Steven Wilson v The Ministry of Justice [2024] EWHC 2389 (KB)

On 20^th September 2024 HHJ Melissa Clarke, sitting as a High Court Judge, handed down Judgment in this case. Giles Mooney KC, instructed by Angela Batchelor of Irwin Mitchell, appeared for Mr Wilson at the quantum trial which had been heard over 5 days in April 2024. The outcome of the case was a resounding victory for the Claimant who received damages of just under £5.5 million. This was £2 million more than his own Part 36 offer and £4.25 million more than the Defendant’s Part 36. In addition, the Defendant agreed to pay indemnity costs, not just from 21 days after the expiry of the Claimant’s offer, but from the date of the quantum expert joint statements. The case has received extensive press coverage largely because Mr Wilson was a serving prisoner at the time of his accident. This has led to much comment on why a criminal “deserves” such a high level of compensation. Whatever the contributors to the comments in the Daily Mail may think, the real question is why did the MOJ get this case so wrong that its offer was only 20% of the final award and such criticism made of its conduct that it agreed to pay indemnity costs?

Background

Mr Wilson was stabbed multiple times whilst working in the kitchen at HMP Chelmsford by a fellow prisoner. His attacker was serving life in prison for murder having killed his victim by stabbing him multiple times with a knife. Despite this conviction, and a failure to risk assess him, the attacker was allowed to work in the prison kitchen with access to knives. Against this background, it is unsurprising that the MOJ admitted liability early on in proceedings.

Mr Wilson sustained life threatening and life changing injuries including a spinal cord injury. After rehabilitation he was left with mild weakness in his left leg together with some tonal changes and spasticity with involuntary spasms. He also suffered from chronic pain around the stab sights in his back and PTSD. The parties had permission for the following experts:

Pre-Trial

The case progressed normally to Joint Statement stage with the parties anticipating settlement at a JSM thereafter. In the joint statements there was a large degree of agreement. The Psychiatrists were wholly in agreement. Mr Lenfield agreed almost all of Ms Way’s costings. There was little between the accommodation experts, who agreed the need for single story accommodation or the physiotherapy experts who agreed the need for future treatment. Whilst there was dispute between Mr Selmi and Mr Kumar on the timing and extent of any future deterioration in the Claimant’s condition and on life expectancy, these matters looked capable of sensible compromise by both sides reflecting the uncertainties of litigation. Similarly, the pain experts’ disagreements were within the bounds of the normal points made in cases of this type. In short, immediately post Joint Statements, it seemed almost inconceivable that this case would end up at trial.

It was at this point that the Defendant took a number of very aggressive decisions:

• It sacked Mr Lenfield and abandoned his evidence:
• It disclosed surveillance footage of the Claimant showing him walking between his house and parked car without walking aids;
• It served two new reports from Mr Kumar. One commented on the surveillance and stated that the Claimant was exaggerating his symptoms and had only minor disability. The other commented on the Claimant’s care needs, accommodation needs and equipment needs.
• It served a counter schedule based on Mr Kumar’s evidence about care, equipment and accommodation totalling about £950,000.
• It served a further report from Ms Keech discussing the surveillance footage and rowing back from her position in the Joint Statements.
• It served a further report from Mr Burton rowing back from his position in the Joint Statement.
• It attempted to exclude the urology evidence despite it being obtained by agreement on a joint basis.
• It made an application to rely on all of this evidence and to obtain a new care expert. This application was made and heard about a month before trial.

At the hearing of the application, the Defendant was refused permission to rely on Mr Kumar’s report dealing with care, accommodation and equipment (on the basis it was inadmissible being outside his field of expertise) and also refused permission to get a new care report. Permission was given to rely on the surveillance and the consequential reports by consent.

The Defendant then made its one and only Part 36 Offer of £1.25 million. This was rejected, the counter offer was made and the parties proceeded to trial.

The Trial

Whilst the Claimant certainly didn’t make the best witness and a number of inconsistencies in his evidence were exposed, the Defendant did not allege fundamental dishonesty in cross examination and hence it was clear that he was going to recover substantial damages in any event. However, the wheels really came off the defence case in the course of Mr Kumar’s evidence. Mr Kumar has an impressive CV and a long and distinguished career as a Spinal Cord Injury expert. Despite this, he had taken an increasingly hostile approach to the Claimant with each of the four reports (including the Joint Statement) he had written becoming progressively more aggressive. By his fourth report he was alleging conscious exaggeration of symptoms, invention of the spasm and arguing that the Claimant had only minimal care and equipment needs. These were not only in contradiction with his first report but all of the other evidence from all of the other experts in the case. In cross examination he initially tried to deny the contradictions in his reports before moving on to trying to minimise them. When caught out on a particular point about balance issues and after an excruciating passage of non-answers to questions, he finally accepted, when put to him, that he had lost “all objectivity”. He further accepted giving evidence he wasn’t qualified to give, making allegations of dishonesty and exaggeration which were wholly without merit and failing to mention parts of the surveillance evidence which supported the Claimant. In light of these concessions (and many other unsatisfactory parts of evidence, many of which are listed in the judgment), the Judge gave no weight to his evidence at all and accepted Mr Selmi’s evidence wherever there was dispute between the experts. She found that Mr Kumar had breached his duties as an expert.

The downfall of Mr Kumar utterly destroyed the defence case. Not only could they not rely on anything he said but it was clear that the MOJ had shown his reports to their other experts. Indeed, Mr Burton had based his second post Joint Statement accommodation report on Mr Kumar’s fourth, inadmissible report. This was clear from the wording of his report which mirrored the wording of Mr Kumar’s report. In cross examination he denied seeing the fourth report (which was not included in his list of documents) but eventually, when confronted with the wording of the two reports admitted that he had based his entire second report on the inadmissible evidence of Mr Kumar. The Judge took a very dim view of his evidence finding that he had tried to conceal the fact that he had seen the fourth Kumar report from the Court.     

Finally, Ms Keech, the defendant’s physiotherapist, had rowed back from her perfectly reasonable position in the Joint Statement having been shown the surveillance footage and Mr Kumar’s view of it. She stated that the footage showed a “remarkable recovery” from when she had examined the Claimant. This position was wholly untenable because any proper analysis of the footage revealed that despite not using any walking aids for the short walk to and from the car on the driveway, the footage did show the Claimant limping, losing his balance and using the wall and the car for support. Both Mr Kumar and Ms Keech admitted in cross examination seeing the loss of balance, limp and need for support but neither could provide any real explanation as to why they had failed to mention it in their reports. Ms Keech, like Mr Kumar and Mr Burton was criticised for a loss of independence.

By contrast the Claimant’s experts were all praised by the Judge for their evidence.

Lessons  

To misquote Oscar Wilde – to have one expert fail to comply with his duty may be regarded as misfortune, to have two looks like carelessness but to have three? As the Judge noted at paragraph 102 of her Judgment:  

 Mr Burton should not have allowed his initial assessment of Mr Wilson’s accommodation needs as summarised in the joint statement, which I am satisfied was both independent and fairly arrived at on the evidence before him, to be corrupted in this way and the solicitors in the Government Legal Department should not have asked it of him. I consider that there should be some introspection on the part of the Government Legal Department about this, and about whether Ms Keech was also placed under any pressure to move away from her initial independent and fair approach as set out in her initial report and joint statement, to the more partisan and, in parts, unfair analysis of the video surveillance (emphasis added).

Of course we will never know exactly what happened after the Joint Statements to lead the MOJ to take such an uncompromising position and its experts to collectively fail in their duty to the Court. There are however clear lessons from this case in relation to expert evidence:

• Never use the expert to reverse engineer the case. The lawyers came up with figures they were prepared to pay and then asked Mr Kumar to agree with them. This compromised him and was fertile ground for cross examination.
• Ensure the experts stay within their expertise. In this case it seems that the MOJ thought that it could use a pliable expert, Mr Kumar, to cover the problems with its quantum evidence. All this did was take Mr Kumar outside his expertise and again left open goals in cross examination.
• Properly analyse the material you are relying on. The surveillance footage was superficially helpful to the Defendant because the Claimant was not using walking aids. However, a closer look clearly showed exactly the issues the Claimant was complaining of – loss of balance, fall risk and a limp.
• Make sure the experts comply with their duty to consider issues which do not support the paying parties’ case. One of the most damaging points in cross examination for Ms Keech and Mr Kumar was their heavy reliance on the helpful parts of the surveillance for the Defendant whilst wholly ignoring the unhelpful points.
• Where material that subsequently becomes inadmissible has already been shown to an expert, admit it and deal with it.

Conclusion

Mr Wilson has received the compensation that he deserves given his horrendous injuries and on-going disability. That he has received £2 million more of tax payers money than he was prepared to walk away for and the substantial costs of trial were incurred together with a lengthy period of indemnity costs, was a result of the MOJ either blindly accepting an expert over-reaching or pushing an expert into unsustainable positions that have probably cost him his career as a medico-legal expert.