How Independent Are You?

Related Sector: Expert Witness

How mindful are you of expressing your own opinion?

Is delivering an independent report at the forefront of your mind?

The first instance judgment in Tylicki v Gibbons [2021] EWHC 3470 (QB) provides invaluable commentary on this issue, noting that experts should be wary of sympathising with their instructing party and should not produce a report that has been influenced by instructing solicitors. It also highlights how judges may assess these issues and how experts might be challenged in court.

Bond Solon trainer and subject matter expert, Nick Deal reviews the background of this case and the salient points.

Background

The claim arose out of an incident during a race at Kempton in the 3.20 Mile Maiden on 31^st October 2016. There was a collision between Graham Gibbons and Frederick Tylicki, both experienced professional flat race jockeys. The collision caused Mr. Tylicki’s mount to fall, resulting in Mr. Tylicki sustaining T4 AIS complete paraplegia.

Mr. Tylicki alleged that Mr. Gibbons had ridden in a way that fell below the standard of care that was expected of him.

In support of his claim, Mr. Tylicki called Mr. Ryan Moore as an expert witness on the issue of professional flat race riding. There was no doubting his subject matter expertise. Her Honour Judge Karen Walden-Smith described him as having ridden in “tens of thousands” of races and having won more than 2,500 of them.

Why, then, was he subjected to “sustained criticism” by Mr. Gibbons’ barrister?

There were two broad criticisms:

• Firstly, that he was too sympathetic to Mr. Tylicki to be a truly independent expert witness.
• Secondly, the manner in which his report came to be drafted.

Either of these criticisms, had they stuck, would be likely to have led to the judge disregarding, or at least placing less weight, on his evidence.

The sympathy issue

Mr. Moore was approached directly by Mr. Tylicki to give expert evidence. He was cross examined about his sympathies for the claimant and expressed a great deal of sympathy for him - and also for Mr. Gibbons. Mr Moore stated that it was a “horrible situation” and that he was trying to write a report that was fair.

The judge’s assessment was that Mr Moore was “an extremely straightforward witness who was using his expertise in order to assist the court’’ (see paragraph 16 of the judgment).

She expressed complete confidence that he was trying to provide a fair report. This was based on his experience and on the evidence in the case. And found nothing in his evidence, or his delivery of it, to support this criticism (see paragraph 17).

The report

There was criticism, too, about the way in which Mr Moore’s report was drafted.

This was triggered by his open admission in the report that it been made “from notes made by the lawyers [for the claimant] from what I have told them at face-to-face meetings with them and in telephone calls”. It was, therefore, unclear as to whether the report was actually Mr. Moore’s opinion or the lawyers’.

The judge ordered disclosure of the notes referred to in the report. Mr. Moore was cross examined in depth about his report and the following emerged:

• The report was drafted, amended and redrafted by the lawyers (albeit subject to Mr. Moore’s review).
• Mr Moore was asked questions by his lawyers in telephone calls and face-to-face meetings, over some months.

This could certainly look bad, both for the expert and for the lawyers. Having heard his evidence under cross examination, however, the judge concluded that:

• In revealing how the report came into being, Mr. Moore was being commendably candid with the court.
• Mr Moore was a very careful witness, who made concessions “where appropriate”.
• Mr Moore was “not someone who would put his name to a document that did not contain his views” and was “not just a conduit for the views of others”.

The lawyers were unusually involved for practical reasons. She noted that “Mr. Moore told the court, he rides horses, he does not sit at a computer” (see paragraph 18).

Conclusion

Whilst this is purely an illustrative judgment (not an authority), experts would be well advised to take note.

What went in Mr. Moore’s favour were his transparency and his adherence to the evidence: together, they demonstrated his compliance with his overriding duty to the court in a very difficult and tragic case. Judges place great weight on the way in which witnesses give their evidence. They assess the witness in front of them and always look for credibility, integrity, and straightforward helpfulness.

And, what about the outcome of the case? Well, the judge found in favour Mr Tylicki. This was not a case of mere lapses of judgement, but of reckless disregard for his safety.   

Author: Nicholas Deal

First published: 14/07/2022