Nadia Whittaker successfully defends a professional negligence claim against Professor Marks made against him in his capacity as a single joint medico-legal expert giving evidence at the Employment Tribunal
Appearing before Mrs Justice Lambert DBE in Radia v Marks [2022] EWHC 145 (QB), Nadia Whittaker instructed by Edward Dixon of Medical Protection Society is successful in defending a professional negligence claim made by Mr Milan Radia represented by Dr Anton van Dellen of Fraser Chambers against Professor Marks who appeared as a single joint expert in Mr Radia’s Employment Tribunal case in 2016.
Mr Radia worked as a research analyst in the equity market for a global investment banking firm, Jefferies International Limited between 2006 and 2017. On 19 November 2009, he was diagnosed with Acute Myeloid Leukaemia, which resulted in his admission to hospital for treatment. He remained an in-patient until 16 April 2010 and then returned to work on a phased return basis in late June 2010. In May 2015 he commenced proceedings in the Employment Tribunal pursuing a case against Jefferies for alleged disability discrimination and a failure to make reasonable adjustments. Professor Marks was instructed as a single joint expert to opine on the issues of Mr Radia’s fatigue following treatment for Acute Myeloid Leukaemia, which were relevant to the extent of his disability. He provided a report and gave oral evidence in the Tribunal in 2016.
In its liability judgment Radia v Jefferies International Limited Case Number 2201358/2015, the Tribunal dismissed Mr Radia’s claim on merits and also found him to have been dishonest. In a separate judgment Radia v Jefferies International Limited Case Number 2201358/2015, 2207838/2016, the Tribunal made a determination that Mr Radia was liable for Jefferies’ costs in part because he acted dishonestly, but in any event because he persisted with his claim despite knowing from the outset that it had no reasonable prospects of success. The Tribunal found that Mr Radia had acted unreasonably by telling lies which were “deliberate, serious and central to the case” concerning his weight following chemotherapy and a holiday in Mexico in May 2011 which he had alleged he had been “forced to miss”. Mr Radia did not appeal the liability judgment but did appeal albeit unsuccessfully the costs decision to the Employment Appeal Tribunal. He also sought permission to appeal from the Court of Appeal which was refused by Lord Justice Bean on 20 November 2020. Following a contested detailed costs assessment, the Tribunal determined Mr Radia’s costs liability to Jefferies in the sum of £600,672.66.
Having been unsuccessful in his appeal of the Employment Tribunal’s decision on costs, Mr Radia brought a claim in the High Court in professional negligence against Professor Marks, alleging negligence in misreporting Mr Radia’s own account of his chemotherapy-related weight loss during medico-legal examination and that Professor Marks then compounded this error by not undertaking a competent review of the medical records which would have revealed the error in the report and/or failed to take steps to correct his mistake. Mr Radia advanced the claim against Professor Marks for the whole of his liability on costs to Jefferies on the basis that in the absence of the alleged negligence in respect of how the weight was reported by Professor Marks, Mr Radia would not have been found dishonest.
Professor Marks accepted that he made a mistake in not identifying Mr Radia’s weight within the medical records but contended that he was entitled to take Mr Radia’s own account of it at face value. It was denied that the scope of his duty extended to protecting Mr Radia from the consequences of his own dishonesty or that the admitted error amounted to a breach of duty. Causation was also denied on the basis that the finding about the weight was not the only basis upon which the Tribunal formed the view that Mr Radia was dishonest and that, in any event, the order for the entirety of Jefferies’ cost was made on the basis of the finding that Mr Radia should have known at the outset that his claims had no reasonable prospects of success.
The Judge started by stressing that this professional negligence action “cannot be used as a means of mounting a collateral attack upon the findings of the Tribunal, either the liability decision or the costs decision”, although Mr Radia “came, at times, perilously close to arguing that some of the Tribunal’s findings were wrong, even setting aside issues of credibility” (paragraph 56).
In her substantive analysis, the Judge followed the six-point plan identified in Meadows v Khan [2021] UKSC 21 and its linked case Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 on the basis that this situation represented a novel claim (paragraph 57).
On the scope of duty, the Judge asked herself not “whether the defendant owed the claimant a duty of care but whether the harm or loss claimed falls within the scope of that duty” (paragraph 59). Having identified the loss or harm asserted by Mr Radia as “the Tribunal’s finding that the claimant was a dishonest witness and had been dishonest in his interactions with Jefferies”, the Judge held “without hesitation” that the scope of the expert duty did not extend to protecting Mr Radia from the risk of an adverse credibility finding, or a finding of dishonesty (paragraphs 60-63).
Although the finding on the scope of duty disposed of the claim, the Judge went on to consider breach of duty. Master Yoxall having been persuaded by Mr Radia at the case management conference to give permission for expert evidence for the purposes of this claim, the Judge had the benefit of expert evidence from Professor David Dodwell, consultant clinical oncologist specialising in breast oncology, on behalf of Mr Radia and from Dr Robert Marcus, consultant haematologist and a specialist in cancers of the blood, on behalf of Professor Marks.
On the issue of expert evidence, the Judge observed:
- I intend no criticism of either of the experts, both of whom I am quite satisfied were doing their best to assist me by answering the questions posed by counsel. However, there was at times a sense that they were addressing issues in a different case to the one before me. This is not a re-trial of the issues before the Tribunal which had at its heart the question of whether the claimant had suffered from a significant degree of post AML fatigue such that he was less able to do his job than others.
- The relevant breach (and linked factual causation) issues for me are quite discrete. They concern: first, what the claimant told the defendant during the consultation on 22 March 2016 and specifically when he said that his weight had been 50 kg; second, whether the defendant’s admitted mistake in not picking up the record of weight in the hospital notes was a breach of duty; and third, what should have been done by the defendant in the event that he had picked up the reference in the records. Whether the expert report should have been more detailed, whether it should have included reference to the claimant’s weight two months before diagnosis or at the time of his return to work are not relevant to the issues before me save to the extent that they impact upon any of the three questions. Likewise whether the report should have sought to reconcile and explain the reference to the weight of 35 kg, is not an issue that I need address. Nor am I concerned with whether the claimant was suffering from post-treatment fatigue or not.
- The first question is one of fact. The second and third questions are matters for me to judge and to which the expert evidence is, at best, peripheral. Generic issues concerning the standard of care of an expert, for example: whether in general medical records should be checked or re-checked; the structure of a medico-legal report; whether sources of information should be referred to, are not it seems to me matters within the expertise of a medical expert. Putting it bluntly, neither Professor Dodwell nor Dr Marcus were competent to give expert evidence on the provision of expert evidence. Setting aside the difficulty of determining how the expertise of such a person could be judged (whether by the number of reports written; whether the person was a member of the Academy of Experts or had taken a course in expert reporting) these generic issues are ones for the judge to evaluate taking into account CPR 35. The expert evidence has provided me with only marginal assistance in resolving this case.
Factually, the Judge found that Professor Marks recorded what was reported to him by Mr Radia correctly (paragraph 69). On the issue of whether there was a breach of duty in not picking up Mr Radia’s weight from the records, the Judge concluded as follows:
- I have considered the expert opinions with interest but conclude that the issue of whether the failure to pick up the weight reference in the hospital notes is, essentially, a matter for me. The defendant accepts that it was a mistake. Both experts are in agreement that it would have been preferable. However, I do not find that it was a breach of the standard of care to pick up the references in the notes to the discharge weight. The volume of records was large. As the defendant told me, and I accept, his review of the records could not be limited to only those which concerned the claimant’s weight: there were several hundred pages of blood results which he also had to examine for the purpose of ascertaining whether the claimant’s fatigue could be due to a contributory cause (anaemia, renal impairment). The records were provided to the defendant late in the day. It is clear that they had not been organised, let alone paginated by the claimant or his solicitors which would have made them more time consuming to review. No chronology was provided and no attempt made by either the claimant or the solicitors to help the defendant navigate his way through the emailed tranches of records. As the defendant told me, ultimately, even if he had picked up the weight references in the records it would not have altered the thrust of his report which was that the claimant had suffered from post treatment fatigue. For all of these reasons, I do not find that it was a breach of duty to fail to identify the weight references in the records.
The Judge found the submission that “the defendant was negligent because he failed to maintain his opinion when questioned in the Tribunal” made by Dr van Dellen on behalf of Mr Radia “unsustainable” on the basis that “The expert’s duty is to answer the questions in a manner consistent with his overriding duty, not to stick to his guns when the underlying basis for that opinion shifts” (paragraph 75).
Dealing with causation, the Judge found “without hesitation” that “if the discrepancy had been picked up, the appropriate course for a single joint expert would have been to have recorded both weights in the report and leave it at that” (paragraph 77). She went on to reject Mr Radia’s wider case on causation, which was that “but for the defendant’s failure to record accurately what the claimant had told him and/or his failure to check the medical records, the Tribunal would not have found the claimant dishonest and would not have made the adverse costs order” (paragraphs 78-82).
Having rejected the claim on three separate bases (the scope of duty, breach of duty and causation), the Judge did not consider it necessary to go into the duty nexus question and the legal responsibility question (including remoteness of damage and the defence of illegality) in the Khan six-point plan.
Key messages from the judgment:
- Important clarification of the scope of duty of an expert, which does not extend to protecting an instructing party from an adverse credibility finding.
- A reminder that the reason why there is no conflict between the duty owed by an expert to his client and his overriding duty to the court in CPR 35(3) – in the words of Lord Dyson in Jones v Kaney [2011] UKSC 13 at [99] – “His duty to the client is to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline. This includes a duty to perform the overriding duty of assisting the court. Thus, the discharge of his duty to the court cannot be a breach of duty to the client”.
- The Court does not require expert evidence to resolve the issue of breach of duty where the allegations concern the accuracy of the data relied upon to reach the expert opinion in question. This issue is not within the competency of the experts and is instead a generic issue for the Judge to evaluate taking into account CPR 35.
- An acknowledged error in failing to pick up some relevant information from the medical records does not necessarily amount to a breach of duty by the expert. The Court will take context into account in reaching the decision as to whether or not such error amounts to a breach of duty. The relevant circumstances include the manner in which the information/records are presented to the expert, the time constraints under which the expert operates, whether the information in question is also available directly from the claimant and the extent to which the omitted information would have altered the expert opinion.
- The case cannot succeed without causation being established both in a narrow sense as to whether factually the sequence of events would have been any different and in a wider sense that the claimant must establish that the outcome complained of would have been avoided. Here, in a narrow sense, the finding of dishonesty was based on more than the issue of weight and, as such would have been likely to happen in any event; in a wider sense, the costs order was based on a finding that Mr Radia knew from the outset that his case had no reasonable prospects, meaning that the Tribunal would have ordered Mr Radia to pay costs irrespective of the finding of dishonesty.
- The claimants must be prepared that the Court will apply the Khan six-point plan in its analysis of liability in a novel situation such as this.
