Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 34
Expert admits that his report amounted to
“a piece of advocacy for the claimant” - how
did this impact the outcome of the case?
by BondSolon
Introduction
Were there any other issues with the
evidence of the claimant’s expert?
In Tosh v Gupta [2025] EWHC 2025 deputy high
court judge Sarah Clarke KC had to decide whether
the defendant, a consultant general colorectal and
laparoscopic surgeon, had been negligent in the way
he graded the claimant’s haemorrhoids, and in the
subsequent advice he gave on the best way to treat
them.
The claimant’s expert also undermined the
credibility of his evidence by not fully addressing the
defendant’s side of the case. His witness statement
dated 21 July 2021 referred to him having read the
claimant and defendant’s witness evidence. However,
these were only served in April 2024.
The expert witness for the claimant in this case
was a retired general and colorectal surgeon with
over 25 years’ experience in a district general
hospital. He admitted he had not done many
haemorrhoidectomies and had never done a ligature
haemorrhoidectomy, which was the procedure in
issue in this case.
“He said that when the witness evidence was served,
he did have regard to it, but his opinion had not
changed since he wrote this 2021 report. This
does not however explain how he was able to have
regard to witness evidence in July 2021 when these
statements did not even come into existence until
2024,” the judge said. “It was also pointed out to him
that neither this expert report, nor his subsequent
report dated 4 February 2022 made any reference
to the defendant’s case and nor had he analysed the
defendant’s case.”
What was the judge’s main issue with the
evidence of the claimant’s expert witness?
A key red 昀氀ag for the judge in hearing the claimant’s
expert’s evidence was that he overtly admitted that
parts of his report amounted to “a piece of advocacy
for the claimant”. This was in direct contravention of
CPR 35, which calls for experts to remain objective
and unbiased, sticking to the facts of the case.
The expert accepted that his evidence had not
addressed the defendant’s case and that he was
under a duty to assess the arguments on both sides
and weigh them up fairly. He argued, however, that
he had done despite not referencing the defendant’s
arguments in his reports.
Under cross-examination, the expert was asked
whether it would be reasonable to recommend surgery
if the claimant had grade 3 or 4 haemorrhoids. He
replied saying that it would be. However, when he
was asked why this was not mentioned in either of
his reports or in the joint statements, he agreed it
should have been and that its omission was a failure
to comply with his duty to the court. “I think that’s a
reasonable comment,” he told the court.
Elsewhere, the expert failed to admit he had changed
his opinion and been wrong in his interpretation of
some of the evidence on the claimant’s condition.
“Again, it is a matter of concern that [the expert]
was unwilling to admit what is obvious to any reader
– which is that he has completely changed his mind
by the time of the joint statement… Instead, [the
expert] gave a confusing and rather incoherent
response,” the judge pointed out in her ruling.
Due to the poor standard of the expert’s evidence
and the fact that the defendant’s expert, had more
relevant experience, the judge said, “where there
is a con昀氀ict between the evidence, I unhesitatingly
prefer the evidence of [the defendant’s expert]”.
EXPERT WITNESS JOURNAL
31
DECEMBER/JANUARY 2025-2026
