Sheriff Appeal Court refuses to release expert witness evidence recording to medical negligence pursuer

A motion by a man who sued a health board for damages resulting from negligence seeking access to a digital recording of evidence provided by an expert witness has been refused by the Sheriff Appeal Court.

Billy McGowan argued that the sheriff had decided his case unfairly as a result of omissions and misquotations from the witness’ testimony. The defenders, Ayrshire and Arran Health Board, opposed the motion.

The case was heard by Sheriff Principal Aisha Anwar. The appellant represented himself while the respondents were represented by Vinit Khurana QC.

Misrepresented testimony

The appellant originally raised proceedings against the respondents arising from alleged negligence in the treatment and care of his late mother. Following a proof before answer, the sheriff found that the pursuer had not proved his case on the balance of probabilities and granted decree of absolvitor in favour of the defenders, with a note being issued in April 2020.

In December 2020, the appellant lodged an appeal, in which he stated that key testimony provided by his expert witness had been misrepresented in the sheriff’s note as a result of omissions and misquotations. Having obtained a transcript of that evidence, he sought access to the digital audio recording of the evidence.

In the appeal proceedings, the appellant stated that he did not recognise many of the statements that had been attributed to his expert witness and considered that the chronology of the testimony was wrong. He further explained that questions he had asked the witness in examination-in-chief had not been correctly noted in the transcript and that it did not reflect written questions he believed he had posed to the witness.

It was submitted for the respondents that there did not appear to be any significant discrepancy between the transcript and the sheriff’s note that would justify the expense and delay that an examination of the audio recording would cause.

Entirely consistent

In her decision, Sheriff Principal Anwar, who noted the “unusual” nature of the motion, said generally: “In my judgment, there must be a cogent, reasonable and objectively demonstrable basis for an assertion that a transcript of proceedings is incorrect. That is particularly so when there is no obvious or material discrepancy between the contents of the transcript and the summary of the evidence contained in the sheriff’s note.”

Examining a specific example of misrepresentation given by the appellant, she said: “The appellant contended that the sheriff had incorrectly noted that the expert witness did not give evidence to the effect that there was a normal and usual practice in respect of various aspects of the medical treatment of sepsis. However it is clear that [in the relevant paragraph] the sheriff is analysing the law and applying it to the evidence. When one examines the sheriff’s summary of the relevant chapter of evidence, it is apparent that the summary is entirely consistent with the evidence as recorded in the transcript.”

She continued: “An assertion that a transcript does not accord with one’s recollection is not a sufficient basis for an appellant to seek access to a digital recording of proceedings, particularly when the transcript is consistent with the summary of the evidence contained in the sheriff’s note. I accept that the appellant is steadfast in his recollection and is convinced that the audio recording will bear out his assertions. He took a similar position in relation to the transcript. The transcript did not vindicate his position.”

Sheriff Principal Anwar further noted that the sheriff’s observations of the pursuer’s conduct as a party litigant “foreshadowed the submissions made by the appellant in support of this motion”. She concluded by quoting from the sheriff’s note, who observed: “The pursuer did not make notes of the replies to his questions in the course of the evidence. It is apparent from his submissions that he erroneously understood that certain of his prepared questions had been adopted or assented to, and that he had received affirmative answers to certain questions.”

For these reasons, Sheriff Principal Anwar refused the appellant’s motion, having not been persuaded that access to the recording was justified or necessary.

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