In a recent High Court case, a judge was initially cautious of the claimant’s midwifery expert witness. Not because of the nature of her evidence or her conduct but the fact that she spent considerably more time making a living from being involved in litigation than her medical practice. What conclusions can experts draw from this case?
Table of contents
The facts of the case
In LMN v Swansea Bay University Health Board [2025] EWHC 3402 (KB), the claimant suffered brain injury at birth. He lacked capacity to litigate so his mother, acting as his litigation friend, brought an action against the defendant claiming that the claimant’s injuries were caused or materially contributed to by the negligence of the defendant.
The claimant’s case was dismissed by HHJ Dight CBE, sitting as a Judge of the High Court – failing on both liability and causation.
The claimant’s midwifery expert
The judge took issue with the claimant’s expert on midwifery who had prepared a report dated 21 June 2024 commenting on the allegations of negligence.
What is crucial here is that the judge had no adverse findings against the expert in question. Therefore, this was not a criticism of her conduct or evidence, but her career profile. In particular, the judge referenced “her curriculum vitae and evidence”, which indicated that she was “heavily involved in the business of litigation, with her medical work taking very much a secondary role”.
For example, in the section of her report headed “Employment History” she described her experience as “Medical Negligence Triage Manager, October 2023 – present”. Her role included supporting fee earners and clients through a claim. She was also involved in marketing and business development for her team.
The expert’s litigation experience caused the judge “pause in evaluating the objectivity” of her evidence, which he stated was “uncompromisingly critical of the defendant”. He also went on to state that in cross-examination, the expert “stuck to her guns” and was not prepared to yield to suggestions, particularly when a softer stance might have been more appropriate.
What can experts learn from this case?
While HHJ Dight CBE’s comments relate purely to the unique facts of this case, it does raise some important questions for experts more generally, namely:
- If an expert splits their time between their day job and their expert witness work, what is the minimum amount of day job work they should be doing to ensure their credibility as an expert witness is appropriate to the cases in which they are acting?
- If an expert has retired from their day job, what is the maximum amount of time they can look to offer expert witness services to remain credible as an expert in the eyes of the court?
Dr Jock Mackenzie, Partner at Anthony Gold Solicitors, who regularly instructs experts in clinical negligence cases and experienced criminal solicitor and lecturer, Richard Stone have provided some guidance on this subject.
Considered credible
The answer to point one is case and expert specific. There is “no one size fits all”, Mackenzie states, outlining several factors that determine the minimum amount of day job work an expert should be doing to be considered credible, such as:
- The discipline the expert works in.
- The specific nature and role of their work.
- Their exposure to patients (medical experts).
- Their prior experience and expertise.
- What are they being asked to comment on.
Stone agrees, stating that “it is of course dependent on the nature of the field” as some areas lend themselves more to quick ‘tick box’ type of reports than other areas”.
Expert shelf life
On point two, Mackenzie confirms that experts generally have a “shelf-life” following retirement.
He says: “The overarching point is that … the longer an expert is retired from medical practice, as time passes the less credible their opinion will probably become in relation to recent cases (but not historic ones).”
However, this is also extremely fact-sensitive and fact-specific as experts in certain disciplines might be seen to be credible long after their formal retirement.
The consideration for experts winding down their day job work and approaching retirement is the same - one of relevancy, with experts ensuring that they “stay relevant” whatever that looks like in their specific profession.
Stone says that “as long as they can justify that they still have the required experience and are able to give 100% to each report” that would probably be acceptable.
Summary
This case serves as a useful reminder for experts contemplating carrying out predominantly expert witness work over their main career and/or those approaching retirement from their main career. These experts should be mindful of the impression their career profile could have on a trial judge and also instructing solicitors.
How we can help
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