Alex Carington examines the lessons for experts and the difficulties in establishing fundamental dishonesty in a recent decision on sexual abuse, Samrai v Kalia [2024] EWHC 3143 (KB).


This claim was brought by 7 claimants against the Defendant, as a priest of the Hindu Temple to Baba Balak Nath in Coventry, alleging sexual and financial abuse as well as exploitation.

The claims were heard before Spencer J over 18 days. The judgment is a lengthy 136 pages and – whilst this blog will briefly summarise the factual background of the claims – the focus will be on the expert evidence and the Court’s decision on the allegations of fundamental dishonesty.

Background to the claim

The Claimants were all, at some stage, attendees at the Hindu Temple Baba Balak Nath in Coventry where the Defendant was a priest. The first four Claimants alleged sexual and financial abuse by the Defendant. The remaining Claimants alleged financial abuse. The allegations spanned from 1989 to 2016.

The allegations were denied in their entirety by the Defendant who denied any sexual activity with any of the Claimants and asserted that any unpaid work undertaken by them was Seva, a form of voluntary service undertaken by the community in service of the Temple.

The claims of the 5th and 6th Claimants were struck out during the course of the trial for wholesale failures to comply with procedural rules relating to their witness statements, which had been provided in English despite their inability to read or proficiently speak it.

The first four Claimants, who were asserting sexual abuse, accepted their claims were being brought outside of the limitation period and were seeking the Court to exercise its discretion under s. 33 of the Limitation Act 1980.

Expert evidence

The parties adduced written and live psychological/psychiatric expert evidence: Dr Jacqueline Blyth (consultant psychologist) on behalf of the Claimants and Professor Andrew Maden (consultant psychiatrist) on behalf of the Defendant.

The judge produced a scathing assessment of the evidence of Dr Blyth, at paragraphs 248-261 of the judgment, in which he found Dr Blyth’s evidence fell well below the standard to be expected of a competent expert witness, both as to form and as to substance:

  1. Despite asserting she was familiar with CPR Part 35 and the guidance to experts, none of Dr Blyth’s reports contained a compliant expert’s statement of truth, which she could not adequately explain.
  2. Documents relied upon to produce her reports were not listed or annexed to them, contrary to the guidance.
  3. Dr Blyth advanced a supposition that the room in which the Claimants asserted they were abused at the Temple must have been disassembled after the Defendant was arrested. This supposition was not based on any evidence, and assumed the veracity of those Claimants’ assertions, despite Dr Blyth knowing there was a dispute about this. Of more concern, Dr Blyth conceded she would not have included this section in her report if she had prepared it for the Defendant, which revealed a worryingly lack of impartiality.
  4. There was no mandatory summary of conclusions.
  5. Dr Blyth had plagiarised passages from an academic article but had not referred to it in her list of sources. She tried to assert that she could not recall doing this, and sought to minimise it by saying that they must have reached the same conclusion. Embarrassingly, she could not explain what the term “prasad” meant – having copied it from the academic article – which undermined her position that they had simply reached the same view.
  6. Dr Blyth asserted she took a full history of the Claimants but had not included it in her reports, despite it supporting aspects of her opinion.
  7. Dr Blyth denied that she asserted the Claimants had suffered from Religious Trauma Syndrome, but then accepted she had asserted this in her reports. She then admitted that she had come to court without reminding herself of the contents of those reports as her printer was broken. She conceded this was unacceptable for an expert.
  8. Dr Blyth inaccurately stated that Religious Trauma Syndrome had been compared by another academic to Complex PTSD, which is different to PTSD. Again, that was inaccurate: it had been compared to PTSD, but not to Complex PTSD.
  9. Dr Blyth asserted the First Claimant starved herself after the defendant criticised her weight, which led to severe health problems, but this was unsupported by the First Claimant’s medical records which Dr Blyth said she reviewed.

The judge concluded: “In my judgement no reliance whatever can be placed on the reports and opinions of Dr Blyth. She demonstrated herself to be an expert who had little or no regard to the provisions of Part 35, the Practice Direction and the Guidance in preparing her reports and who was prepared materially to mislead the court by passing off the views of another person as her own by lifting large passages from that person’s article and setting them out in her report as if they represented her own views without acknowledgement or reference to the originating source. In the circumstances, I consider that I have no choice but to reject Dr Blyth’s evidence in its entirety.”

Fundamental dishonesty

In order to understand the context of the fundamental dishonesty allegations, it is useful to summarise some important aspects of the evidence:

  1. The First Claimant’s claim originally asserted she worked on average an impossible 24.5 hours per day from 1993 to 2016 for the Temple. This clear error was then attributed to the First Claimant’s mental health.
  2. The First Claimant’s assertion of working constantly at the Temple was inconsistent with her medical records which documented reported agoraphobia preventing her from leaving the house.
  3. The Second Claimant alleged the Defendant first raped her during her first year at university; however, a letter to the CPS in 2017 asserted it was before she started university.
  4. The Second Claimant tried to give Dr Blyth the impression that the Defendant’s psychiatric expert had not done his job properly as he ignored everything the Defendant had done. However, she had agreed with the Defendant’s expert not to be questioned on her allegations, which had been for her benefit.
  5. The Second Claimant could not explain what had happened to her WhatsApp messages, which she had not provided despite a court order. The Judge noted she was a teacher in computing.
  6. The Second Claimant’s claim for unpaid work amounted to working 24 hours a day for 36 years.
  7. The Third Claimant asserted she did not know one of the witnesses and had never spoken to her, before admitting she had been to her wedding. The judge found this to be a deliberately untrue. It was established they had been going to the Temple for several years, and the witness was friends with her sister.
  8. The Third Claimant deleted her WhatsApp messages a week before a court order was made requiring her to disclose them.
  9. The Fourth Claimant was found to be deliberately obtuse in her evidence concerning the reasons she left her job.
  10. The Fourth Claimant was unable to explain the methodology for the figures in her Schedule of Loss, despite the latest version having been signed less than 2 months before the trial.
  11. The judge accepted evidence from a witness that the First and Second Claimant had tried to persuade that witness to support their allegations for which she would be given £20,000 or £25,000.

It is also important to highlight that the judge also found aspects of the Defendant’s evidence to be untruthful and evasive, in that he sought to downplay his role and influence at the Temple.

The Defendant was considered to be evasive when answering questions about whether tricks he performed (e.g. squeezing blood from a lemon) were done to persuade followers that he had special powers. The judge also found the Defendant did have sexual intercourse with the First Claimant on a number of occasions despite him denying it.

The judge noted at paragraph 306 of the judgment that “the assessment of the facts in this case has been bedevilled by the way in which the evidence has been tainted with lack of candour, lies and attempts to conceal the truth. This has been the case for both sides.”

All in all, the judge only found 3 out of the 19 witnesses of fact to be reliable and wholly straightforward.

In respect of the first 4 Claimants’ claims, the judge concluded:

  1. The First Claimant did have a sexual relationship with the Defendant (despite his denial). However, the judge did not find it proven that the relationship was absent of consent or involuntary.
  2. It was not proved that the Second, Third or Fourth Claimants had been sexually assaulted or raped by the Defendant. The judgment was silent, perhaps deliberately, on whether there was any finding as to any sexual intercourse between them and the Defendant.
  3. In respect of all four claims, Spencer J went to conclude that even if they had been proven, he would not have extended limitation in any event due to the loss/destruction of evidence, conduct of the Claimants, a lack of good reason for the delay, a lack of disclosure and significant issues with the sums and calculations in the Schedules of Loss.

The claim for financial abuse of the Seventh Claimant was dismissed on the basis that the judge did not consider the work done to have been forced or involuntary.

The judge declined to make a finding of fundamental dishonesty against for the first four Claimants and limited his reasons to two short paragraphs. In respect of the First Claimant, he had accepted her evidence that there had been a long term sexual affair and so he considered a finding of fundamental dishonesty inappropriate.

In relation to the Second, Third and Fourth Claimants, he stated:

I have found that their evidence was not sufficiently credible for me to conclude that they have proved their claims to the required evidential standard. Whilst, of course, that carries with it the conclusion that they were not raped or assaulted by the Defendant, that is because that is a binary issue within this litigation, and one which is decided on the balance of probability. But I do not consider it appropriate to follow that through to the conclusion that they have lied and been dishonest in relation to the allegations they have made. Accordingly, I decline to make a finding of fundamental dishonesty.”

Commentary

Lessons for experts and legal advisors

It is fair to say Dr Blyth had a very bad day at the office. It was reminiscent of Mr Justice Cotter’s dissection of the claimant’s care expert evidence in Scarcliffe Brampton Valley Group Ltd [2023] EWHC 1565 (KB).

Much of the criticism must fall directly at Dr Blyth’s feet. She plagiarised an article without citing it in her list of materials. She failed to read her reports before the trial, something which she had to concede was unacceptable for an expert. She accepted aspects of her written report could be considered partisan and she would not have included them if she had been instructed by the other side. This is inexcusable.

However, there were a number of criticisms of her evidence that should have been picked up and remedied by the Claimants’ legal advisors well before trial. The consequences for not doing so acts as salutary reminder of why early critical evaluation and regular review of the expert evidence is crucial.

Most of the procedural errors concerning Dr Blyth’s reports should have been picked up and remedied before service and certainly before trial. A conference with the expert would have hopefully identified unsupported assertions, such as the assertion regarding the First Claimant’s food restriction causing serious medical issues, which were unsupported by the medical records. Pre-trial correspondence and conference should have confirmed Dr Blyth had read her own reports (although it is not unknown for experts to confirm this in pre-trial conference only to change their position in evidence).

As the success of most personal injury and clinical negligence cases depend so heavily on the expert evidence, it is crucial that the expert evidence is carefully scrutinised for errors which may cause them to come undone at trial.

A word of warning for any party choosing to sit on their hands to take issue with errors at trial rather them at an earlier stage. It is fairly common for procedural defects in reports or statements of truth to be identified at trial and a point taken about them. Very often, the Court will reach the view that it can remedied by the witness clarifying the position, and also questioning why it is only being raised at such a late stage if the party considered it to be important. Such points often have no traction unless the other party could not have known about it (e.g. a witness not speaking English) and it not being possible to remedy the error that stage. In this instance, the scale of the procedural errors together the poor performance of the expert really meant no such remedy was possible, but that will not always be the case.

Fundamental dishonesty

At first blush, it seems surprising that the Court made no finding of fundamentally dishonesty, having rejected the Second, Third and Fourth Claimants’ serious allegations of rape or sexual assault. After all, these allegations clearly went to the heart of their claims.

Whilst it may seem the court placed a high burden on the Defendant to establish fundamental dishonesty, the decision has to be understood on the particular findings in this case. The judge did find the Defendant had a long term sexual affair with the First Claimant, despite the Defendant denying any sexual interaction with her. The Defendant could not be considered a reliable witness.

Moreover, the judge (whether deliberately or not) did not make any findings as to whether the Defendant engaged in any sexual activity with the Second, Third or Fourth Claimants. It may be – and this is speculative as to the reasons behind the Court’s omission – that the judge was unsure on the point. He only had to find there was not sufficient evidence to prove rape or sexual abuse for the claims to fail. He did not have to decide whether there was sexual activity in order to dismiss the claims. Spencer J may not have felt confident making a positive finding in view of the general unhappy picture of the evidence, where the testimony of both sides had been tainted by a lack of candour with only 3 of 19 witnesses being found reliable.

It serves as a reminder that, whilst the burden to prove a claim rests on the claimant, the burden to prove fundamental dishonesty falls on the defendant. In cases such as this one, where the evidence of both sides is tainted by unreliable or dishonest evidence, there is a very real possibility that the court will find neither party has satisfied the burden upon them.