Spencer: Unacceptable for language problems to emerge in cross-examination
The High Court has rejected the evidence of an expert witness who had “little or no regard” to the Civil Procedure Rules and was “prepared materially to mislead the court”.
Mr Justice Martin Spencer also struck out the claims of two of the claimants because, notwithstanding their witness statements, it emerged during cross-examination that they could neither speak nor read English.
He described this as “a virtual contempt of the proceedings of this court”.
The claims arose from allegations of sexual and financial abuse and exploitation against the priest of a Hindu Temple in Coventry.
The claimants called expert evidence from consultant psychologist Dr Jacqueline Blyth and the judge observed: “Regrettably, the reports and evidence of Dr Blyth fell well below the standard to be expected of a competent expert witness, both as to form and as to substance.”
Despite saying in cross-examination that she had previously provided reports and was familiar with part 35 of the CPR, as well as the practice direction and the Guidance for Experts in Civil Claims, she failed to include the various required statements in her four reports, such as that she was aware of her duties under part 35.
The expert said these failures had been errors but, Martin Spencer J continued, “unfortunately, when it came to the substance of the report, matters got worse for Dr Blyth”.
The most egregious was plagarising an article by an American academic on religious gurus. Dr Blyth said it was not in her literature list because she had not referred to it in her report.
However, five paragraphs of the report were “lifted straight out of that article and passed off in Dr Blyth’s report as if they represent her opinion to the court”.
Dr Blyth said she did not recall whether she had read the article. The judge said: “In my judgment, this answer must have been untruthful, given the way in which extensive passages had simply been copied by Dr Blyth from Dr Lucia’s article and passed off by Dr Blyth in her report as her own.”
Asked why she was presenting this work as if it were her own, she said: “I have done that but I am presenting them as if they were my own because I am of the same opinion as her.”
Martin Spencer J said: “It is difficult to imagine a more blatant breach not just of the provisions of part 35, the practice direction and the guidance but, more fundamentally, an expert’s obligation to the court because these passages were, in effect, a deception practised on the court by Dr Blyth in pretending that these passages were her own words, representing her own opinions, rather than the repetition – regurgitation if you like – of the views and opinions of Dr Lucia.”
The judge said there were “other instances of inaccuracy or at worst, misleading passages in Dr Blyth’s report” and rejected her evidence in its entirety.
The ruling also explained how, on the eighth day of the 18-day trial, he had struck out the claims of the fifth and sixth claimants, who were the parents of the second claimant.
In the course of the fifth claimant’s evidence, “it became clear that, although his witness statement is in English and he affirmed its accuracy he cannot in fact speak English at all”.
His only language was Punjabi and, through an interpreter, said he could not read or write at all and indeed had never been to school. The sixth claimant was in the same position.
Counsel for the claimants said that this “came as a surprise” both to him and his instructing solicitor.
Martin Spencer J rejected an application to rectify the position and instead struck out the claims.
The judge said: “This is clearly and certainly not a question of simply redrafting those statements in Punjabi and having them certified, having been read to those claimants.
“Firstly the particulars of claim, then the schedules and then the statements would all have to be revisited and the potential is there for the claims to be fundamentally amended once it is established exactly what the evidence of those claimants is that they are able to state to the court.
“There is no acceptable explanation for how this situation has arisen in this case.”
He said he suspected that the pair’s engagement with the case was through their daughter.
“But that is, as I say, speculation and if that is the case it seems to me at first blush that the solicitors have not done their duty appropriately in this case in that they have not engaged directly with the fifth and sixth claimants, they have not established that which ought to have been established well in advance of this trial in relation to their ability to read and speak English, and this should have been raised at the pre-trial review so that appropriate steps could be taken.”
For it to have arisen in the course of cross-examination was “wholly unacceptable and, I agree, amounts to a virtual contempt of the proceedings of this court”.
Overall, Martin Spencer J dismissed all the claims brought.
Google entry: “Peacock & Co are experienced and skilled solicitors in South London, serving Wimbledon and Epsom. Contact us today for expert legal guidance.”