SJE – tests for allowing additional Experts

[2008] UKEAT 0591_07_2105 TEDR Volume 13 Issue 3

The Facts

Mr Saunder brought a claim against his employers, Birmingham City Council alleging 48 individual complaints of unlawful racial discrimination. Three of those complaints were upheld by the Employment Tribunal and Birmingham City Council was found liable for those acts of discrimination.

Following such a finding, directions were given for a remedy hearing.

Mr Saunder maintained that he had suffered psychiatric illness as a result of the bullying and racial discrimination he had suffered and thus an Order was made that the parties should agree upon a joint psychiatrist to report to the Tribunal on the issue of causation of any injuries. In default of agreement, the parties were to return to the Judge who would decide who should be appointed.

The parties could not agree and thus the Judge selected a Professor Freeman.

Professor Freeman prepared a report. It was unhelpful to Mr Saunder.

In response, Mr Saunder obtained reports of his own (from Dr Deuchar and Dr Khalil) which commented upon the report of Professor Freeman. An application was made by Mr Saunder to the Employment Tribunal:

a. To exclude the evidence of Professor Freeman on the basis that he had exhibited bias to Mr Saunder himself and against the contention that race discrimination may cause or contribute to mental illness; and

b. For permission to adduce the reports of Dr Deuchar and Dr Khalil.

The Judge ruled that Professor Freeman could give evidence and rejected the application for permission to adduce evidence from Dr Deuchar or Dr Khalil. He concluded that any criticisms of bias or bigotry could be advanced by way of cross-examination of Professor Freeman at the remedy hearing.

Mr Saunder appealed.

The Issues

This summary is limited to how an allegation of bias against an Expert to be dealt with by the Courts.

The Decision

The relevant authorities were reviewed.

The classic statement as to the duties of an Expert is to be found in The Ikarian Reefer [1993] 2 Lloyds Rep 68, 81-82. Those duties were summarised as to oblige the Expert to provide “an objective, unbiased opinion on matters within his expertise”. It was said that “if he fails to fulfil that obligation the Tribunal will no doubt take that into account in assessing his evidence and whether or not it should be accepted”.

In Armchair Passenger Transport Limited v Helical Bar PLC [2003] EWHC 367, the test of apparent bias was considered to be irrelevant to the question of whether or not an expert witness should be permitted to give evidence.

Accordingly, the decision to allow Professor Freeman to give evidence, and the reasons for the decision (namely matters could be pursued by way of cross-examination) was upheld

Mr Saunder was, however, granted permission to call one of the two alternative Experts upon whom he wished to rely, particularly as the Court recognised that cross-examination is only truly effective when there is evidence to support it and this is particularly so where the allegation is that the expert has failed to comply with his duty to give an objective, unbiased opinion within his expertise.

Comment

Once again, it is made clear that the duty of the expert to be objective, unbiased and comment only upon matters within his expertise. That is of crucial importance.

Any alleged failure to comply with this duty does not de-bar the evidence from being received but can (and doubtless will) be dealt with by cross-examination.

Accordingly, any failure to comply is likely to lead to an uncomfortable time in the witness box!