Independence is the foundation of credible expert evidence. In medico-legal practice, an expert’s primary duty is to the court or tribunal. That duty overrides any obligation to the instructing party. The expert is not an advocate, the expert is an independent adviser.

Recent judgements in Fenech & Anor v Financial Conduct Authority provides a timely reminder of how strictly this principle is applied. The decision illustrates that expertise alone is not enough. Independence must be demonstrable and real.

The Core Legal Principle

The obligation of independence is well established.

An expert’s opinion must be:

• Objective.
• Unbiased.
• The product of independent analysis.

The courts have repeatedly confirmed that expert evidence must be uninfluenced by the pressures of litigation. Even the appearance of partiality can undermine confidence in the evidence.

Independence is assessed broadly. It is not limited to financial interest. It includes professional relationships, prior involvement, and institutional alignment. The question is whether a fair-minded observer would regard the expert as independent.

The Facts in Fenech

In Fenech & Anor v Financial Conduct Authority, the tribunal considered whether a proposed expert witness could properly give independent opinion evidence.

The individual in question possessed relevant technical expertise. That was not disputed. However, she had also played a central role in the underlying review process that was under scrutiny.

Her involvement was significant. She had:

• Managed and supervised the review team.
• Chaired calibration meetings.
• Contributed directly to the decision-making process.
• Maintained professional and financial ties to the organisation conducting the review.

Her witness statement used collective language such as “we”, indicating alignment with the review team.

The tribunal concluded that she was too closely connected to the work she was evaluating. She was not sufficiently detached to provide independent expert opinion. The evidence was therefore excluded.

Independence Versus Expertise

The decision highlights an important distinction. Expertise is necessary, it is not sufficient. A highly qualified professional may still lack the required independence. Where an expert is effectively reviewing their own work, or the work of a team they supervised, objectivity is compromised.

In medico-legal settings, this issue frequently arises. Clinicians may be asked to comment on care pathways, internal investigations, or systems they helped design. The closer the involvement, the greater the risk. The appearance of advocacy can be as damaging as actual bias.

Admissibility or Weight?

Courts often distinguish between issues that affect admissibility and those that go merely to weight. In some circumstances, a tribunal may admit evidence but treat it with caution. In the case of Fenech & Anor, however, the lack of independence was considered fundamental. The connection was so significant that the evidence could not properly function as expert opinion at all.

This is an important warning. Independence concerns can result not simply in reduced credibility, but in exclusion.

The Importance of Early Scrutiny

Another key feature of the decision is procedural. Questions about independence should be identified early, ideally, at the point of instruction. Certainly, at case management stage as late challenges create inefficiency and risk unfairness. They may also expose instructing parties to criticism.

Medico-legal practitioners should therefore conduct structured conflict checks before instruction. Engagement letters should clearly confirm the expert’s overriding duty to the court. Any prior involvement should be disclosed transparently.

Practical Lessons for Medico-Legal Experts

Several practical points emerge:

Firstly, maintain distance by avoiding accepting instructions to review processes or decisions in which you had operational responsibility.

Secondly, dual roles should be avoided. By being both investigator and expert in the same matter exposes risk unless the procedural framework expressly permits it.

Thirdly, the language used in a report can undermine perceived neutrality. An expert report should reflect analytical distance avoiding the use of collective or defensive phrasing.

Lastly, a medico-legal expert should disclose early and fully.If there is prior involvement, it must be declared. Transparency is essential.

Conclusion

The case of Fenech & Anor v Financial Conduct Authority reinforces a simple but vital message. Independence is not a formality. It is central to the integrity of expert evidence. Medico-legal experts must be demonstrably separate from the issues they are asked to evaluate. Where that separation is absent, the consequence may be exclusion.

For practitioners operating in clinical negligence, regulatory, or disciplinary contexts, the decision serves as a clear reminder: independence must be protected at every stage of expert engagement. Expert evidence carries significant weight. It must also carry unquestionable independence.