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Your Witness •
Issue 2 • December 1995
ESP to the search
and rescue!
Imagine you are a solicitor who needs to instruct an Orthopaedic
Surgeon in the South West. Naturally, you reach for your
copy of the UK Register of Expert Witnesses!
Whilst the printed Register lists many Orthopaedic
Surgeons, it can be difficult to extract just those from
a chosen part of the country and to quickly review their
details. Because the book is ordered primarily by county
and town, entries for Orthopaedic Surgeons will inevitably
be scattered throughout. One solution would be for us
to change the Register so that it lists experts by category.
However, this would require endless duplication because
most expert witnesses cover more than one discipline.
For example, how would you categorise a diving medicine
expert? We decided on a better solution – information
technology.
The new UK Register of Expert Witnesses
Expert Search Program, ESP, greatly reduces the time it
takes for solicitors to locate suitable expert witnesses.
At the touch of a button, ESP brings the power of electronic
search and retrieval to help its users explore the comprehensive
subject index of the Register in ways that are time consuming,
or even impossible, with the printed index. With ESP,
solicitors have the flexibility to decide their own subject
search criteria and geographical coverage, and the capacity
to locate and retrieve the relevant information almost
instantaneously.
ESP is a simple Microsoft Windows™ application written
by J S Publications specifically for the task
of making the UK Register of Expert Witnesses
more accessible – and you don’t need to be a
Windows guru to master it! We have offered the software
to all our current solicitor subscribers, and since the
October trial release, ESP has been taken by more than
70 solicitors’ offices.
We are pleased to continue to improve the benefits to
solicitors using the Register and are sure that
this new innovation will ensure that many continue to
see the UK Register of Expert Witnesses
as the natural solution to the task of locating suitable
expert witnesses.
As an expert witness listed in the Register,
you will be able to buy a copy of ESP in the New Year.
See the ordering information on yourdraft entry form which
will be sent to you in early January.
Chris Pamplin
It’s getting
draughty here!
We are rapidly approaching the season of goodwill.
Apart from indulging in too much food, drink and merriment,
this is also the time of year that we here at J S Publications
are busy preparing the draft entry documents that are
sent out prior to each new edition of the Register.
Although we know that you, too, are very busy, and we
wouldn’t want to add unnecessarily to your workload,
we feel that it is essential for you to review, and amend
as necessary, the information that we publish about you
in the Register.
So, when the draft of your entry for the 9th edition
reaches you in the New Year, please spare a thought for
the staff here who had to spend the run-up to Christmas
getting it ready. With such a thought in mind, how could
you possibly assign it to your pending tray!
Feedback
The survey that we conducted earlier this year prompted
a number of letters from expert witnesses on the subject
of the late payment of fees. We have room here to print
extracts from only two of them, but the points their writers
make are representative of others we have received.
Mr David Griffiths writes:
... Without question, the subject of late payment of
fees is the single major problem in my day-to-day work,
and I am glad that somebody is at last paying attention
to it.
I am in business as a sole practitioner and I receive
instructions from about 150 firms of solicitors. Some,
I must say, are extremely good and pay virtually by return
of post; others, being the vast majority, do not! This
problem is shared by all my professional colleagues who
act for solicitors, some of whom seem to assume that the
expert will be content to wait until the end of the case
before being paid, which could be years away. They do
not appear to have heard of the law of contract.
I know of one firm which is currently being sued for
a substantial sum by a consortium of experts. I understand
that part of its defence is that it is normal practice
for experts to wait for payment!
Naturally, I do not want to lose business by pressing
too hard. When I have been forced to do this, I have found
that a threat of reporting the firm to the Law Society
or taking County Court action usually produces results
– but no more work.
I do quite a lot of Legal Aid work and find that the
Board requires the fee to be quoted beforehand. I do not
object to this, and some solicitors will obtain interim
payment. However, I suspect that others gather the money
and, effectively, invest it for their own benefit.
I regard the general attitude of some solicitors to be
deplorable, and the sooner legislation on the subject
is introduced the better. I often find that less effort
is required to deal with the original instructions than
to extract payment...
Mr David Royle writes:
... I don’t seem to have the same problem with fee
payments for my ordinary, non-legal work, where I have
to say clients pay up fairly promptly. No, the trouble
with fee payment for expert evidence work invariably lies
with the instructing solicitors. I have done a rough check
on payment performance and it comes out as shown in the
table.
As far as privately funded work is concerned, the problem
is that I can’t get at the client himself –
it has to be through the instructing solicitor. Far too
often the solicitor does nothing to chase up payment from
the client, and indeed is understandably wary of upsetting
him. That doesn’t help me. Very occasionally a solicitor
will obtain funds from the client in advance, but these
are usually for the smaller jobs.
Legally aided work is a horror on its own, but I am now
very familiar with the system and will, if necessary,
contact the area Legal Aid office and find out for myself
the position on payment. As this invariably prompts the
Legal Aid office to contact the solicitor, it usually
galvanises him into action, but it does absolutely nothing
for goodwill between us!
With all Legal Aid work, I have to quote my fee beforehand,
or in exceptional circumstances the rate at which it will
be charged (but with a ceiling), and this has to be approved
by the Legal Aid office before I start work. I know that
Legal Aid offices are authorised to pay out experts’
fees by way of interim payment/disbursement on receipt
of application from instructing solicitors. In almost
all Legal Aid offices around the country, I have found
that they will make such payments within 21 days of receiving
the request, and sometimes within 14 days. The London
offices take slightly longer, but otherwise if a solicitor
submitted our account when we render it to him, we should
get payment within three or four weeks, which with Legal
Aid matters is acceptable.
Again, the trouble with solicitors – some of which
I can understand, although it is still unacceptable –
is that (a) they take ages to send the bill to the Legal
Aid office in the first place (with all sorts of excuses
about waiting for the right time to gather in bills from
various directions to submit ‘logically’ at
the same time), and (b) they then hand it over to their
accounts departments, which will most certainly hang on
to the Board’s money for as long as possible.
I have had two cases recently where I found out from
the local Legal Aid office that cheques covering my fee
had been paid to the instructing solicitors, respectively,
three and four weeks previously. If I hadn’t chased
them up myself with the Legal Aid office, which immediately
got on to the solicitors concerned, I would presumably
still be waiting for payment.
Although I have complained about solicitors in this matter,
it has to be remembered that they are the people from
whom instructions are received. There has to be a balance
between normal efficient credit control and not putting
the backs up of potential clients. Any suggestions you
or other experts may have for achieving a better balance
than there is now will most certainly be welcomed.
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Prompt payment
i.e. within 28 days |
Delayed payment
i.e. over 28 days* |
| Private/individual clients |
80% |
20% |
| Insurance companies |
100% |
– |
| Solicitors |
|
|
| privately funded cases |
40% |
60% |
| legally aided cases |
20% |
80% |
| |
|
|
| (*usually
much later and requiring aggressive chasing up) |
Solicitors frequently blame the Legal Aid Board for delays
in settling experts’ invoices, despite the fact that,
as David Royle points out, they are well able to apply
to it for a payment on account. Some expert witnesses
stipulate in their Terms of Engagement that the instructing
solicitor will make such an application, but of course
there is no way of checking that this has been done –
or, indeed, that the payment has been made – short
of telephoning the local Area Office and making a fuss
about it. In my view, it would be a great help all round
if the Legal Aid Board was to establish a routine whereby
expert witnesses are informed whenever interim applications
are made to pay their fees, and I am pursuing this with
the Board’s HQ in London. I will be reporting on
the outcome in the next issue of Your Witness.
Chris Pamplin
Witness in the dock?
On a lighter note, Captain Eric Beetham has passed
on the following anecdote:
‘At an arbitration held in a church hall we had
three tables pushed together into a ‘U’ shape,
the witness seat being placed in the open part of the
U. The church cleaner made the tea and brought it into
the arbitration. On the first occasion an expert witness
was sat in the witness seat, this delightful lady asked,
"Does the prisoner get a cup?"’
Questionnaire update
The article I wrote for the last issue of Your
Witness analysed the replies from 451 of the experts
J S Publications had questionnaired in May this
year. Since then, a further 341 experts have returned
forms to us, and these fully bear out the conclusions
I came to in September.
As with the earlier group, the great majority of those
responding in the second wave were highly experienced
expert witnesses, although overall only one in six would
describe such work as their principal activity. Also as
before, 82% of them foresaw their involvement in expert
witness work increasing in coming years.
On the other hand, an even greater proportion of the
new respondents – 72% instead of 68% – admitted
to not having a standard form of contract for use when
accepting instructions from solicitors, and 45% of them
do not even state by when they require their fees to be
paid, compared with 41% of the earlier group. In such
circumstances, it is perhaps not surprising that the experts
in this second group also appear to fare less well when
it comes to being paid, with 48% of them reporting that
solicitors settled their bills on time in less than one
case in four.
John Lord
Comment
It was interesting to hear Roger Ter Haar QC speaking
on the issue of expert witness liability at the Bond Solon
Conference in October. It was clear from his contribution
that the issue is very complicated. The central role of
the expert witness, that of providing an expert opinion
in court, is protected: you cannot be sued as a result
of anything you say in the witness box. The liability
risks all derive from the work you do beforehand, such
as the assistance you give your client in establishing
the facts and assessing the merits of the case, and any
reports you write under instruction. In general, the closer
you are to the day of the trial, the ‘safer’
you become!
The number of cases in which an expert witness is actually
sued is very small. This reflects in part the protection
the courts extend to the expert witness. In Evans
v. London Hospital Medical College [1981] 1 W.L.R.
184, the scope of immunity to civil action arising out
of negligence, if the act was part of the criminal investigation,
was said to cover ‘the collection and analysis of
material relevant to the offence or possible offence under
investigation... not... merely... the preparation of the
witness’s formal statement or proof of evidence.’
Obviously you are an assiduous expert not prone to making
mistakes. Taken together with the immunity cited above,
one might be tempted to consider the risk so slight that
the issue of liability can be safely consigned to the
‘highly improbable’ tray and forgotten.
Unfortunately, I cannot agree. Lord Woolf’s report
contains figures on the costs of cases compared with the
value of the claims being made. Of interest to us here
is that the average cost in the survey is a staggering
£24,221. I think many expert witnesses would find it impossible
to find the funds to defend themselves in a negligence
claim, regardless of the merits of the action brought
against them.
Finally, beware of thinking that you are already covered
by your existing professional indemnity insurance policy.
If you have not specifically disclosed your expert witness
work, many insurers would reject a claim arising out of
it on the basis that such work constituted a material
fact about which they should have been given prior notice.
Very little data exist on how many expert witnesses currently
have professional indemnity insurance arranged specifically
to cover their expert witness activities. I would be pleased
to hear what cover you have, and through which insurer,
so that we can compile a report on the current situation
for a future issue.
Chris Pamplin
Nota bene
Thanks to all those who contributed Nota Bene after we
introduced them in the first issue of Your Witness.
However, we want to compile sufficient to allow us to
run the service for at least 12 months. If you can offer
a contribution, it will take us that much closer to being
able to launch this novel and useful service.
The Nota Bene project is just one of the ways we enhance
the service offered by the Register – both
to you as a listed expert witness and to the many solicitors
who use the Register. It will involve circulating
to litigation lawyers vital kernels of information on
familiar topics which may be useful to them when considering
how to approach a particular case, but which would be
difficult for them to come by without first referring
to specialist or technical publications. The best sort
of Nota Bene will alert the solicitor to a particular
aspect of a case which might not be immediately obvious
but which could be the one on which the result turns.
The information will be distributed in the form of cards,
which we plan to mail to our subscribers at regular intervals.
The general form of the card can be gauged from the fictitious
mock-up shown alongside, each ‘note’ being between
20 and 50 words long.
If you feel able to contribute to this project, please
send or fax your Nota Bene to J S Publications
marked for my attention. The solicitors stand to benefit
from the information you provide, as a contributor you
would benefit from having your name and Register
number shown on the card, and we both benefit from the
increased market awareness of the Register that
the distribution of the cards will engender.
Chris Pamplin
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Card 1
Drink Driving
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The Intoximeter is designed
to recognise and compensate for acetone
in the breath, which absorbs light at the
same frequency as alcohol. However, methane,
which demonstrates the same absorption pattern,
is far more commonly present in breath and
is not recognised by the equipment.
Dr John Smith PhD FRCPath CChem No.123
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The Intoximeter is only
an approved instrument if it is functioning
correctly. However, functioning correctly
covers the entire machine. If the clock,
which plays no part in the analysis, is
wrong, then the machine ceases to be an
approved instrument and its evidence is
not admissible.
Dr Susan Jackson PhD MCB CChem No.789
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The Intoximeter readings
can be challenged on the basis that the
readings are too different. How different?
Government scientists say that a 20% difference
is acceptable because the equipment is measuring
two different breath samples. However, the
new Intoximeter aborts the analysis if the
readings are more than 15% apart.
Dr John Jones PhD FIBiol No.456
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Association update
The total number of those replying to our questionnaire
who have expressed an interest in joining an association
for expert witnesses has now topped the 500 mark, with
230 of them indicating that they would be willing to play
an active role in its affairs. Of these 230, 40 indicated
that they were very keen to be involved in its
formation, and they have been invited to a meeting this
month with a view to establishing a Steering Committee
charged with bringing the association into being. We will
be reporting on the outcome of this meeting in the next
issue.
Kate Porter
What to charge?
At their Expert Witness Conference in October, Bond Solon
distributed the results of a survey they had carried out
into the fees charged by experts attending courses the
firm had run this year. It showed that a tremendous variation
exists in charges, even by specialists in the same field.
Nevertheless, the survey gives a fair idea of the going
rate for most disciplines.
An intriguing finding of the survey is that a surprising
number of experts charge the same hourly rates for attendance
in court as they do for writing reports. Perhaps predictably,
it is accountants who on average charge the most for both.
The survey also reveals that 55% of respondents had no
standard terms of engagement under which they agreed to
take on expert witness work – which bears out one
of the more alarming findings of the survey we conducted
last May.
John Lord
Lord Woolf on expert
witnesses
The remit of the inquiry being undertaken by Lord Woolf
is to review the rules and procedures of the civil courts
of England & Wales with the aim of improving access
to justice and reducing the cost of litigation. In his
interim report, published in June, Lord Woolf sets out
a broad agenda for change and makes recommendations as
to how this should be acheived.
Lord Woolf identifies a number of key problems –
principally cost, delay and complexity. In his view these
problems persist, despite all previous attempts to deal
with them, because of the excessively adversarial culture
of civil litigation in this country. He concludes that
there is little chance of any comprehensive reform of
the present system succeeding so long as the management
of each case is left to the parties concerned, and he
advocates that this control should in future be exercised
by the courts. This would bring about fundamental changes
in the present, partisan use of expert witnesses.
Although Lord Woolf devotes only one of the 27 chapters
of his report to experts, it is his recommendations concerning
their use which have provoked the most controversy. With
the overall aim of encouraging a more cooperative approach
on the part of litigants and reducing the area of conflict
between them, he proposes that:
- it should be for the judge to identify the key issues
in dispute and decide what expert evidence will be needed
to help decide them
- the judge should also have the power, with or without
the agreement of the parties, to appoint a court expert
to report or give evidence on these issues
- greater use should be made by the courts of the existing
power to appoint assessors to help judges decide cases,
and these assessors might also preside over meetings
of experts
- experts instructed by one or other of the parties
should be given clear guidance that their first responsibility
is to the court and not to the party that engaged them
- an expert’s report should be addressed to the
court, contain everything the expert regards as relevant
to the opinion he/she has expressed and draw attention
to any matter which might affect the validity of that
opinion
- should experts be required to meet at the direction
of the court, it would be unprofessional conduct for
an expert to be given – or to accept – instructions
not to reach agreement
- once an expert has been instructed to prepare a report
for the use of the court, any communication between
him and the client or the client’s advisers should
no longer be the subject of legal privilege.
In addition to these general recommendations, Lord Woolf
also makes a number of detailed proposals concerning medical
specialists which are principally designed to reduce the
delays and costs involved in PI cases.
At this stage it is difficult to predict how soon, and
to what extent, Lord Woolf’s proposals will be implemented.
He envisages producing two more reports before the Inquiry
is finished, and it is rumoured that he is already re-considering
some of the proposals made in the first. For example,
strong doubts have been expressed as to whether having
court-appointed experts would in fact reduce the cost
of litigation, given that in many cases the parties themselves
would still need expert advice on the strengths and weaknesses
of the technical facts in issue to decide how best to
proceed. In addition, many litigation lawyers have expressed
concern about the proposed loss of legal privilege in
communications with the experts they have instructed.
What is quite clear, though, is that the days of the combative
approach to litigation are numbered, that the courts are
set to take greater control of the litigation process
and that new roles for expert witnesses are likely to
emerge.
Watch this space!
John Lord
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