Expert witnesses: GMC v Meadows
The case of General Medical Council v Meadow  EWCA Civ 1390 dealt with two important, but quite separate issues.
The immunity issue
The Court was unanimous in overruling the first instance decision of Collins J by that an expert witness is immune from disciplinary, regulatory or fitness to practise proceedings. (Interestingly, the point had been taken, not by the parties, but by the judge himself.)
Giving the judgment of the Court of Appeal, Sir A Clarke MR pointed out that the recognized principles governing expert evidence, identified by Cresswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer)  2 Lloyd's Rep 68, 81-82 and approved by Otton LJ in Stanton and Ors v Callaghan & Ors  EWCA Civ 1176, had recently been reflected and expanded in a document entitled "Protocol for the Instruction of Experts to give evidence in civil claims", which had been approved by Lord Phillips as Master of the Rolls. Paragraph 4 of the protocol states:
"4.1 Experts always owe a duty to exercise reasonable skill and care to those instructing, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court in matters within their expertise (CPR 35.3). This duty overrides any obligations to the person instructing them or paying them. Experts must not serve the exclusive interests of those who retain them" (Italics added).
His Lordship did not rule out the possibility that there might be a case for some greater measure of protection to expert witnesses than exists at present being afforded to some classes of expert, but held that this was not the case with fitness to practise proceedings.
The serious professional misconduct question
But the Court divided strongly over the other ground of appeal, namely that Prof. Meadows was not guilty of serious professional misconduct. The facts of the case were that Prof. Meadows, who lacked a sufficient statistical background, incorrectly applied probability theory to the death of a child in such a way as to make it almost impossible for the jury in a murder trial to conclude that the child had died naturally by what is called sudden infant death syndrome. He made the situation worse by his use of a striking, but incorrect analogy from horserace betting.
The Master of the Rolls, while accepting that Prof Meadows did not intend to mislead the jury, disagreed with this view. ‘It will,’ he said, ‘be a rare case in which a person should be held to be guilty of serious professional misconduct in the absence of bad faith.’
Auld LJ, in a judgment with which Thorpe LJ agreed, accepted that Prof Meadows was guilty of professional misconduct, but not serious professional misconduct. He quoted Sir Louis Blom Cooper to the effect that the adjudication that Sir Roy was guilty of serious professional misconduct – and hence struck off the register of medical practitioners – ‘was not just a disproportionate finding and/or penalty. It was fundamentally flawed, since it perceived Sir Roy's error as part of his professional service; whereas his mistake or misjudgement had properly to be viewed in the context of the criminal trial….’
As the Court observed, the question of whether professional misconduct is ‘serious’ or not is ‘a value judgement upon which differently constituted panels might reasonably differ’. In this case three judges (one at first instance and two appeal judges) held that the doctor’s misconduct was not ‘serious’, while the Master of the Rolls (the most senior of the judges involved) and the doctor’s professional body, to whose judgement the courts so often defer in such matters, have held that it was. It was a close thing.