The Dekagram: 11th August 2025

There seems to have been a rash of cases involving criticism of expert evidence lately, and this week is no exception; Dominique Smith brings us news of yet another case in which an expert has been found wanting. Meanwhile, Robert Parkin tells us of more positive developments in the field of non-surgical cosmetic procedures; will we finally see some regulatory oversight in this long-neglected area?

Experts Behaving Badly – Again

In the last few weeks, the actions of experts and their compliance with their CPR Part 35 duties have been under the microscope in the High Court. Last week, Sarah Prager KC considered some of the issues that arose in DHV v Motor Insurers’ Bureau [2025] EWHC 2002 (KB), where an expert was deemed to have copied passages from another expert’s report. This week, another judgment where an expert has fallen into difficulty at trial has graced our desks.

Tosh v Gupta [2025] EWHC 2025 (KB) concerned a clinical negligence claim brought by the claimant against the defendant who was a general, colorectal and laparoscopic surgeon. The claimant was referred to the defendant for investigation of rectal symptoms in 2019 and was diagnosed with haemorrhoids. She agreed (on the defendant’s advice) to undergo a ligature haemorrhoidectomy. Unfortunately, the claimant developed a rare but serious complication following the surgery, which left her with life changing consequences.

The matter came to trial in June 2025 before Sarah Clarke KC. Liability and causation remained in dispute between the parties. The parties each obtained their own expert evidence and their respective experts (Mr Thompson for the claimant and Professor Phillips for the defendant) were called to give oral evidence.

During Mr Thompson’s evidence, he said that he had not carried out many haemorrhoidectomies and had never carried out a ligature haemorrhoidectomy. He stated that after 2010 he had not operated on haemorrhoids at all and agreed that it was a “reasonable point” that it was difficult for him to identify the standard of a reasonably competent haemorrhoid surgeon in 2019. In addition, his evidence fell into further difficulty as the Judge considered he had not acted in accordance with his duties under Practice Direction 35:

• Mr Thompson’s expert report, dated July 2021, referred to him having read the claimant and defendant’s witness evidence, when this was only served in April 2024. His response was that when the witness evidence was served, he did have regard to it, but his opinion had not changed since he wrote his 2021 report. This, in the Judge’s view, did not explain how he was able to have regard to evidence in 2021 that did not come into existence until 2024.
• Neither of his reports made any reference to the defendant’s case and he had not analysed the defendant’s case.
• Mr Thompson agreed that the use of the Grade 1-4 grading system was consistent with the practice of a responsible body of consultant colorectal surgeons. He was asked why therefore he had asserted in his first report that the defendant graded the claimant’s haemorrhoids based on size alone. Mr Thompson agreed that if this is what the defendant did then he was operating a unique grading system, and he was not aware of any other surgeon who would do that. He was unable to explain why he had asserted that the defendant had done this or what evidence there was to support it.
• In his first report, Mr Thompson stated that in his opinion the claimant’s haemorrhoids were Grade 1. In the joint statement however, he stated that “it is likely that the claimant had Grade 1-2 piles”. Despite this, in cross-examination he denied that his opinion had changed.
• It was put to him that when he wrote his first report, he wrongly thought that the claimant’s anal fissure was not healed and therefore needed treating. He said, “I thought constipation was a cause and I thought that if the fissure split then it might cause bleeding – sorry I didn’t make that clear in my report”. The Judge considered it was clear at the time he wrote that report that he thought that the fissure was not healed and considered it was “concerning that Mr Thompson was unable to make this reasonable concession and admit that he was wrong”.
• It was pointed out to Mr Thompson that in the joint statement in response to a general question (namely ‘please explain how piles are graded’), he gave a 32-paragraph answer in which he focused on his opinion supporting the claimant’s case, rather than answering the question. He replied: “yes I am afraid I did – it is a piece of advocacy for the claimant”.

The Judge considered that she “unhesitatingly” preferred the evidence of Professor Philipps where there was a conflict between the two experts and the claimant’s claim was ultimately dismissed.

This case again highlights the importance of ensuring that experts are fully aware of their Part 35 duties and are in fact complying with them. Whilst the expert in this case fell into several difficulties, it is particularly concerning that there was an admission from him that a passage of a joint statement was a piece of advocacy. The CPR plainly does not permit experts to assume the role of an advocate, thus it surprising that some experts (as in this case) are still straying into that territory. To do so undermines the fundamental principles of objectivity and independence that all experts must possess. May this case be a lesson to all experts of the perils of failing to fully understand their duties to the court.

About the author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

A New Approach to Regulation of the Non-Surgical Cosmetic Procedure Industry?

Based on Department for Health and Social Care ^[1] figures, the cosmetic industry is staggering in scale. It supported a total GDP contribution of £24.5 billion and tax contributions of £6.8 billion to HM Treasury in 2022. If right, it is an industry on approximately the same scale as the aerospace sector, and is in the ballpark of five times the size of the agricultural sector.

However, at present, very significant parts of the industry are unregulated to a significant extent. No specific training, licencing, or qualifications are required to perform non-surgical cosmetic procedures. The businesses operating those procedures are often not required to have insurance or other similar safeguards for their customers.

Without wishing to denigrate the very many conscientious and capable individuals operating in this industry, rogue operators can, and do, take advantage of this lax regulatory position.

Most of those are simple cowboys- setting themselves up to provide cosmetic procedures that they are not properly trained in, and with a ramshackle (if any) business structure. In the most extreme cases, however, some operators have been controlled by organised crime or fronts for illicit immigration. 

The kind of issues that this position can generate for the customer is tragically foreseeable. Recent caselaw identifies cases of patients burned with a mishandled laser tattoo remover, shocked with a mishandled electrolysis hair removal device, and (most commonly in the author’s professional experience) scalded with excessively heated wax for the purposes of hair removal, as a result of poor training or equipment on the part of the provider.

The risks will often not be explained to the patient in advance, adequately or at all, and they may face entirely improper (and, in any other context, entirely illegal) pressure to sign up there and then. Unethical financial compensation schemes may be used within the business to reward prompt sales.

In cases such as these, the patient is left with severe pain, psychological symptoms, and often permanent, highly visible, scarring. In the worst case scenario, the consequences may be fatal^[2].

The patient or their family, understandably, wishes to pursue a claim for damages – one that would, in principle, almost certainly succeed for a significant amount.

However, the claimant is then confronted with the sobering reality that a) no or no adequate insurance has been obtained by the provider and b) the provider was, in fact, a short-lived limited company with few, if any, assets, against whom any judgment would be unenforceable, and c) the individual provider cannot be stopped – short of having committed a criminal offence – from simply moving on to find new patients.

That, of course, is as bad as it gets, and, again, this will not be reflective of the industry as a whole. Even so, that this is possible at all is grim enough, and caselaw suggests that it is not as uncommon as it may comfort us to think.

Attention is, however, being paid to this situation. Under s.180 of the Health and Care Act 2022^[3], the Secretary of State acquired the right to make regulations introducing both personal and premises licencing for specified cosmetic procedures.

Those specified procedures are non-surgical cosmetic procedures generally, and specifically include procedures involving:

(a) the injection of a substance;

(b) the application of a substance that is capable of penetrating into or through the epidermis;

(c) the insertion of needles into the skin;

(d) the placing of threads under the skin;

(e) the application of light, electricity, cold or heat.

The DHSC intends^[4], following a consultation, to introduce these regulations. The key ideas appear to be:

1. Requiring that the most dangerous procedures (such as “Brazilian butt lifts”) be performed only by CQC licenced personnel.
2. Licencing relating to Botox injections.
3. Specific protections for under-18s.

This is certainly very welcome, but the author questions if this goes nearly far enough. The 2022 Act permits the imposition of personal and premises licencing, and, at present, this does not seem to be proposed. Nor does mandatory insurance appear to be contemplated, nor requirements for adequate training in other, less (but still) dangerous procedures.

Even so, this is clearly a proposal at a very tentative stage and it would be unfair to be unduly pessimistic- this is an issue which has required attention for a very long time, and that attention, if nothing else, makes for a good start. 

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

[1] https://www.gov.uk/government/consultations/licensing-of-non-surgical-cosmetic-procedures/the-licensing-of-non-surgical-cosmetic-procedures-in-england

[2] https://www.bbc.co.uk/news/articles/cqlr0l45d0po

[3]https://www.legislation.gov.uk/ukpga/2022/31/section/180#:~:text=180Licensing%20of%20cosmetic%20procedures&text=(b)prohibiting%20a%20person%20from,person%20has%20a%20premises%20licence.

[4] https://www.gov.uk/government/news/crackdown-on-unsafe-cosmetic-procedures-to-protect-the-public