EXPERTS BEHAVING BADLY: WHY RECENTLY CROSS-EXAMINED EXPERTS SHOULD NOT E-MAIL THE OTHER SIDE’S COUNSEL…

In D (A child : parental alienation) [2018] EWFC B64 HHJ Clifford Bellamy had to deal with the unusual situation in which an expert witness e-mailed counsel who had cross-examined him.

“I was surprised, therefore, to receive an email from Mr Hadden before court on 5 ^th October (the final day of this hearing) in which he copied to me an email he had received from Mr Spooner the previous afternoon. The email had been sent at 16.33pm, within an hour of Mr Spooner completing his evidence. The content of Mr Spooner’s message comprised just one word: “Muppet!””

THE CASE

The judge was giving judgment in a “hard-fought” case in relation to where a child could live.  One expert witness gave evidence in relation to parental alienation.  After being cross-examined by counsel for one of the parents that expert sent that counsel an email.

196.  In my judgment, Mr Hadden’s cross-examination of Mr Spooner was unexceptional. He put his client’s case and put it well. Although it would have been preferable had he not used the word ‘hobbyhorse’, the word is not a term of abuse. Mr Spooner made no complaint at the time. I was surprised, therefore, to receive an email from Mr Hadden before court on 5 ^th October (the final day of this hearing) in which he copied to me an email he had received from Mr Spooner the previous afternoon. The email had been sent at 16.33pm, within an hour of Mr Spooner completing his evidence. The content of Mr Spooner’s message comprised just one word: “Muppet!”. Mr Hadden has assumed that his use of the word ‘hobbyhorse’ may have been the prompt that led to Mr Spooner sending this email.

197.  The email was gratuitously offensive. It was unprofessional. It should not have been sent. I considered with the advocates how I should deal with it. I also had a conversation with the Family Division Liaison Judge for the Midland Circuit, Mr Justice Keehan. Having taken account of the views expressed to me I came to the conclusion that it would not be appropriate to discount the whole of Mr Spooner’s evidence, give permission to the parties to instruct an alternative expert and list the matter for a retrial. The delay in taking that approach would have been wholly disproportionate. These proceedings have already been ongoing for almost two years. Putting the case back for what could easily have been more than another six months would not have been in the best welfare interests of D for whom these proceedings have already been ongoing for far too long. Clearly it will be necessary for me to take account of Mr Spooner’s ill-advised comment when I come to evaluate the weight to be attached to his evidence.

THE RESULT

249.  Second, whilst I also understand why Mr Hadden submits that Mr Spooner is a dogmatic expert, my understanding of the point being made by Butler-Sloss P in Re U: Re B (serious injury; standard of proof) [2004] 2 FLR 263 is not that the dogmatic expert’s opinion should be completely ignored simply on the basis that he is dogmatic but rather that the court should tread carefully in deciding what weight (if any) to attach to the evidence of that expert.

250.  Mr Hadden criticises Mr Spooner for failing to consider a range of possibilities which might explain the sad history of this case, instead insisting that this is a case of an alienated child. Although he does not say so in these terms, his position appears to be that Mr Spooner is the archetypal dogmatic expert whose views should be wholly discounted. I don’t accept that analysis. I have come to the conclusion that on a proper analysis of the evidence in this case the question is not whether Mr Spooner is being dogmatic but whether his assessment is unreliable. In my judgment it is not. Whilst Mr Spooner’s inappropriate email to Mr Hassen requires judicial condemnation it does not mean that his assessment and conclusions should be simply dismissed out of hand