Toth v Jarman

[2006] EWCA Civ 1028 (CA)

Potential Conflicts of Interest

The Facts

This was an appeal against a dismissal of a claim for damages for nervous shock and psychiatric injury alleged to have been caused by a GP. The appellant’s son (W) suffered from glycogen storage disease (GSD). W was drip fed glucose during the night. Without it he would become hypoglycaemic. The GP was called to the appellant’s house one night when his drip feed had not worked to give emergency treatment to W who suffered a hypoglycaemic fit and was unconscious. The GP tried to administer glucose orally on arrival. Once admitted to hospital W was not given an intravenous glucose injection until over an hour after admission. The judge found that the GP had been negligent in not administering a glucose injection when she arrived on the scene. However the judge was not satisfied, having heard the evidence of 2 expert witnesses, that had the GP administered the injection on his arrival at the house, that that would have saved W’s life – as by that stage he had already suffered irreversible brain damage. The claim therefore failed for lack of causation.

The Issues

It was discovered after the trial that one of the experts had an undisclosed conflict of interest in that he was a member of the Cases Committee of the Medical Defence Union who acted for the GP. It was that expert’s opinion which was preferred by the judge in reaching his conclusions on the case. The question was whether the conflict disqualified the expert or affected the weight to be given to his evidence.

The Decision

The Court of Appeal upheld the lower court’s decision on the basis of the factual and expert evidence.

On the issue of particular relevant to experts, the Court of Appeal found that the presence of a conflict of interest did not automatically disqualify an expert. The major question was whether the expert’s opinion was independent of the parties and the pressures of the litigation. (The Court applied the Ikarian Reefer guidelines and CPR 35.3 which set out the duty of the expert to assist the Court). 

It was hence important for an expert to disclose any significant or material conflict of interest at as early a point in the case as possible and this would normally to be disclosed at the time of service of the expert report or, if the conflict arose thereafter, at the first practicable opportunity. 

An expert should produce his CV when providing his report and should be astute to provide details of any work or employment which might give rise to a conflict of interest. 

In this particular case the Court found that there was a potential conflict of interest and the information should have been disclosed. However, it also found that (a) the committee itself had a sensible practice of excluding any member who was an expert on a case from deliberations on that same case and (b) the expert was not serving on the committee at the time of the case. In those circumstances the previous conflict of interest – even if it had been of itself a disqualifying interest, had become immaterial. 

The Court proposed that the Civil Procedure Rules Committee should consider extending the requirement for an expert’s declaration at the end of his report to include a statement to the effect that there was no conflict of interest.


This case shows the importance of disclosure of potential conflicts of interest but sensibly makes it clear that not every conflict will necessarily lead to disqualification. The advice of the Court to the Civil Procedure Rules Committee to include a provision in the Expert’s Declaration as to there being no conflict of interest is useful in itself, but to the extent that the Academy of Expert’s model form is used there is in any event already a specific section under which any conflict of interest is disclosed.