Spotlight on Expert Evidence after Muyepa

Since the judgment in the case of Muyepa v MOD was handed down in late 2022, we have been carefully reviewing the implications, taking soundings from our customers and providing our experts with in-depth training on the judgment.  Whilst the long term ramifications of the case remain to be seen, it is clear that there will continue to be a strong focus on the importance of the independence of the expert witness, demonstrated by the expert’s awareness of their duties under CPR 35.

Induction and ongoing training at Bush & Co

At Bush & Co we’re proud that our experts undergo a full programme of induction training, including legal sessions specifically covering their duty to the Court, the obligations that CPR 35 places upon them and the importance of the Statement of Truth.  Our bespoke in-house training programme is regularly updated to respond to key legal developments.  This provides our experts with the opportunity to attend training in various significant legal areas to ensure that their knowledge is current and that they are at the forefront of the industry in terms of their litigation expertise, in addition to their sound clinical knowledge.  These sessions also facilitate sharing of best practice across our service, which is of great benefit to our experts, enabling them to learn from peers from multiple different disciplines.

A Balanced Perspective

As a result of our training offering, our experts are fully aware of the requirement to provide robust, unbiased opinion in line with their overriding duty to the Court under CPR 35.3.  As the Judge noted in Muyepa, “Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or Defendant’s “team”, with their role being the securing and maximising, or avoiding or minimising, a claim for damages.”  This can be a tricky tightrope for experts to walk at times, particularly in the catastrophic injury sector where cases are often long-lasting, requiring in-depth expert involvement with various case conferences and discussions as the evidence progresses.  However, the sound grounding in the core principles of expert work that our experts receive ensures that they are perfectly placed to work collaboratively with their instructing solicitors, whilst at all times being mindful of, and compliant with, their duty to the Court.

Quality Assurance

The depth of knowledge of our experts is supported by our robust Quality Assurance processes which ensure that reports are to standard and compliant with the CPR and solicitor requirements.  Our Quality Assurance team includes specialist lawyers and clinicians, who ensure that reports are both clinically accurate and reflect the letter of instruction, whilst not interfering with the expert’s opinion in any way.  Our customers can therefore be confident that the criticism raised of the Claimant expert in Muyepa, that “much of what was claimed should simply never have been recommended” will not apply to Bush & Co reports.

True Independence

One of the key criticisms of the Claimant expert in Muyepa was that she had a practice that was exclusively based on Claimant instructions, leading to, in the Judge’s opinion, her reports containing “some partisan views designed to maximise damages for the Claimant rather than recommendations made, as they should have been, after balanced and objective application of the relevant principles.”  The Judge also noted that there was a risk posed by only accepting instructions for either Claimants or Defendants of “a lack of true independence arising from the need to maintain a source of instructions and the pressure to prepare a report which is favourable to the instructing party.”  We are proud that we as a company, and our experts as individuals, undertake a broad spread of both Claimant and Defendant instruction work.  This ensures that our experts bring a balanced perspective to their instructions, enabling them to provide unbiased, non-partisan opinion.  In addition to meeting their Court obligations, this is also of significant benefit to our customers in ensuring that the experts are able to consider the case from a wider perspective than just receiving instructions for “one side”.  This of course mirrors the approach adopted by many Counsel, who frequently accept instructions from both Claimants and Defendants for similar reasons.

Joint Instructions

A further area of consideration raised by the Muyepa judgment is the issue of joint instructions.  It remains to be seen whether the Judge’s intimation that an increased number of joint instructions should be considered will lead to a change in the industry.  We routinely receive joint instructions and so already have all of the necessary processes in place to be able to service these cases.  In addition, the fact that our experts all receive instructions from both Claimants and Defendants already means that our customers can be confident that if considering a joint instruction, a Bush & Co expert would be a safe pair of hands, able to deliver an unbiased report which fully meets the Court requirements.

Get in touch

We will be carefully monitoring the response to the Muyepa judgment in the coming months, as we do with all key cases, to ensure that our experts are continuing to maintain the highest standards in their work and that they are leading the way in providing quality, robust, independent opinion that can be relied upon by instructing parties and the Court.  If you would like to discuss our services, or instructing one of our wide range of experts in any of your cases, please do not hesitate to contact us for an initial discussion at hello@bushco.co.uk