When judges consider the credibility of expert witnesses, they scrutinise both the written and the oral evidence. The case of Rashpal Samrai & Others v Rajinder Kalia [2024] EWHC 3143 (KB) is a salutary warning to experts.
The case
This was a complex case concerning alleged sexual abuse over a period of years by a Hindu guru. Following the trial, the claims of all the claimants were dismissed. They had instructed a clinical psychologist, Dr.B, as their expert witness. The Defendant had instructed a clinical psychiatrist, Professor AM.
Having read their reports and the joint statement, the judge concluded that:
in my judgement no reliance whatever can be placed on the reports and opinions of Dr B. She demonstrated herself to be an expert who had little or no regard to the provisions of Part 35, the Practice Direction and the Guidance in preparing her reports and who was prepared materially to mislead the court by passing off the views of another person as her own by lifting large passages from that person’s article and setting them out in her report as if they represented her own views without acknowledgement or reference to the originating source. In the circumstances, I consider that I have no choice but to reject Dr B’s evidence in its entirety.
1. The declarations
CPR35.10 and PD 35, para. 3.2(9)(a), require experts’ reports to include a statement that they understand their duty to the court and that they have complied with it.
Dr. B’s reports had no such declaration of compliance. [para.251]
PD 35, para. 3.2(9)(b) requires experts’ reports to include a statement that they are aware of the requirements of CPR 35, PD35 and the Guidance of 2014.
Dr. B’s reports had no such declaration of awareness. [para 250]
2. Instructions
Paragraph 55 of the Guidance states that experts’ reports should list all materials and documents used or provided.
Dr. B’s reports had no such list of materials and documents. [para.252]
3. Summary of conclusions
Paragraph 62 of the Guidance states that a summary of conclusions is mandatory.
Dr.B’s report had no such summary. [para.252]
4. Compliance with the duty to the court
There was a factual dispute about whether the defendant could have sexually abused the claimants in a room at the back of the temple, as alleged, when that room was visible from the temple.
That was a matter for the court to determine.
Dr. B included in her report that “although RK says that no such room exists, it is of course not difficult to imagine that as soon as he had been arrested RK arranged for the room to be disassembled”.
She accepted that this was purely her own supposition, not based on any evidence provided to her. She accepted that she should not have put that in. The judge took the view that she had lost sight of her role as an expert and her duty to the court. [para.253]
5. Citation of literature
PD 35, para.3.2, and the Guidance para.13, require experts to set out any literature they have relied on.
Five paragraphs of Dr.B’s report were shown to have been plagiarised from an article by Dr Amanda Lucia, Department of Religious Studies at the University of California-Riverside; no reference was made to that work as a source.
The judge did not accept her explanation that she held the same view as Dr. Lucia and therefore the words were also her own.
6. Cross-examination and questions from the judge
There are three examples in the judgement which illustrate the level of scrutiny given to experts’ evidence, written or oral.
(i) The use of a religious term
In the passage taken from Dr. Lucia’s article, reference is made to “the guru’s prasad”.
The judge sets out the questions put by defence counsel and by him and adds his conclusions at para.255:
“[Defence counsel]Ms Crowther asked Dr B:
“What is prasad, Dr B?”
There was a long pause and then she replied:
“I don’t recall what that means. I was told lots of things during these interviews which I wrote down.”
[Judge’s conclusion] This was a further attempt to deceive the court. Those words were copied straight out of Dr Lucia’s article, they were not something that Dr B was told by the Claimants which she wrote down. When I asked the question:
“Is it your evidence that where you wrote ‘rejecting the guru’s prasad’ that was based upon what you were told by one of the Claimants?”
Dr B replied:
“I can’t recall, My Lord.”
In my judgment, Dr B knew perfectly well that she wrote those words because she lifted them from Dr Lucia’s article, not because they were spoken to her by any of the Claimants.”
(ii) Relevant material
Dr. B accepted under cross examination that she had taken a full life history from each of the claimants but she had not included those life histories, in whole or in part, nor made reference to them, in her reports.
When challenged on this, she responded that she “didn’t think that it was of any relevance whatsoever”.
The existence of the life histories only came out during the discussion with Prof AM. During the discussion, Dr. B stated that she believed her records of the life histories supported her findings using a psychological questionnaire, SCL-R-90.
The judge noted that, if Dr. B thought that her findings were supported by the life histories, they clearly could not have been “of no relevance whatsoever”. [para.256]
(iii) Preparing to give evidence
Under cross examination, Dr. B stated that she did not think that the claimants were suffering from Religious Trauma Syndrome (“RTS”). The judge pointed out that, in one of her reports, she had written: “The damage that RTS or spiritual abuse has caused these claimants has been vast and even debilitating”.
When asked why she had just said the opposite, her response was: “I’m sorry, I can’t remember this report”.
Judge: “So you have come to court and attested to the truth of these reports which you rely on without having reminded yourself of their contents?”
Dr. B: “That’s correct”
As the judge commented: “She acknowledged that this was not acceptable as an expert.”
What can be learned from Dr. B’s experience?
There are several points to reflect on:
(i) Judges take note of the declarations and other matters which may be thought of as “issues of form” in the reports provided by experts. The declarations are never to be viewed as mere formalities; they are indicators of an expert’s knowledge of, and willingness to comply with, the rules of court.
(ii) Experts must always identify their sources of information, whether that is literature or evidence provided to them or material generated by them. Transparency is the key. The court needs to know whether something is the expert’s own opinion, or a quotation from the literature or a piece of factual evidence; the court must be told the sources of all information.
(iii) Experts must always include all relevant material.
(iv) Experts must never deviate from their duty to the court by starting to be partisan or to advocate a position for the instructing party.
(v) Experts must always prepare properly for giving evidence in court.
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