Case Updates

At a time when psychologists in particular are concerned about psychological evidence being given by psychologists who are unregulated, this case illustrates the risks when an ‘independent’ social worker gives psychological evidence.

The learning points are of general application. The specifics of the case are for psychologists, psychiatrists and social workers.

Coventry City Council v XX [2024] EWFC 249 (B) 

The father sought permission to rely on fresh evidence that he had a diagnosis of autism spectrum disorder in an appeal against care and placement orders made in respect of his daughter. The judge reviewed the law on admitting fresh evidence on appeal before applying it to the case.

The judge noted that the expert readily accepted that integral to his reasoning was that he did not believe the claimant as to the symptoms he had suffered and, probably, teh claimant's account of the incident. In the judge's view, it is entirely outside the remit of an expert to decide which witnesses of fact he believes or disbelieves.

Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB) 

The 'joint statement' prepared by two blockchain experts was really two statements, one from each expert.

Fabrizio D'Aloia v Persons Unknown Category A & Ors [2024] EWHC 2342 (Ch)

The court found that a highly respected and hugely experienced histopathologist expert witness, who was overburdened with work, had made errors in his examination of the forensic material and closed his mind to possible or probable accidental causes for the injuries identified. 

London Borough of Hammersmith and Fulham v G [2024] EWHC 2200 (Fam) 

Experts, in particular medical experts, are likely to be familiar with experts’ discussions that take place after the exchange of reports. This case referred to a circumstance more commonly, or perhaps seldom otherwise, encountered in the Technology and Construction Court. 

This case is about whether the judge erred in finding that Ms Soophia Khan had capacity to defend proceedings for contempt of court. This is an important judgment for any psychiatrist called upon to assess fitness to plead and stand trial in a criminal case or litigation capacity in a civil case; and important also for any psychologist whose evidence may be considered in such a case. It is not just because it compares the tests for fitness to plead and stand trial and litigation capacity; it is a rare illustration of not only how a judge at first instance assesses expert evidence in such a case but also of how the court of appeal analyses the judicial reasoning when such a case is appealed.

The judge in this patent case found that the claimants’ gene therapy expert had developed, quite possibly guided by lawyers, the understanding that the primary duty of an expert witness is not to say anything that may damage the instructing party’s case if it can be avoided.

In this US case, an expert in fiduciary services used Microsoft’s Copilot to cross-check calculations he used in expert evidence. He was unable to recall the prompts he used, state the sources Copilot relied on, or explain how the tool worked and arrived at its outputs. The judge provided some useful insight into the challenges with using AI in expert evidence. 

The defendant’s spinal cord injury expert in this case agreed early on in his cross-examination that he had lost all objectivity and independence in the case, while the defendant’s physiotherapy and accommodation experts were criticised by the judge for adopting more partisan approaches in their later evidence.