There are mixed opinions on when, and whether, expert witnesses should disclose prior judicial criticism with one prominent judge there is significant nuance to this requirement.
Speaking at the Bond Solon Conference in November last year, Mr Justice Waksman argued that, in respect of last year’s High Court decision in JSC Commercial Bank Privatbank v Kolomoisky [2025] EWHC 1987 (Ch), having your analysis opposed by a judge often “comes with the territory” and does not necessarily mean an expert witness must disclose every instance of criticism.
In Kolomoisky, Mr Justice Trower held that experts, or their instructing parties, must inform the Court of any adverse judicial remarks made about them in previous proceedings, regardless of whether the criticism related to the current case. Such disclosure is already required in the criminal procedure rules, but Trower’s decision suggested that the same duty existed in civil procedure, despite there being no explicit obligation to do so in Part 35 or the Civil Justice Council’s guidance.
However, in addressing the issue on 7 November, Waksman interpreted Trower’s instruction in Kolomoisky as relating to cases you could “only describe as [a] serious complaint, which is bordering on misconduct”.
The safest course of action with that in mind, is for experts to disclose all significant criticism to their instructing solicitors as early as possible and for the legal team to make a call on whether any of it needs disclosing to the court. In doing this though, an expert may be concerned that this could jeopardise their instruction.
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Controversial criticism
One expert witness on the receiving end of some potentially career damaging criticism has had to grapple with this issue. Mark Miller, a consultant anaesthetist working in pain medicine was instructed for the defendants in Palmer v Mantas [2022] EWHC 90.
This was a personal injury case in which ultimately the claimant, Natasha Palmer, was awarded £1.67 million in damages following a road traffic accident, despite the defendants’ arguments of “fundamental dishonesty” due to alleged inconsistencies in Palmer’s accounts.
The judge, Anthony Metzer QC, ruled in favour of Palmer, concluding that her injuries amounted to a disability and necessitated compensation for a mild brain injury and related physical and psychological issues. As such, a significant sum was awarded.
In his judgment, Metzer criticised the expert evidence provided by Miller suggesting that the expert had never believed the complainant and thus had failed to consider alternative views.
The judge said: “I was troubled by the extent of departure of Miller from his Part 35 duty, and I considered that it lacked the appropriate necessary balance, probably as a result of his initial views of the Claimant’s credibility.”
Before commenting on Miller’s evidence, Metzer noted that he had been warned by the expert’s instructing solicitor, Charles Woodhouse, that adverse criticism of him may have a “career-damaging effect”. Metzer reassured the court that he had “absolutely no desire to do that” and hoped his criticism would be “limited to the findings in this case”.
While the judge directed his criticism only to the relevant case and did not intend any harm to Miller’s career, or even his wider reputation as an expert witness, the criticism found its way to Miller’s regulator, the General Medical Council (GMC), by way of an anonymous complaint dated 27 January 2022.
The alleged misconduct was thoroughly investigated over the course of the following two years, including the regulator having the evidence reviewed by an independent expert, who had been a practising consultant in pain medicine and acted as a medico-legal expert witness.
Regulatory oversight
While the GMC did not bar Miller from working during the investigation, and ultimately found he had no case to answer, the criticism and the complaint did have a material effect on Miller’s expert witness work, leading him to lose around 20% of his instructions.
Miller recalls instructions falling away from personal injury firms that were no longer permitted by the insurers to instruct him due to the criticism he had received in Palmer. He is grateful however, to have a letter from the GMC that exonerates him, clearly stating that it decided to close the case with no action, and outlining the reasons for that decision. In it, complaints of rudeness and dismissive behaviour that were made regarding a meeting between Miller and the defendant were found not to meet “the realistic prospect test”, meaning they were not possible to prove.
On an allegation of bias by the judge, the GMC found no evidence that Miller been consciously biased or that he had sought to mislead the court. With the help of its independent expert, the regulator concluded that Miller, as he had maintained in court, had reached his decision based on the evidence available to him.
In a letter, the GMC said: “It is significant that the expert instructed by the GMC has not criticised Dr Miller’s actions in writing his reports. We place weight on that opinion in reaching our conclusion that these allegations are not capable of proof. There is no evidence of other factual errors of more significance. This is not a serious enough matter to warrant action on Mr Miller’s registration and does not satisfy the realistic prospect test.”
The GMC noted that Miller had accepted there were factual errors in his report, but that these were found to be “minor”. The defendant had cited “numerous inaccuracies”, but the GMC pointed to just one “indicative” error – the one highlighted in the judge’s criticism – which was Miller’s assertion that the defendant had attended a consultation with him alone, when in fact she had been accompanied by her mother. This, the GMC pointed out, Miller had “accepted was his mistake”.
While, Miller was free to continue practising over this time, it was a stressful wait following an already uncomfortable experience in court where he said he felt he “didn't get cross examined” but “just got screamed at for an hour and a half, two hours”.
A solicitor’s perspective
Miller’s case highlights several issues. It reveals the professional vulnerability of experts, who in some cases do not belong to a regulated profession and may not be able to secure evidence to the contrary of a judge’s criticism, as Miller was able to in this case.
It also throws up questions of when and how judicial criticism should be disclosed. The GMC refers to “minor” errors, which in Waksman’s reading of the rules would not require disclosure. However, Miller says he does disclose his criticism in this case to the instructing solicitors when he knows it is going to go to court. He does not disclose it prior to that point.
Dr Jock Mackenzie, a civil partner and solicitor-advocate at Anthony Gold Solicitors, says he routinely asks experts to disclose the names of any cases in which they gave evidence at trial, and whether the judgment was favourable or unfavourable to them. He added that he does not imagine that this was common practice among instructing solicitors, so why is it so important to him?
He says: “Whether criticism of an expert in any given case is or is not unfounded is often a difficult call to make. An expert may feel aggrieved about a judge’s criticism but whether that criticism is justified will very much depend on the case and it will be highly fact specific.
“Also, one of the skills of being a judge, of course, is being able to assess the cogency of a witness’ oral evidence from their conduct in the witness box and not just the content of their evidence, both oral and written. Many of the criticisms of experts are for relatively simple failings, such as not considering witness statements or other key evidence when providing their opinion, stepping outside their remit, making basic errors, being internally inconsistent, advocating, being partisan, poor use of literature, being illogical, not knowing what the basic law is, and so on. It is these types of basic failings that tend to turn judges against experts and invite criticism.”
Multitude of factors
One of Miller’s concerns in his case was that Metzer was not a judge with a great deal of experience in the medico-legal field, specialising in crime and immigration. Mackenzie accepted that whether a judge fully comprehends the evidence in the field of clinical negligence can be variable, often depending on a multitude of factors, including the complexity of the case, the state of the evidence, the quality of the advocates and the quality of the witnesses – including the experts.
However, Mackenzie pointed out that a good advocate “should be able to help the less experienced judge”. Beyond this though, he said there is a risk on all sides of a case, of going to court at all.
He says: “Going to trial often becomes a 50:50 risk, however good you may think your case is. It is one of the vicissitudes of litigation. If an expert properly adheres to their duties and responsibilities throughout the case and is then able to explain themselves and justify their opinion succinctly and clearly to the judge in oral evidence at trial, they should avoid any, or any meaningful, criticism.”
He adds: “It is when an expert falls foul of their duties, which happens all too often these days, and/or are poor in the witness box that things may then tend to criticism.”
Miller too says he felt that the instances of totally unfair criticism, or criticism such as in his case that seems excessive and potentially career damaging is probably rare. The issue though remains, what to do if you are unlucky enough for it to happen to you? Miller acknowledges that, “the compensation for experts is you charge a fortune, but you're putting your neck on the line for hundreds of pounds an hour”.
In other words, is it worth it when there is so much at risk? He believes the appointment of judges with adequate experience in the area going to trial would help mitigate the risk, but as Mackenzie has points out, if everyone is fulfilling their duty at court, a judge should be well-enough informed on the issues at hand before reaching a judgment.
Best practice advice
Mackenzie says: “My personal view is that experts should disclose judicial comment – both positive and negative – as it is information in the public domain. If an expert feels criticism is unjustified, they could potentially seek an explanation of why; they should certainly discuss it with their instructing legal team.
“I doubt experts will feel shy about publicising positive comment, so the quid pro quo is also to publish the negative and take the rough with the smooth. Generally, in my experience, criticism is justified but judges are only human so sometimes mistakes will be made.”
As an instructing solicitor, Mackenzie is clear that he would want to know about judicial criticism, but he adds: “I would not decline outright to instruct an expert based solely on that judgment and even more so if they could demonstrate they had learned from it, understood why there had been criticism, what is important to judges, etc, so that there was no repeat performance.”
Expert witness work requires a great degree of good judgment, alongside technical skill and poise under pressure. Waksman and MacKenzie may appear to have differing views, but really their overwhelming advice is for experts to be ethical in making a judgment and to demonstrate compliance with their duty to the court.
For Waksman, there may be a level of perceived time wasting in disclosing every trifling criticism received over a long and distinguished career. But from an instructing solicitor’s perspective, it is critical to be aware of anything that may be used against an expert at court by the opposing side.
Ultimately, the decision to disclose is a matter of judgment. Experts must be confident that any decision that they make does not undermine their professionalism, their duty to the court, or their overall integrity. Failing to meet those requirements, is rightly an invitation to criticism itself.
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