Declaring a conflict of interest: experts and Environmental Protection Act 1990 prosecutions

In 2019, Sarah Salmon discussed the use of expert reports in Environmental Protection Act 1990 (“EPA 1990”) prosecutions and how instructing an expert without the requisite expertise can be fatal. Here she considers the impact on such a prosecution when there is a failure to disclose a conflict of interest within an expert’s report.

Recently, the London Borough of Brent faced section 82, EPA 1990 proceedings. Following cross-examination of the prosecution’s expert and partial cross-examination of the complainant, the prosecution applied to withdraw the summons. The main issue was the declaration within the expert’s report confirming there was no conflict of interest about which the court should be made aware. This was called into doubt when Brent undertook investigations on Companies House which showed a clear link between the solicitors acting for the prosecutor and the company instructed to provide the expert report.  

Criminal Procedure Rules

Expert evidence is governed by Part 19, Criminal Procedure Rules (CrimPR). An expert must help the court to achieve the overriding objective by giving opinion which is, inter alia, objective and unbiased. Experts should be independent.

Under CrimPR r.19.3(3)(c), a party who wants to introduce expert evidence otherwise than as an admitted fact, must serve with the report notice of anything of which the party serving it is aware which might reasonably be thought be capable of undermining the reliability of the expert’s opinion, or detracting from the credibility or impartiality of the expert.

Unless the parties agree otherwise or the court directs, a party may not introduce expert evidence if that party has not complied with r.19.3(3): CrimPR r.19.3(4). Further, where r.19.3(3) applies, r. 19.4 dictates the content of the expert’s report and, in particular, subparagraph (h) sets out that the report must include such information as the court may need to decide whether the expert’s opinion is sufficiently reliable to be admissible as evidence.

Practice Direction V, which supplements the rules, provides examples of information that should be disclosed by all experts and that information includes any conflict of interest of any kind.

A statement of understanding and a declaration of truth will also form part of the expert’s report.

The expert evidence

The expert for the prosecutor signed a declaration where he confirmed there was no conflict of interest.

The difficulty with the declaration was as follows.

(a) The solicitors acting for the prosecutor were Antony Hodari Solicitors which, according to their website, is the trading name of Antony Hodari Holdings Limited.

(b) Antony Victor Hodari and Stephen John Lund are Directors of Antony Hodari Holdings Limited.

(c) The expert report was carried out by Ultima Legal Services (or rather an individual employed by that company).

(d) Antony Victor Hodari and Stephen John Lund are Directors of Ultima Legal Services.

(e) The standard terms of the CFA agreement found on Antony Hodari Solicitors’ website (no other terms being offered to the court or Brent by the prosecution) set out at paragraph 25:

“During the course of acting for you in connection with a claim for we may need to obtain expert evidence to support your Claim such as from a Surveyor, Doctor or other expert. In some cases Antony Hodari Solicitors instructs Ultima Legal Services Limited. Antony Hodari Esq is a shareholder of Antony Hodari Holdings Limited trading as Antony Hodari Solicitors and is also a shareholder and director of Ultima Legal Services Limited. Antony Hodari Holdings Limited do not receive any commission or fee in respect of referrals to Ultima Legal Services Limited but Antony Hodari Esq does have a financial interest in Ultima Legal Services Limited. You are free to refuse to use the services of Ultima Legal Services Limited but we should warn you that this may result in a delay in obtaining evidence required to progress your case. Unless we hear from you to the contrary we will assume that you are happy for us to use the services of Ultima Legal Services Limited and will issue instructions accordingly”.

Rather than exclude the expert report prior to trial, the court decided to hear evidence and the expert was cross-examined. The expert maintained there was no potential conflict of interest. The expert accepted, however, that since his employment every instruction he had was from Antony Hodari Solicitors and that he knew, at the very least, Stephen John Lund was a director of both the solicitors’ firm and Ultima Legal Services.

There were also grave concerns raised during the expert’s evidence as to the failure to: (a) disclose a number of relevant documents (some of which could not be located when requested by the court); and, (b) to take into account Brent’s disclosure which was available when compiling the report for the court.

The result

After the lunch adjournment, the prosecution applied to withdraw the summons. This was not resisted by Brent. The District Judge decided he wanted an order drafted (which he subsequently approved) that set out what had happened. He required two things in particular to be recorded.

First, that in any future reports from the expert should include any conflict of interest which should be disclosed under the Criminal Procedure Rules and any relevant Practice Direction. The court directed this given the indications during the expert’s oral evidence that since his employment with Ultima Legal Services he had exclusively received instructions from Antony Hodari Solicitors and, the court had evidence, that Antony Hodari and Stephen Lund are both directors of Antony Hodari Solicitors and Ultima Legal Services. 

Secondly, that he had been informed by those representing the prosecutor that the tenant would not be pursued for any costs under the CFA (including the costs of the expert and other disbursements).

Comment

The issue was the failure to disclose the potential conflict and then continuing to maintain there was nothing about the above factual background which could give rise to any conflict. There had been no further evidence or disclosure from the prosecution in response to the Brent’s evidence regarding Antony Hodari Solicitors and Ultima Legal Services.

The approach taken by the prosecutor and expert in this case meant the court had serious doubts as to the credibility and reliability of the report. Expert reports are often vital to establish - beyond reasonable doubt – that a statutory nuisance is present within a property on the relevant dates. The case had to fail.

Sarah Salmon is a barrister at Cornerstone Barristers. She acted for the London Borough of Brent.