Muyepa v MOD: A ‘Watershed’ case and a salient reminder of the importance of calling reliable, knowledgeable and, crucially, truly independent witnesses.

The recent case of a Royal Artillery soldier who had his £2.9m claim against the MOD for damages dismissed at court has highlighted the importance of reliable expert witnesses in medical damages claims, not only for the claimant but also the defendant.

The case revolved around exercises Brian Muyepa took part in in 2016 and 2017 in the course of his job. The first saw the soldier sent to Wales in March 2016, where he was required to spend time in a tunnel filled with cold water. Muyepa then spent a further five-and-a-half hours in his wet boots.

He was later diagnosed with non-freezing cold injury (NFCI), a debilitating condition colloquially known as ‘trench foot’, which causes discomfort in the body’s extremities and oversensitivity to cold.

Following the diagnosis Muyepa was told to avoid cold conditions, but in early 2017 he was sent to Salisbury Plain, where he spent much of his time outside working on vehicles. The condition subsequently worsened and he was medically discharged from the army in January 2018.

Muyepa claimed the injuries left him requiring a stick to walk, suffering constant pain in his hands and feet, unable to undertake basic personal or domestic tasks, unable to get in and out of his car unaided, unable to assist with the care of his disabled daughter, and incapable of employment.

He served an initial Schedule of Loss claiming circa £3.7million – the highest ever claim advanced for a case of NFCI – although this was reduced to £2.9m when it was admitted that Muyepa’s wife had fabricated the level of care her husband required.

It was the Defendant’s case that the Claimant “created, or consciously and significantly exaggerated, NFCI symptoms to such an extent that he has been fundamentally dishonest.”

The defence team produced a significant amount of video evidence culled from both social media and covert surveillance to support their claim, including footage of the Claimant dancing at a barbeque, walking unaided, getting in and out of his car and driving it unaided, and shopping.

Mr Justice Cotter concluded that the evidence showed Muyepa had “hugely exaggerated his symptoms,” however it was the Claimant’s expert witnesses that came in for particular scrutiny, with suggestions of partisanship in the final verdict.

While the issues related to expert partisanship are serious at the best of times, in this instance Justice Cotter found that they were compounded as the experts had only ever been claimant-instructed. The same would apply to experts who are only ever defendant-instructed, and the importance of genuine neutrality in expert witness testimony cannot be emphasised strongly enough.

Gordon Exall, Barrister, Kings Chambers, advocated during a recent APIL webinar that all instructing solicitors should copy this Judgement to their experts and ask them to ensure they cannot be criticised accordingly.

The Defendant’s care and employment witnesses came in for particular criticism, although it should be noted that the Judgment criticises all of the claimant’s experts for being partisan, at times, and neglectful of their CPR Part 35 duties to the Court.

In the case of the care and employment testimony, both experts were heavily criticised for acting as advocate for the Claimant, being partisan and neglecting their duties as an independent expert. Cotter J found that the care evidence “did not satisfy the test of ‘reasonableness’ in respect of levels of care, aids and equipment” and “failed to address the social media and surveillance evidence.”

The employment witness, meanwhile, was found to have acted as Judge of the facts rather than witness to them.

Cotter J concluded that both witnesses had “acted at times as advocate for the Claimant and both at times presented partisan views to the court and…in so doing neglected their duties as independent experts.”

In contrast, Cotter J highlighted the fair and balanced approach of the MOD’s five experts.

Ultimately, Muyepa’s case was duly assessed to be worth just £97,595 – a “conservative” figure on the basis of his fundamental dishonesty.

The dishonesty caused a very significant difference between the pled value of the claim and the value assessed by Cotter J, which was just 3% of the claim.

In such a situation a claim can be dismissed as long as the court finds this would not result in substantial injustice. The claim was dismissed with no substantial injustice found.

There could barely be a more salient reminder of the importance of calling reliable, knowledgeable and, crucially, truly independent witnesses. With four decades of experience, providing expert witness reports and services to claimants and defendants alike, Frenkel Topping Group can proudly claim to offer precisely that.