A conflict is not automatically disqualifying. Experts sometimes treat conflict checks as though the only options are complete independence or an inability to act. That is too crude. Medicine is a small professional community, particularly within specialist disciplines. Consultants may have trained together, worked at the same trust, served on committees or published jointly. A psychologist may once have supervised another practitioner. A surgeon may know the defendant professionally without having any close relationship with them.
These connections do not necessarily prevent independent evidence.
The important distinction is between a connection and a material conflict capable of compromising the evidence. A serious conflict may make the expert unsuitable, but that assessment should not be made privately by the expert. Disclosure allows the instructing solicitor, the opposing party and, where necessary, the court to consider the position before relying upon the report. The expert who says, I did not think it was relevant, has made the very decision that should have been left to others. Independence must also be visible.
Under CPR Part 35, an expert’s duty is to help the court on matters within their expertise. That duty overrides any obligation to the person instructing or paying them. Expert evidence should be independent, objective and unaffected by the pressures of litigation.
Those principles explain why the court permits an expert to offer opinion evidence at all. That privilege depends upon the court being able to see that the opinion is genuinely independent.
A concealed relationship weakens that assurance, even if the clinical reasoning is sound. It may suggest that the expert failed to recognise the risk, misunderstood the duty or preferred that the relationship was not examined.
The conflicts most easily missed.
Obvious financial interests are rarely the main difficulty. Most experienced experts would recognise that owning part of a company involved in the litigation, receiving outcome-dependent payment or having a direct financial interest in a party would require immediate disclosure and withdrawal.
An expert may previously have treated the claimant. They may have advised the defendant organisation on an unrelated matter. They may undertake consultancy work for the medical reporting organisation that arranged the instruction. They may have prepared an earlier screening opinion. They may also receive a substantial proportion of their private income from one solicitor, insurer or agency. None of these circumstances proves bias. Some will have little bearing on the instruction. Others may be managed through disclosure. A few will make continued involvement inappropriate.
Medical experts should consider, when first instructed and throughout the proceedings, whether any personal interest or potential conflict may affect, or call into question, their ability to provide independent evidence. This includes previous professional or personal involvement with a party. A conflict check is not a form completed once and forgotten. New parties may be joined. Further records may reveal names not apparent at the outset. The expert may recognise a colleague, institution or former patient only after reviewing the papers. Disclosure remains necessary at that stage; however inconvenient it may be.
Familiarity is not partiality.
An expert need not withdraw simply because they recognise a name or once attended the same professional meeting as another clinician. Specialist evidence should not become impossible because the field contains relatively few practitioners. The proper question is whether the connection could reasonably affect, or call into question, the expert’s ability to act independently. Context matters. A brief professional encounter ten years ago is different from an ongoing commercial relationship. Membership of the same royal college is different from serving together on a committee examining the issue before the court. Having once worked at the same hospital is different from being a current colleague or close collaborator.
The response should be a factual disclosure, not a defensive essay. State the nature of the relationship, whether it continues and why the expert believes it does or does not affect the instruction. The solicitor can then decide whether further action is needed.
A declaration that “no conflict exists” is not always sufficient. It gives the conclusion while withholding the facts needed to test it.
Solicitors cannot outsource the check.
The expert carries primary responsibility for identifying conflicts. The solicitor, however, should not assume that a standard clause in the letter of instruction has dealt with the matter. A useful enquiry names the claimant, defendant, relevant clinicians, organisations, insurers and other known parties. It asks about prior treatment, employment, consultancy, financial relationships, previous instructions and opinions already given. The enquiry should be repeated when the case changes. Where a conflict is identified, the correspondence should be retained. If the expert continues, the reasons and any assurances should be clear. The purpose is to show that the issue was recognised, examined and handled openly.
Late disclosure changes the case.
Once a previously undisclosed relationship emerges, the dispute rarely remains confined to that relationship. The opposing barrister may examine the expert’s instruction history, fee dependence, previous reports and communications with the instructing party. The court may question whether other relevant information has also been withheld.
Replacing the expert may cause delay, duplicated costs and procedural applications. Continuing may expose the evidence to sustained challenge. The court may place reduced weight on the opinion or refuse to rely upon it. These consequences do not arise because professional connections are inherently improper. They arise because expert evidence depends upon candour.
Early disclosure often makes a manageable issue unremarkable. Late discovery can make the same issue appear calculated. The safest question is not, “Do I believe this relationship has influenced me?” It is, “Would the court expect to be told?”
Disclosure is not an admission of bias. Silence is an invitation to suspect it.
