Bowker & Bowker v Royal Society for the Protection of Birds [2011] EWHC 737 (QB): scientific grousing

Fun little case, this one, although not for the parties concerned, obviously.  But an early example of the Court following the principles laid down in the British Chiropractic Association claim against Simon Singh, which collapsed amidst much chiropractic angst and scientific rejoicing.

One of the playing-to-the-gallery points in that case was that scientific method was not something suitable for libel law.  Which is fair enough insofar as it goes; scientists will disagree on things and that doesn’t mean one is dissing the other.  Nevertheless that was something of a side-point, in that it wasn’t the dissing that the BCA complained about, it was the imputation that the BCA knew its members were pushing bogus treatments and was content to let that happen.

The Bowker case was slightly different.  In that it pitched scientist against scientist – and this time the allegations included a direct criticism of scientific method.  Calling a scientist’s methods incompetent and almost criminal would obviously be defamatory; impugning someone’s profession.  In this case, the husband-and-wife ptarmigan consultancy firm run studied the population of black grouse in an RSPB reserve and concluded that something was going very wrong, the grouse were dying off.  They had a paper on the subject published in a scientific journal.  The RSPB had to defend its own conservation techniques, and three of its staff compiled a critique of the article, sent it to those inside the RSPB who might have had to deal with the fall-out, and also to the journal itself.  Essentially the RSPB seemed to think it wasn’t the RSPB that was killing off its grouse, but the Bowkers…

Apparently the black grouse is a somewhat sensitive species – not surprising, given the be-tweeded Scots blasting seven shades out of them every August – and does not respond well to being tagged, or handled as a chick.  Which is what the Bowkers had been doing.  The RSPB’s people thought that this may – their emphasis – have had a deleterious affect on numbers and was an untried, untested method of census-ing black grouse.  The RSPB had evidently done its legal homework; the email was marked not for external circulation.

Nevertheless the Bowkers got a copy of the rebuttal via a co-author of the article.  Stung at being accused of following untested methods, they sued the RSPB.  The RSPB countered with a powerful defence; leaving aside the truth, the RSPB said its critique was covered by qualified privilege.  I.e. the RSPB had a right to defend itself, and those who read the RSPB’s grouse paper were those who had an interest in knowing the other side of the story.  If it could nail this, the Bowkers could only win if they showed the RSPB was being malicious.

In the end the RSPB issued a summary judgment application.  Why wait for trial?  There was an obvious win here.  The judge agreed.  The Bowkers claimed the RSPB’s criticisms had been circulated more widely, but couldn’t provide any evidence; those who told them they had seen the paper would not give evidence, for fear of the avian mafia.  Besides which, the Court considered that the RSPB was pitting science against science.  Accusing a technique of being untried was hardly defamatory, every technique that has ever been used was untried once.  That in itself is enough for a win, but the judge went further.  The Bowkers could not show malice; although that’s normally a matter for trial, the judge thought about what evidence could be available, and concluded that, realistically, there wasn’t any and could never be any.  The words themselves were measured and precise, they were based on true facts, the Bowkers had to show the malice and in the three years since the dispute got under way they had not found any evidence of it themselves.

So a quick strike-out from the judge.  Although the real fun in the case isn’t so much the facts, the in-depth investigation of grouse handling, the searches on email archive that the RSPB undertook or anything else.  It was the choice of solicitors for the RSPB.  I don’t know whether it was influenced by the firm’s excellent reputation, or whether there was a client relationship existing, or it picked the name out of the list like a granny choosing her Grand National horse; whatever the reason, it’s surely fitting that the RSPB was represented by Bird & Bird.  

Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10: policy judgment

It has been known for a long time that asbestos can cause mesothelioma.  Just one filament can give someone cancer.  A cancer that hibernates in the body for twenty years before striking.  A horrible, invariably fatal, illness.

Asbestos is still around in buildings and has to be treated with care.  Unfortunately, back when asbestos was first found to be carcinogenic, companies did not treat their safety responsibilities with the requisite care.  Over a period of decades, many workers fell ill, many contracted mesothelioma. 

So many of these workers issued proceedings against their employers, seeking compensation.  The employers sought to hide behind the doctrine of causation.  What the companies said was “you can’t prove that it was exposure to our asbestos that gave you cancer.” 

The problem is obvious.  You cannot bring a claim in negligence if the negligence didn’t cause your loss; you might be knocked over by a speeding motorist, but if you’d’ve been knocked over if he’d been doing the limit because it was your own fault for not looking, you won’t win.  So in these asbestos cases an employer could say “you worked for us for three years; you had other asbestos exposure; chances are, it was not one of our filaments that made you ill.”  On a balance of probabilities, a claimant is going to be in difficulties.

In the case of Fairchild, the House of Lords reached a pragmatic solution.  Looking away from the strict legal position for a moment, what had happened in the intervening years?  Employers told insurance companies that they might be at risk of asbestos claims; insurance companies hiked the renewal premium to take that into account.  So for years insurers had been building up their coffers to deal with such claims.  Now they were landing, the insurance companies were trying to deny liability.  Worse, in many cases, a single employee had been working for, say, half-a-dozen companies – all of whom had the same insurer.  So the insurance company was saying that because the claimant could not show which of the six companies caused mesothelioma, it was not responsible – even though it had to have been one of the companies it insured.

Therefore, in Fairchild, the House of Lords decided that the claimant could sue any of the companies that employed him.  They would all be liable, on the well-established ground that they had increased the risk of cancer.  There was a wrinkle in a later decision that tried to split the liability up pro rata – which meant that if 9 out of 10 employers had since gone bust, the claimant could recover only 10% of the damages it should have had – but that was legislated into oblivion.

The Sienkiewicz case was a slight variation of the Fairchild principle.  Mrs Sienkiewicz is the personal representative (and daughter) of Mrs Costello, who had died of mesothelioma; Mrs Costello had only been employed by one company that had exposed her to asbestos.  The Court held that that company, Greif, had only increased the risk of cancer by a slight amount (less than 20%); however the Court held that that was enough to make it liable for 100% of the claim.  Greif took it to the Supreme Court.  Surely it should only be liable if it increased the risk by more than half?  Normal causation principles?  The chances were Mrs Costello caught the disease naturally?

The Supreme Court disagreed.  Two principles came together in this one; the principle in Fairchild and the principle in McGhee (the latter being that causing a material increase in disease risk is enough).  Just because there was only one employer didn’t matter.  The Court did think it was a little harsh on Greif, but Parliament had made it clear that if someone had to bear the rough end of a judgment it should be the guilty, not the innocent, party.

Quite a narrow decision, it may only apply to mesothelioma rather than e.g. miners’ lung diseases.  At the very least though it will deliver a measure of justice to those dying of mesothelioma.

Edwards-Tubb v J D Wetherspoon Plc [2011] EWCA Civ 136: inexpertly done

In a trial, nobody cares about what you think.  You’re not there to think.  The only person allowed to think in a trial is the judge.  “What do you think caused the accident?”  “Oh, I think it was speeding…”  That will never be asked, you will never be allowed to answer.  You stick to the facts.

Unless you are an expert witness.  They are allowed to think.  This is because no matter how thoughtful the judge, they will not be able to think around causes of faults in things like nuclear reactors or foot and mouth or likelihood of recovery from an injury and so on.  So they get help.  Expert witnesses are allowed to think; they are allowed to give their opinions.

Because they are given a special status, their roles have to be described carefully.  They have to be given permission by the Court; who knows, the judge might find two opinions a little tricky and will demand one single expert, instructed by both parties, do the thinking for him.  More to the point, the Court wants to stop expert shopping.  I.e. you find the doctor with the most optimistic (or pessimistic) prognosis of your injury.  No good having a doctor who thinks your whiplash will fade in a week or two.  You want one who fears for your very ambulatory abilities.  Ramp up the damages.  That’s obviously not good for the Court.

So, the Court will give orders on how and whom you instruct.  You might need to nominate someone who might face a challenge (“Dr Depressive?  He’s biased…”).  Or you might need to change your mind, as your doctor is a bit too optimistic.

Which is what happened with Mr Edwards-Tubb.  Yes, that IS his real name, he DOES exist, this is not a Royston Vasey thing.  He fell over in 2005 whilst working for Wetherspoons; the company admitted fault.  The only spat was over the injuries.  No doubt Mr E-T had hurt his legs and knees; he however claimed he had whole body pain.

As per, the thing was faffed around until the claim was issued right up against the time limit; as per, each side instructed a medic; as per, they disagreed.  Thing is, there was a surprise.  Before issuing the claim, Mr E-T’s solicitors gave the names of three doctors they were going to choose from to Wetherspoons’ lawyers.  Again, as per your average personal injury claim.  However, when the expert reports were exchanged, Mr E-T’s report was signed off by a doctor who had not been named.  And it happened to mention that Mr E-T had been seen by a different doctor earlier.  One whose report – if there was one – had not been disclosed.  So Wetherspoons asked to see it…

Mr E-T’s solicitors said no.  The earlier report, if it existed, was privileged.  I.e. they had a right to refuse to show it, as it would reveal their tactics in the case.  Wetherspoons said that, in that case, it would ask the Court not to give Mr E-T permission to use this report.  On the basis that one of their original three doctors must have had a different view of the case. 

The Court of Appeal had a look at it.  The Court does have the power under the normal rules to demand a hidden expert report be dragged out of hiding – albeit only in rare circumstances.  One of those circumstances is when a party wants to change its mind over its expert, sometimes the price it has to pay is to show exactly why it wants to change its mind, usually because its expert has said “actually, your case is hopeless”.  As in this case, only it was slightly different – the other cases came when a party’s expert had been named specifically, or where a further examination (of person or property) was needed, or where the report had been obtained before going to Court; in this case Mr E-T hadn’t given the name of his expert, had already been re-examined, and had got the previous report when thinking about suing. 

But the principles, said the Court, were the same.  The whole ethos of the Court rules is to try to stop the gladiatorial combat and move towards amicable settlements.  That isn’t helped by a party instructing doctor after doctor until it finds someone who will say what the party wants.  More to the point, the expert’s duty is to the Court, not to the party.  So it helps the Court to see the earlier report.

Ergo, said the Court, the report should be disclosed.  Without doing so Mr E-T could not rely on doctor number 2.  A tricky tactical decision – should Mr E-T just go back and rely on his initial doctor, and leave the second one floating around somewhere, to try to prevent damaging aspersions being cast on the original?  Or does this unravel the whole case?  As yet, we don’t know.  What we do know is that the principle has been set.  If you need a second opinion, and the other side know you have a first opinion, you’ll probably have to show both.

Jones v Kaney [2011] UKSC 13: inexpert experts

The Court has been changing its attitude to negligence in the court room itself.  For a long time the idea that a barrister could be sued for negligence was unthinkable.  A barrister merely presented the law.  If the barrister made a pig’s ear of it, that was irrelevant to the result.  The Court would get the right decision.  What’s more, it stopped re-trying cases when someone was disgruntled that they’d lost.

That has changed.  The Court some years ago in the Hall v Simons case decided that barristers could be sued for negligence.  One major pillar down.  Now the question was whether expert witnesses could be sued as well.  Expert witnesses are the only people allowed in trials, apart from the judge, to have opinions.  Lawyers state the law and their argument; witnesses state the facts.  Only a judge will need help with complex medical or engineering matters, hence expert witnesses.  Usually one (at least) per party.  With a pre-trial meeting to get them to agree, or at least to agree to disagree.  Even narrowing down the areas of disagreement would be useful for the trial.

You may think on the face of it that they should.  If someone goes to Court based on a duff report, why should the expert be immune from their duffness?  Anything that makes them do their job better would be welcome.

On the other hand, what happens if an expert changes their mind?  Report goes in, they discuss with the other side, realize they may be mistaken.  If they change their mind, are they going to be sued?  Should they keep shtum and hope it goes away?  Or should they be encouraged by immunity to co-operate with the other side and get a just resolution?  The expert owes a duty to the Court as well as to the client, after all…why should they be inhibited from this?

As a result, for four hundred years experts had been immune from being sued.  No more.  The Supreme Court, by a 5-2 margin, has swept that away.

The facts (at least, those assumed by the Court to reach its decision) of the Jones case are dispiriting.   Mr Jones was sitting on his motorbike when he was hit by a drunk driver.  He sued, the big debate was about his depression.  His expert – Dr Kaney – said it was serious; the driver’s doc said it was an adjustment period.  The two doctors had their expert meeting, and Dr Kaney pretty much agreed with everything the other doctor said.  Why?  Turned out she hadn’t done her prep.  And she felt bullied into signing a statement with which she did not agree.  Mr Jones tried to change his expert, Court said no, and he settled for a lot less than he would have done had Dr Kaney not signed off the joint report.  So, Mr Jones sued Dr Kaney, who tried to get the claim thrown out on an immunity basis.  She won at every stage – until the Supreme Court stepped in.

The judgment is quite long, but mostly goes through the dicta in the cases where immunity had been firmed up, to see the reasons behind it; Phillips LJ was pretty unconvinced that there was a consistent line of reasoning, and seemed to think that there was immunity because everyone assumed there was immunity.  And went through some of the objections to removing immunity, dismissing most of them as being baseless.  To some extent that’s correct, a proper expert will do their job properly, and changing their mind is not evidence of negligence.

The problem is that the two dissenting opinions seem to me to be more persuasive.  Lady Hale asked whether this is really a Supreme Court matter, or should the Law Commission look at it in detail, and consider positions such as insurance for professional negligence in the round, rather than in an almost ad-hoc hearing?  Both her Ladyship and Lord Hope also expressed concerns about the reactions of the losers.  Will they go straight after their experts?  The removal of advocate immunity has certainly not led to an explosion of litigation against them, perhaps because the wise legal adviser will always build in an element of doubt, but as for experts, would collapsing under fearsome cross-exam lead to them being blamed – and therefore sued – with the result the whole thing is re-tried without the opponent?

The Supreme Court considered these points and dismissed them.  Without much in the way of reasoning.  Indeed the question of whether people would give up being experts if faced with being sued was dismissed with a few comments – based on a show of hands at an expert conference and a lack of evidence on the point.  I should have thought that this would have meant there should be more investigation into the position, rather than an ex cathedra judgment, but we are where we are.  And for a negligent expert, that’s right on the hook.

The upshot for Dr Kaney?  There is no finding of negligence against her.  The exact circumstances of her advice will be gone through at a trial.  This was only a preliminary issue with her looking for a quick win.  We await to see whether she really signed a joint report because she was bullied into it – or whether she had valid misgivings.

One area that the Supreme Court was keen to emphasize was that the case only applied to a “friendly” expert.  The opponent owes no duty to you.  One wonders if this will be further eroded; if you end up with a 10 day trial rather than a quick win because the other side’s expert spun a line of rubbish to the Court, could it be argued that you have suffered a loss as a result of that expert’s breach of duty to the Court and those before it?  Wasted costs orders to be made?