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Expert Witness’s Statement of Truth to be strengthened

In our newsletter of April 2019, we gave a warning of an almost inevitable jail sentence for expert witnesses and their instructing solicitors if in contempt of court by making or causing to be made, whether deliberately or recklessly, a false statement in a document verified by a statement of truth without an honest belief in its truth. We quoted the Court of Appeal in looking at the suspended sentence handed down by the judge (Liverpool Victoria Insurance Co. Ltd v Zafar [2019] EWCA Civ 392):

We say at once, however, that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient.”

A change to be made to Part 35 of the Civil Procedure Rules (‘CPR’) underlines that the Ministry of Justice stands firmly behind the judges. Part 35 and its accompanying Practice Statement relate to Experts and Assessors and set out what is required from an expert witness’s report. Paragraph 3.3 of the Practice Statement states an expert witness report must contain a statement of truth. At present, a statement of truth must say:

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”

As from 1 October, 2020 a further sentence must be added:

I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

This must bring it home to expert witnesses that they are to give their true independent view on the matters before them and not give an opinion tainted by the requirements of the party paying them.

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