Expert witnesses are credited with being wholly unbiased, but they have a human flaw – the wish to win for their team. And that’s part of what went wrong at the Post Office, writes Tony Bingham

The lecture evening was put on jointly by the Adjudication Society and the Dispute Resolution Board Foundation; well done. It was all about the use of expert witnesses in adjudication. Many enthusiastic experts came; potential appointees. We mingled. I probed several potential experts about the Post Office inquiry. The question guaranteed a glazed look of boredom in the eyes of my potential appointees. And if in due course I conduct a formal interview seeking a suitable expert witness, I would expect the candidates to know all about this story of one of the worst miscarriages of justice in British history. After all, my expert witness candidates are also playing a key role in justice.

Tony bingham 2017 bw web

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple

Now, this commentary won’t be about the disastrous Post Office events: the deaths, the imprisonments, the bankruptcies, the social shunning of subpostmasters wrongly said to have had their hands in the till. Nor does it cast blame on the expert witness whose expert report to the court missed out one or two, or three, bits of information. Nor does it cast blame on the management at the top of the Post Office, as so much of the press is ready to so do.

Instead, with the help of the Post Office and other institutions, I want to coax you expert witnesses – those who are ever so good at critical path analysis and ever so sharp in quantum analysis of loss and expense and in valuation of variations, and those who know all about basement collapses, iffy piling, oddball steelwork, and more besides – to watch out for the human flaw: you want to be part of the winning side!

The expert has joined the team. He is not there in that team to rock the boat. There is a little man the size of Rumpelstiltskin sitting unseen on his shoulder. He whispers ‘naughties’ in the expert’s ear: how to win, how to win

Hands raised in horror at that remark; objections galore are hollered. You will insist that an expert witness is wholly independent, uninfluenced by those who pay their fees; fiercely devoted to assisting the tribunal, the adjudicator and the judge. You would bet your last penny on being able to express your expert opinion without fear or favour. If asked, you as expert will even sign off your expert report saying so.

Go even further: in the last several decades the courts have lambasted any expert who has failed in his or her duty of candour, not being open and honest and frank. Institutional folk write guidance notes on expert duties. The lecture I attended punched home the duty of independence. Let me go this far: expert witnesses in our industry are credited by default with being wholly honest and true to the tribunal.

Can you detect a “but” looming?

>>Also read: How a new ruling provides fresh clarity on building liability orders

>>Also read: Bring your data protection up to scratch

It’s that human flaw. The expert has joined the team. He is not there in that team to rock the boat. There is a powerful tyke, a little man the size of Rumpelstiltskin, sitting unseen on his shoulder. He whispers “naughties” in the expert’s ear: how to win, how to win. He whispers fragments of opinion, facts, that undermine the team’s case. But the expert absorbs all this good and bad stuff and his unwitting – yes, unwitting – conclusion is to bypass the bad.

Those who are investigating the Post Office say that the expert somehow overlooked bad bits. The “somehow” is the human flaw. Look, too, at the top Post Office management who have given evidence about the events spread over 10 years of prosecutions of 900 subpostmasters; they are tearfully saying sorry for not ordering a pause in the prosecutions. Their attitude was simple: the expert says our Horizon computer system is foolproof, so if that post office owner in your local village had a shortfall in her daily balance, she had to put her hand in her pocket and stump up that shortfall and be accused of fraud and false accounting. The Post Office mentality is that “we are never in the wrong”.

But the little tyke on the Post Office’s shoulder is exactly the same as many an institution suffers from; it’s that same flaw: ignore the bad bits.

There is an insidious demand from institutional staff and institutional members for loyalty. The institutions become mini-states and cannot ever be wrong. The hiccup – no, trip-up – in the Post Office came when a new barrister was instructed to prosecute yet another Post Office case. It was his first introduction to the Post Office mentality. Lo and behold, this fellow did his frontline duty to his profession. He told the Post Office that its case was in great difficulty because of doubt as to the accuracy of the expert report.

His evidence to the Post Office inquiry includes the following: “Looking back, I now see what appears to have been three strands of thought within POL on the topic of disclosure. The first strand amounted to an article of faith: ‘Horizon is both robust and reliable – there is nothing wrong with it, and if Horizon says money is missing then it is missing’. The second strand considered that the cost of providing disclosure was prohibitive and should always be discouraged. The third strand, I felt, arose out of an almost religious panic: ‘Horizon must not be seen to have been impugned’.”

My message to the institutions is bigger than my message to expert witnesses. It is this: “You are an organisation that is socially beneficial –until you are disqualified by your belief that you can lord it over everyone as the supreme, mighty and all-powerful enterprise” – like the Post Office.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple