s right to change their opinion. This in itself is not something that experts should be criticised for. However, their duty to the court includes an obligation to inform the parties and the court without delay of any change in the opinion and of the reason for the change. This was done by Professor AM.
2. Article 6: Right to a Fair Hearing. Neither expert argued that their Article 6 rights have not been respected. Therefore, the court was satisfied that Article 6 rights were complied with.
3. Fundamental issues with Professor Sellar’s submissions:

• Regarding the report. Firstly, his ‘provisional report’ was signed and therefore contained no indication that it was provisional. Secondly, he undertook a discussion with Professor AM based on their respective reports. Finally, he swore an oath in the witness box that his evidence was ‘the whole truth and nothing but the truth’’ and that his report was true to the best of his knowledge and belief, without qualification.
• His claim that he could not access the hospital notes is negated by the fact that there is no suggestion that he reverted to the instructing solicitors seeking an accessible copy. He was also entitled to ask the Court for directions under FPR r25.17 and did not do so.
• He did not just seek to reference [Dr N’s] report, he deferred to it.
• His submission that ‘’it will not happen again’ may reduce public interest, but it does not minimise the criticism itself or negate public right to know.
• His submission that instructing solicitors should have reviewed his provisional report and sought change before it was disclosed is incorrect. Professor Sellar was a single joint expert, instructed by all parties. The report should have been provided to all parties at the same time, or, failing that, as sent out by the expert.
• Professor AM notified Professor Sellar of her change of evidence on 22 March 2022. At no point during his evidence-in-chief on 23 March 2022 did he address the consequences of this change of evidence or express surprise.

Summary

What is clear from the above is that the most crucial reason that the Court reached different outcomes for Professor AM and Professor Sellar, was the negative conduct of the latter expert.

The Court accepted that the criticism put by the parents was of Professor Sellar not Professor AM.

 Professor Sellar was effectively arguing for the parents’ right to free speech to be curtailed to avoid the consequences of his own performance in this case. As a medical expert in a public law case, he could not have approached the matter with any expectation of anonymity.

However, in Professor AM’s case, there was a risk, even with an informed and knowledgeable readership that naming her would lead her to being ‘’tarred with the same brush’’.

This case not only highlights the decision-making process that a court is likely to take when considering a submission for anonymity, but also how important regular and up to date professional training is to an expert witness.

To help expert witnesses carry out their work in compliance with the rules, Bond Solon offers a variety of courses, such as Discussions Between Experts, Excellent in Report Writing and Law & Procedure (civil, criminal, and family law options). Please visit here to view our full suite of courses.     

Author: Meera Shah

This article was first published on 10 October 2022