Issue 72, June 2013
In this issue we start a two-part series on the role of the expert witness in Scotland. The adversarial system used in
Scottish courts is not dissimilar to that employed in the courts of England and Wales but there are differences that
an expert should know about. We also look at access to expert reports by parties who are not party to the litigation
for which the report was prepared. Finally, we report on the latest moves by the Ministry of Justice to cut the amount
it spends on expert witnesses. |
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Issue 71, March 2013
In this issue we take a long hard look at litigants in person. With the major legal aid cuts in April 2013 will come a big
increase in the number of litigants who will try and run cases themselves. The prospects for expert witnesses
instructed by such litigants is not promising! We also look at a key effect of the Jackson Reforms for expert witnesses in
the form of cost budgets. We round off with a couple of articles on expert determination. The first looks at when it is proper
for the expert to determine his or her own jurisdiction and the second shows this theory in practice. If you are thinking of
expanding your expert repertoire to include expert determination, these articles are for you. |
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Issue 70, December 2012
In this issue we look at how the seemingly obvious requirement to select experts with the necessary skills, qualifications
and experience can sometimes cause difficulties, particularly when it comes to deciding what weight to apply to the evidence
adduced. We consider whether it always takes expert evidence to prove professional negligence and reprise the topic of
whether an expert has to answer the questions put by another party. The difficulties created when a party wants to switch
expert part way through a case are considered and we muse on whether Wales will soon create its own jurisdiction. Finally,
the need to agree instructions at the outset is highlighted and we report on a legal attack upon a parsimonious decision on
funding a family court report by the LSC. |
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Issue 69, September 2012
This issue is turned over almost entirely to the recently published revision of the Civil Justice Council’s Guidance for the instruction of experts to give evidence in civil claims.
This document began life in 2005 when the Civil Justice Council took the initiative to establish a single, authoritative set of guidance for expert witnesses working under the Civil Procedure
Rules (CPR) in England and Wales. This is the first major revision since 2005. Exactly when this new text will replace that currently appended to CPR 35 is not yet clear, so this is an
early opportunity to get to grips with what is very likely to come into force in the coming months. We also look briefly at who pays for an expert witness answering questions put under CPR35.6 and
what the Solicitors Regulation Authority has to say on what solicitors should tell clients about expert witness fees. |
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Issue 68, June 2012
This issue is turned over almost entirely to an expert witness’s terms of engagement.
The recent changes wrought by Jones -v- Kaney together with moves on fees at the Ministry of Justice and Legal Services Commission, have made the need for an expert
witness to have in place a proper contract more important than ever. A good set of terms won’t stop problems arising, but it will make clear what each party expects
of the other and the contractual obligations. As a result, dealing with any problems that do arise will be much easier. We also summarise the Ministry of Justice litigation reforms. |
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Issue 67, March 2012
In this issue we look at the Family Justice Review final report and wonder if
it is more about cutting costs than improving access to justice for some of the most vulnerable in society.
We also report on some early results from the trial of concurrent expert evidence (or hot-tubbing as it is known).
The difficulties that can arise when experts have prior knowledge about a piece of litigation or the parties are also considered.
We also look at the National Taxing Team which deals with discretionary costs in criminal courts, introduce a
new handbook from the Solicitors Regulation Authority, have a smile at the expense of psychologists and explain
how expert witnesses in the UK Register of Expert Witnesses can get Your Witness on Kindle. |
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Issue 66, December 2011
In this issue we look at the ability others have to reuse expert witness reports from unrelated proceedings
and report on two cases which have seen the Jones -v- Kaney judgment play an important role,
in one case it meant a proper defence had to be raised by an expert witness and in another the fact the expert
witness could now be sued was critical in the Court of Appeal rejecting an application.
We also consider the admissibility of expert evidence that was prepared for someone who is no longer a party to a court
case and take a first look at the recently published Family Justice Review as it relates to expert witness and at some Woolf-like reforms taking place in Scotland. |
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Issue 65, September 2011
In this issue we launch, in response to Jones -v- Kaney, the UK Register of Expert Witnesses Professional Indemnity Insurance Scheme,
designed to offer expert witnesses top-quality cover at market-beating prices. We reveal the outcome of our ninth bi-annual expert witness survey
and we consider a case that deals with whether prior knowledge of one of the parties, or some other aspect of the case, compromises an expert
witness’s claim to independence. We look at the impact that discrediting an expert witness should have on past cases and we underline the
important distinction between expert advisors and expert witnesses when a party decides to ditch one expert witness and seek the opinion of another.
Finally, we report on a family court case that has an important message for all expert witnesses about what can and cannot be kept confidential. |
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Issue 64, June 2011
In this issue we take a long hard look at the Supreme Court decision in Jones v Kaney and consider some of its
consequences, the decision-making process itself and some import considerations for expert
witnesses under the new liability regime. We summarise the three different Statements of Truth that you need to use on reports for civil, family
and criminal courts and introduce the new Family Procedure Rules Practice Direction 25A dealing with experts, which
contains some helpful ammunition for experts trying to get their instructing lawyers in line. Finally, we preview a bespoke insurance scheme for
experts in the UK Register of Expert Witnesses,
announce a new LittleBook on marketing and enclose the latest survey form in our biannual series
of surveys of the expert witness world. |
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Issue 63, March 2011
In this issue we welcome the arrival, after a decade-long gestation, of the Family Procedure Rules which come into force on 6 April 2011. They provide a single set of rules for family proceedings in high courts, county courts and magistrates’ courts in the style of the Civil Procedure Rules and contain little to surprise experts. We review a case in which the controversial Low Copy Number DNA technique – in which tiny amounts of DNA are processed – is declared sufficiently established to be admissible in court. We consider what to do if those who instruct you are trying to hide your report from the court, comment on guidance from the Crown Prosecution Service on ‘shaken baby’ cases and on the use of ‘likelihood ratios’ based on dodgy databases, and clear up some confusion over whether a recent tax tribunal case means experts no longer need to charge VAT on their reports. |
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Issue 62, December 2010
In this issue we look at the ‘ultimate issue’ rule – To what extent can expert witnesses give opinions on the facts the court has to determine? – and conclude it is virtually dead. We review a case in which the Court of Appeal looked at the way an expert at the Forensic Science Service (FSS) used a Bayesian approach ‘behind the scenes’ in coming to an opinion on how likely it was that a footmark came from the defendant’s shoe. The Court of Appeal ruled that such an approach was unsupportable, that the FSS was dabbling in pseudoscience and that the Forensic Science Regulator was wrong to promote the use of the approach across the board. We report on some recent guidance on the use of expert evidence from the Technology and Construction Court (often a trail-blazer on developments in procedure), and summarise the latest consultation from the Ministry of Justice on expert fees. |
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Issue 61, September 2010
In this issue we look at some Court of Appeal guidance on how juries should choose between experts who disagree in their opinions (and wonder just how its effectiveness can be tested when we don't know, and can't research, how juries make their decisions). We take a look at expert determination, a form of ADR that is growing in popularity. We review a case in which expert evidence on custom and practice in an industry played an important role, and we anticipate some of the arguments likely to play out at the Supreme Court when expert immunity comes under the spotlight in early January 2011. |
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Issue 60, June 2010
In this issue we look at the next stage in the Ministry of Justice attempt to get to grips with the cost of expert evidence paid out of public funds. We take a detailed look at the 'hot tub' system, developed in Australia, that Jackson LJ has recommended be tested over here. We consider the future for MROs given their last-minute reprise by Jackson LJ in his Review of Civil Litigation Costs, and we ask whether jurors are able to comprehend the technical expert evidence put before them. |
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Issue 59, March 2010
In this issue we look at a proposal to integrate experts more tightly into the Family Court process, review a recent case that deals with how an expert can express the strength of his opinion and report on a recent appeal involving the Low Copy Number DNA procedure in which once again the technique received the official seal of approval. We also summarise the developments in expert witness immunity as a new attempt to remove this important protection (important for litigants, not experts, that is) sees the matter heading to the Supreme Court and ask whether there is anything an expert can do to overturn the decision of a Determining Officer. |
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Issue 58, December 2009
In this issue we report back on the latest in our series of bi-annual expert witness surveys. We consider the proposals made by the Ministry of Justice to cap expert witness fees, and summarise our response to the MoJ, which predicts a serious impact on the supply of experts willing to undertake forensic work if the proposals are implemented without radical modification. We also report on three cases dealing with the introduction of fresh expert evidence in criminal appeals, and ask for your help in gathering information on the activities of professional regulators and on the judicial criticism of expert witnesses. |
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Issue 57, September 2009
In this issue we wrap up our coverage of the Law Commission consultation on pre-trial testing of expert evidence, we look at the history of and recent developments in clinical negligence case law (and find a relaxation in the burden of proof) and we take a first look at the MoJ's latest attempt to control expert fees. We also preview some rationalisation of the Criminal Procedure Rules, consider literature citation in expert reports and launch the latest in our series of bi-annual expert witness surveys. |
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Issue 56, June 2009
In this issue we look at new BMA guidance on terms of engagement for doctors, a jury foreman who has got himself into a spot of bother and a prosecution expert witness who appears to have missed the vital guidance contained in the CPS Disclosure Manual. However, we spend most of our time on the Law Commission consultation on its plan to introduce a pre-trial assessment of expert evidence in criminal trials, the problems it identifies, its proposals for change and our analysis of the likely efficacy of these proposals by reference to some key criminal test cases. Finally, we focus on data protection and the expert witness, and we muse on the thought that most readers of Your Witness are likely to be breaking the law! |
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Issue 55, March 2009
In this issue we take a look at the Forensic Science Regulator's consultation on the accreditation of forensic science practitioners, and include information about how to contribute. We also consider running an efficient business and how it could help you weather the economic turmoil and round off with a court report offering the Court of Appeal's thoughts on leading-edge science in the courtroom. |
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Issue 54, December 2008
In this issue we take a look at expert witness work and recessions - it isn't all bad news! We also look at debt recovery in Scotland with the aid of the Law Society of Scotland, deferred payment and its effect on income tax and some more attempts by the LSC to cut the amount it pays to experts. Finally, we have a clutch of court reports considering ear print evidence, how an expert dealt with a court ruling him 'inexpert' and the use of shadow experts in the Family Court. |
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Issue 53, September 2008
In this issue we take a look at the new GMC guidance for doctors undertaking expert witness work, how the way courts deal with potential bias in an expert witness has evolved in recent times and debt recovery in Scotland. We also look at what to do if a court makes a determination that you aren't an expert and review a clutch of court reports considering the relevance of expert opinion, challenging bias and waiver of privilege. |
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Issue 52, June2008
In this issue we take a look at the admissibility of novel scientific evidence in criminal cases, the new Family Court Practice Direction for experts, some further developments in the Low Copy Number DNA profiling technique and the results of the review ordered by the Forensic Science Regulator. |
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Issue 51, March 2008
In this issue we take a look at some further guidance on how long experts should retain documents, what an expert can do when a lawyer goes bust, the Low Copy Number DNA profiling technique, and the trouble it finds itself in, and three court reports dealing with expert fees in the Lands Tribunals, the disregarding of inadequately prepared expert evidence and the proper place expert evidence holds in the evidential base of a case. |
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Issue 50, December 2007
In this issue we take a look at some unhelpful changes to the rules that govern the conduct of solicitors and at a further layer of regulation of expert witnesses being introduced by the Government. We consider how long experts should retain documents generated by an instruction and the role the expert witness has to play in the court's fact finding process. We ask whether fresh expert evidence can be grounds for reopening an appeal, and look at the consequences that can flow from a statutory body's failure, as opposed to a litigant's failure, to disclose expert evidence. |
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Issue 49, September 2007
In this issue we take a look at preliminary results of the latest in our series of expert witness surveys, the extent to which experts can control the scope of evidence in a case and what a judge must do if he wants to reject an expert's findings. We also look at a case that gives further judicial support for the right of an expert with a connection to a party being able to act as an expert witness. The cross-examination of SJEs and the role of experts in compromise agreements are also covered. Finally, we report on another medical reporting organisation (MRO) that has gone into liquidation (IMS of Richmond in Surrey) leaving thousands of doctors owed a total in excess of £4,000,000 - and offer guidance on how to bypass the MRO and seek redress direct from the instructing lawyer. |
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Issue 48, June 2007
In this issue we take a look at when exactly an expert's duty to the court begins, developments in the fitness to practise regime covering doctors, how to minimise problems that can arise when an instructing solicitor moves to another firm, the quality you should expect of the documents you receive as part of an instruction, how the judge should handle an expert's report that is clearly in error, and what can happen when an expert changes his opinion |
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Issue 47, March 2007
In this issue we take a look at the major differences between the jurisdictions in Scotland and England and Wales, the technical difference between experts giving opinion evidence as opposed to factual evidence, the growing opportunity for experts in risk assessment to provide expert evidence, the Government’s novel approach to using experts to increase the conviction rates in rape cases, a court report that re-examines the situation in which an expert is employed by one of the parties, and how causation can come into question in low-velocity RTAs. All in all, an eclectic mix of topics that hold the common thread of being centred on the use of expert witness evidence. We also announce the launch of 2 new Little Books for Experts: Expert Witness Fees and Expert Witness Practice in the Civil Arena. |
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Issue 46, December 2006
In this issue we take a look at the Court of Appeal judgment in the GMC -v- Meadow appeal, and the Chief Medical Officer’s (CMO) proposals for dealing with the problem of too few experts willing to offer their services to the Family Courts. While both articles are rooted in the medical arena, they have significance for all experts. The Court of Appeal decision on immunity will have important ramifications for all professionals. Likewise, the CMO's proposals for ‘opinion by committee’ represent a radical departure from the status quo. If adopted, we may well see the change filter across all disciplines as the courts alter the way they adduce expert evidence. |
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Issue 45, September 2006
Sherlock Holmes and the case of the missing humility - lessons for the 21st century from the Edwardian era • In court: etiquette and procedure • Experts and the ultimate issue • Adjudicator's discretion to disregard expert • What constitutes 'fresh evidence' • A guide to the courts of England and Wales • Testing frontier science |
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Issue 44, June 2006
Why has the Attorney General decided to intervene in the GMC’s appeal against Collins J? •
The final text of the Criminal Procedure Rules - a missed opportunity? •
Record, retain, reveal - guidance on disclosure for prosecution experts •
A problem for experts claiming travel time in criminal cases resolved •
Wollard -v- Fowler spells trouble for the MROs •
Services for experts from the UK Register of Expert Witnesses |
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Issue 43, March 2006
Meadow -v- GMC - expert witnesses are now immune from disciplinary procedures initiated by anybody but the court • Fixed fees for experts on the cards •
R -v- Campbell - court throws out prosecution over error in CV •
MROs under fire as courts prevent lawyers recovering the MRO mark-up •
Lord Carter’s Review on Legal Aid Procurement - a second helping •
Criminal Procedure Rules - CrimPR Committee urged to go further •
VAT on medico-legal work - HMRC urged to delay implementation |
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Issue 42, December 2005
Criminal Procedure Rules consultation •
VAT on medico-legal reports consultation •
Science on trial through the ages •
Dangers in a CV •
Lord Carter’s Review on Legal Aid Procurement •
Earle -v- Centrica: disallowed MRO fees •
McTear and the smoking statistic |
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Issue 41, September 2005
Meadow appeals GMC decision •
LawyerLists service launch helps experts with their marketing to lawyers •
Initial results from the Expert Witness Survey 2005 •
CJC Experts Protocol - at last it’s official and we present it here in full and annotated! |
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Issue 40, June 2005
Accreditation or registration - CJC Forum report, Conclusions, Survey results and Action plan •
Declining quality of solicitor instructions •
Judicial discretion in appointment of experts •
Is permission needed for a party to instruct and a second expert? •
Should the trial judge read literature referred to in an expert’s report? |
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Issue 39, March 2005
The lesson of Barion Baluchi •
The LSC Consultation: Accreditation, Price, Procedures •
Survey on LSC Consultation •
Joint & Several Liability •
Court reports: party acting as the expert, when a witness of fact takes priority over the expert and more on the immunity of expert witnesses |
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Issue 38, December 2004
The LSC Consultation •
Phillips -v- Symes - the potential for experts having to pay wasted costs in a legal action •
The status of draft expert reports - can a party force their disclosure? •
Judicial support for witness training •
The dangers of ‘coaching’ - when does training go too far? •
Money Claim Online - how to sue for your outstanding fees from the comfort of your armchair! |
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Issue 37, September 2004
Taking experts out of the court - is there a need to assess expert evidence ahead of the trial? •
The substance of instructions - How much of one’s instructions need to be referenced in a report •
The reluctant expert - things to consider when a report hasn’t been paid for •
Getting paid III - enforcement •
Letters |
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Issue 36, June 2004
Introduction to the new revetting system for experts listed in the Register •
The reasons for ever shorter court timetables, the problems they’re causing and potential solutions •
A guide to the use of experts in the legal systems of a number of our European neighbours •
A final visit to the aftermath of the Court of Appeal decision in the Cannings case with a view to exploring whether it puts science on trial |
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Issue 35, March 2004
Another medico-legal reporting agency gets into trouble •
Cot Death cases and experts - who will carry the can? •
Coroner’s court reform - more work for experts •
Agents - how experts can bypass the middleman •
Copyright protection for experts •
VAT for experts - including the up-coming introduction of VAT on medical reports |
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Issue 34, December 2003
Revalidation and the medical expert witness •
Lawyer fees •
Court reports, including The freedom to instruct, the discarded expert, letters of joint instruction •
Exchanges from the e-wire - a solicitor’s personal responsibility for expert fees •
Getting Paid II - when in dispute •
Copyright for experts |
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Issue 33, September 2003
Report on the fifth in our series of two-yearly surveys of the expert witness world •
Proceeds of Crime Act •
Guidance on the thorny problem of getting paid •
Preparing academics for the courtroom |
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Issue 32, June 2003
Why experts should keep their immunity •
Expert survey 2003 •
Digest, including Enron changes the rules, courts look again at delay, lawyers should prepare experts, the inadequate expert •
Judicial criticism - the ARB exonerates the object of Judge Jacob’s wrath •
The implications of the Sally Clark case for experts in child abuse cases •
New horizons - new asbestos regulations look likely to create job opportunities for experts •
Experts and legal privilege |
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Issue 31, March 2003
The importance of the Sally Clark appeal to experts •
Focus on ADR •
Court report - judges disregarding expert evidence •
Electronic documents in evidence •
Letters |
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Issue 30, December 2002
Is there property in an expert witness •
Woolf - 4 years on •
Irish caution •
News |
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Issue 29, September 2002
‘Agreed’ experts vs SJEs •
Court report covering Factortame and contingent fees for experts •
Letters •
News •
Conference and training update |
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Issue 28, June 2002
Disciplining experts •
Selecting SJEs •
Answering questions •
Court reports •
Letters •
News •
Training update |
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Issue 27, April 2002
Loads-a-Guidance! •
CPR Part 35 changes •
Sally Clarke •
Court reports •
CPR Protocol •
News |
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Issue 26, December 2001
Expert witness survey 2001 •
The eCast explained •
The Auld Report •
Copyrighted material and expert reports •
News |
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Issue 25, September 2001
Expert agencies •
Court report •
Regulation: the CRFP stance •
News and letters |
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Issue 24, July 2001
Regulation survey •
Court reports •
Letters |
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Issue 23, April 2001
Acting as an SJE - survey results •
Court report •
Usurping the judge •
News and letters |
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Issue 22, December 2000
Experts’ immunity •
Court reports •
Conference reports |
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Issue 21, October 2000
The Human Rights Act and experts •
Court reports (including justification for refusing inappropriate instructions) •
Do experts still enjoy immunity? •
News •
Letters on the witness summons |
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Issue 20, June 2000
The witness summons •
Small claims •
CPR: The experts’ views •
News |
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Issue 19, April 2000
News •
Claimant/defendant instruction split •
Mediation •
Appealing CPR •
Court report •
Factsheets |
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Issue 18, December 1999
News •
Medics as expert witnesses •
Risk assessment and the new legal landscape •
Conference reports |
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Issue 17, September 1999
Draft Code of Guidance for Experts •
Expert witness survey 1999 •
Risk assessments in experts’ reports •
News and conferences •
Criminal matters •
Court reports |
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Issue 16, June 1999
OSS cop out • News •
More on conditional fees •
No win, no fee and (?) no premiums •
Accreditation... here we go again! •
Services for experts •
Court reports •
Conferences and courses |
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