Professor Keith Rix discusses whether experts can accept instructions on the basis of mirroring the solicitors’ ‘no win – no fee’ agreement in personal injury compensation claims. This item appeared in the February edition of Expert Healthcare Witness Matters, a monthly email newsletter written by Professor Rix.

Any uncertainty as to whether a psychiatrist can provide an expert report as a paper-based assessment is answered by this case.

In this case the paper-based assessment was sufficient for the court to conclude that, having regard to the Mental Capacity Act 2005, s 48, there were "reasons to believe that the Appellant lacks capacity". However, the fact that the court did not make a finding of a lack of capacity and transferred the case to a Tier 3 (High Court) Judge of the Court of Protection in order to determine the matter of capacity indicates how the court recognises how much more difficult it is to make a finding when the report relies on a paper-based assessment compared to a consultation with the subject of the report.   

MacPherson v Sunderland City Council (Rev1) [2024] EWCA Civ 1579 

In considering whether the claimant should be required to provide a breakdown of expert and medical agency fees, the judge decided to offer the claimant the option of either providing the breakdown of expert and medical reporting organisation fees, to enable an assessment of work of both the expert and the MRO, or not providing that information and having the expert fees assessed on the hypothetical basis that there was no medical reporting organisation involved.

The Ministry of Justice has published a call for evidence on the use of evidence generated by software in criminal proceedings.

The call for evidence is to help the Ministry better understand how the current presumption concerning the admissibility of computer evidence is working in practice, and whether it is fit for purpose in the modern world. 

Although this is a dental/maxillofacial negligence case, it is of importance for all healthcare experts instructed in cases where consent may be an issue. It highlights points about which experts should enquire when there may be an issue as to consent to a surgical or other procedure. In this case it was found that the consent process was deficient in a number of respects. It is also a case which illustrates how expert evidence can separately assist the court on the issues of breach of duty, causation, condition and prognosis.

Winterbotham v Shahrak (Rev1) [2024] EWHC 2633 (KB) 

For surveyor experts, this case illustrates some very basic errors and it may therefore also be a useful case for expert surveyor witness training.   

McBride v McGuigan & Anor [2024] NIMaster 20 

The Claimant alleged that the Defendant acted negligently in obtaining her consent for laser eye surgery including failing to adequately investigate her ophthalmic condition prior to the surgery.

Colin Holburn is an EWI fellow, governor and founding member. A consultant in accident and emergency medicine, he has been practising as an Expert Witness for over 30 years. He tells us why he still loves Expert work and shares his advice for those interested in getting into the field.

The defendant made an application for adjournment on the proposition that it could not be ready for trial because its experts required additional time to complete their reports. However, it was unable to demonstrate that it would be unfair to proceed with the existing trial.  

The Government has published its response to the consultation it ran from 18 July to 10 October 2023 on 'Revisions to the Medical Reporting Process for Road Traffic Accident Claims’. The report setting out the government's response summarises the responses received, along with information on the decisions taken and the next steps in relation to implementing outcomes related to the policy proposals consulted upon.

The Government is also engaging with stakeholders until 31 January 2025 on one of its next steps, further revisions to the fixed cost medical reports.