Your Witness • Issue 3 • March 1996

Society of Expert Witnesses
Thank you!
New team member
Tools of the trade
Should experts obey the cab-rank rule?
Court report
More survey results
Comment
The trouble with court-appointed experts

Society of Expert Witnesses
The last issue of Your Witness reported that a meeting had been convened to explore further the possibility of setting up a new organisation to which all expert witnesses could belong. Forty expert witnesses who had already indicated that they were very keen on the idea were invited to this meeting, which took place in Chorley, Lancashire on 8 December 1995.

Following a full day of discussion, the experts present agreed to set up a Steering Committee charged with the duty of bringing the Society of Expert Witnesses into being and building up for it a founding membership. This committee elected from its number a Forensic Physician, Dr Andrew Saywood, as its Chairman; a Consultant Surgeon, Mr Richard Cory-Pearce, as Vice Chairman; a Chartered Accountant, Mr Patrick Maher, as Treasurer; and myself, a Chartered Surveyor, as Secretary. The other six members of the Steering Committee are: Mr Peter Blockley (Chartered Architect), Mr Frazer Imrie (Forensic Biologist), Mr John Morris (Accident Reconstruction Consultant), Mr Geoffrey Read (Chartered Engineer), Mr Ken Robinson (Banker) and Mr John Thring (Consulting Engineer).

At this stage, the single aim of the Society is to ‘promote excellence in all aspects of the service provided by expert witnesses’. However, the Steering Committee is clear that the development of the Society has to be directed by its members. Accordingly, we have asked JSPublications to enclose with this issue of Your Witness a letter from Andrew Saywood inviting you to become a founding member. I hope you will decide to support us in this way and play an active part in building a Society that provides you with the services you need.

John Jarvis

I am pleased that J S Publications has been able to play a role in facilitating the formation of the Society of Expert Witnesses. The disparate disciplines covered by expert witnesses can often mean that the forensic aspect of their work is very lonely. You can ask your professional colleagues if you have a technical query relating to your field of expertise. But all too often there is no-one you can turn to for advice on your work as an expert witness. It is just this kind of help that the Society aims to provide, and I unreservedly recommend membership to you.

Chris Pamplin

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Thank you!
The first 3 months of the year are hectic ones for Kate and myself because this is the time of year when draft entries are amended by all individuals who wish to be included in the main edition. Many of you have spoken to us in the course of clarifying your entry details and we hope that we have been able to clarify any queries you had.

The whole operation of checking, amending and chasing outstanding drafts has gone more smoothly than ever before – thanks largely to those of you who dealt with our correspondence promptly. With some time left before going to press, we have managed to process some 2,400 drafts, more than ever before.

Now, though, far from putting our feet up, Kate and I will be available to provide assistance, should you require it, throughout the rest of the year!

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New team member
Each year the Register grows ever larger. This growth means we need to work even harder to ensure that as many litigation professionals as possible have ready access to the Register. Whilst J S Publications’ exclusive focus on the Register allows us to offer you a personal and attentive level of service, it also means that we are unable to bear the cost of the usual media-based approaches to marketing commonly adopted by the large publishing houses.

All our sales and marketing efforts are channelled through mailshots and direct contact with potential customers, and we are pleased to welcome Debby Dyson as our latest recruit. Debby will be concentrating on getting more solicitors using the Register. If you have any ideas or suggestions for ways of promoting the Register, Debby would be delighted to hear from you.

Chris Pamplin

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Tools of the trade
Mr Harry Kenyon writes:

I am a Noise and Vibration Consultant and have to use a variety of expensive instrumentation to take necessary measurements for presentation in court. By expensive, I mean that the capital cost of this instrumentation can amount to 50% of my annual turnover.

Within the ‘noise and vibration’ business it is very usual for consultants to make a modest charge for the use of this instrumentation. However, in a recent case my charge for it was disallowed by the taxing master with the comment ‘a plumber makes no charge for the use of his tools’.

As my instructing solicitor may be appealing this decision, I am writing to enquire if your readers are aware of any legal authority for the charge I made...

We showed Mr Kenyon’s letter to our own legal advisers who took the same view as the taxing master. In their opinion, too, an expert witness should have the equipment necessary to carry out any tests required as part of the service he or she is offering as an expert, and that a charge for its use is not allowable under the taxation rules. The only suggestion they could make for getting round the problem was for Mr Kenyon to step up his hourly rate to cover such expensive overheads. He, though, remained unhappy with the situation, for the cogent reasons advanced in a second letter:

I doubt if this matter is quite as simple as it appears...

The Association of Consulting Engineers, to whom all the major civil engineering consultancies belong, advises its members to show the cost of computer programs, suitably amortised, as a separate part of their quotations.

Sound level meters, like computer programs, vastly reduce the cost to the client by reducing billable hours. It is plainly ridiculous to acquire an expensive asset in order to bill for less hours without making some charge to the client for the acquisition of that asset.

Taxation masters have no trouble with mileage charges for motor vehicles, yet a significant proportion of such charges is to cover the cost of the depreciation of the vehicle.

What difference is there between using a mileage basis to charge for the depreciation of a vehicle and a daily hire basis for the use of a sound level meter?

We agree with Mr Kenyon that allowing mileage charges but not hire charges is inequitable. How, we wonder, do other expert witnesses in the technical field cope with the problem he poses?

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Should experts obey the cab-rank rule?
Drama lovers will remember the tense moment in Terence Rattigan’s The Winslow Boy when the famous QC, having broken down the schoolboy accused of theft with his ferocious questioning, announces to the world that he will take on the boy’s case, as he believes the boy to be innocent.

Readers of Your Witness, experienced in English litigation as they are, will know this scenario to be unlikely. A barrister who only took on clients who told the truth would get very hungry. There is also a professional rule among barristers, known as the ‘cab-rank rule’, which is intended to prevent them taking on only those cases which they think they will win. The rule says, in effect, that provided a barrister has sufficient time and the necessary expertise, he or she will take on any case which is offered; like a taxi-cab at a rank.

Should expert witnesses follow the same rule? Every expert who operates from witness statements has had to deal with an unlikely statement which he is asked to accept as fact. Does he accept the statement, knowing that he is likely to have to reverse his conclusions at trial, or does he undermine his client’s case by dealing with the possibility he is lying?

The only possible answer to this situation is to state very clearly in the report what assumptions are being relied upon. If necessary, the expert should agree with the instructing solicitors what alternatives should be canvassed. Experts who are wary of criticising the client in this way should remember that the expert whom lawyers hate most is the one who does not ‘come up to proof’ at the hearing.

Philip J Palmer LLB

Mr Palmer is a Practising Solicitor who is also an expert witness in conveyancing matters

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Court report
The case law on expert witnesses is fairly sparse, but there were some notable additions to it during 1995. We have already alerted you to the outcome of one case in our covering letter distributed with the December issue of Your Witness: here are summaries of a couple more.

In Cala Homes (South) Ltd and others -v- Alfred McAlpine Homes East Ltd, Mr Justice Laddie took to task an eminent architect who had prepared the report on which the defendant company relied. In court, the expert witness had acknowledged that the principles he had adopted in preparing the report conformed to those he had set out in a journal article some years previously. We do not have the space to discuss here the merits of that article. It is merely sufficient to note that MrJustice Laddie took strong objection to it, and in consequence chose to treat the architect’s report as a partisan tract of no assistance to the court in deciding the case.

In this instance the expert witness had at least adopted a consistent position. In others, counsel may seek to undermine an expert’s evidence by showing it to be at odds with opinions he or she had advanced in previous cases.

An interesting example of this arose last year in a rent review arbitration. The tenant sought to issue a subpoena against the landlord’s main valuation witness, requiring him to produce his evidence in arbitrations of two earlier and quite unrelated rent reviews. It was held (in Leeds & London Estates -v- Paribas (No. 2), 1995) that the evidence given in one of them should be disclosed and that the expert could be cross-examined on it. As the judge said, ‘If a witness were proved to have expressed himself in a materially different sense... that would be a factor which should be brought out in the interests of the litigants and in the public interest’.

The message here for expert witnesses would seem to be ‘Watch out!’ Counsel for the opposing side is entitled to cross-examine you about the principles you adopted in preparing your evidence, and may try to show that the opinions you hold now are not those you advanced in previous cases of a similar kind.

You have been warned!

John Lord

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More survey results
We appear to have started a fashion in surveys of expert witnesses. Only weeks after we published the results of our own (in issue 1 of Your Witness), Bond Solon Training reported the outcome of their fees survey; and now a working group attached to Lord Woolf’s Inquiry has conducted one among specialists in medical negligence cases. We are indebted to the group’s co-ordinator, Sarah Leigh, for the information on which the following summary is based.

This latest survey had a narrower focus than its predecessors, and its results show some intriguing differences from theirs. It also breaks new ground in a number of important respects. The survey questionnaire was sent to 1,700 experts, of whom 704 replied. All the respondents were medical practitioners, of course, and it is apparent that the great majority of them were experienced expert witnesses as well.

The average hourly rate of the medical specialists surveyed by Bond Solon was 79, and their average fee per report 249. From the new survey, though, it would appear that expert witnesses in medical negligence cases charge appreciably more than this, averaging 110 per hour and 398 per report. They also charge on average 731 for spending a day in court, which is much greater than the average fee of 566 revealed by Bond Solon’s survey.

Though their output of reports is greater than almost any other category of expert witness, only 22% of the specialists in medical negligence cases who replied to the working group’s questionnaire claimed to have had any formal training in report writing. Exactly the same percentage had been trained to give evidence in court, and just 23% had had formal instruction on the duties and responsibilities of expert witnesses. These are far smaller percentages than for expert witnesses in general, of whom we found last year that 43% had received training. Perhaps because of this almost everyone responding to the new survey thought more training would help, with 45% taking the view that one body should be responsible for training, accrediting and monitoring medical expert witnesses.

In his Interim Report, Lord Woolf draws attention to the heavy workload of most medical experts and the delays that can result from it. The working group’s survey bears this out in several ways. Thus, while those replying to it spent an average of 5.7 hours on each report they wrote, it took them an average of 33 days to produce it. In part, no doubt, this is because at least half of them are employed by the NHS and have other, more pressing, commitments. Indeed, 50% complained of difficulty in finding time to do reports, and 24% of getting time off to go to court or attend conferences. Another gripe mentioned by more than 70% was the disruption to their clinical work caused by late settlements.

When asked for their views on the present system, 81% felt it was too slow and 61% that it was too adversarial. On the other hand, only a minority felt it was unfair to doctors or to patients, or unjust in its effects. As to the proposed reforms to the system, 74% were in favour of increased openness about medical accidents and in litigation, and 81% again were in favour of a quick simple method of resolving claims under 10,000 for a proportion of their value.

John Lord

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Comment

Implementation of Woolf
The Access to Justice review currently being undertaken by Lord Woolf has laudable aims. It is attempting to tackle the three problems facing civil justice today: cost, delay and complexity. These issues are linked and arise from the unmanaged process that is litigation.

Lord Woolf is not the first to consider these issues. Since 1851 there have been some 60 reports concerning civil procedures and the organisation of the civil and criminal courts in England & Wales. The most recent antecedent of the current review was the 1985 Civil Justice Review (CJR).

The major problem that all these reviews suffer from emanates not from the reports themselves but from the failure of Parliament to implement them fully. The CJR recognised that many of the problems in civil justice stemmed from management of the litigation by the litigants and their legal advisers. The CJR proposed court control as part of its major package of reforms. This recommendation was not implemented, and in Lord Woolf’s words ‘a significant opportunity for reform was lost’.

Lord Woolf proposes a similar change to judicial case management which he considers ‘crucial’ to the reforms he is recommending. But will his recommendation be implemented when so often similar proposals have not? The fear must be that the judiciary will be given the task of managing cases, but will not be given the training or logistical support to properly execute that role.

Small claims
In January the monetary limit at which a civil dispute comes under the small- claims procedure was raised from 1,000 to 3,000. The small-claims procedure forces disputes into arbitration. Its main aim is to ensure that the cost of pursuing a claim is in some way proportional to its value. Apart from being arbitration rather than litigation, the other key feature of the procedure is that it is a ‘no costs’ regime. In other words, neither party will end up having to pay the other side’s costs. The practical effect of this is to remove legal representation from most small-claims cases.

Since its introduction in 1973, the small-claims procedure has become a principal component in the provision of access to justice in terms of the number of hearings: 87,885 small-claims hearings against 24,219 full trial hearings in 1994. The small-claims procedure is such that the arbitrator, in practice a district judge, can adopt any method or procedure that they consider to be fair and that gives to each party an equal opportunity to have their case presented. For many litigants-in-person, the less formal arbitration approach represents an acceptable solution in a small-claims situation.

Expert witnesses, however, may find themselves with a particular problem. In most small-claims cases neither side can afford to have legal representation. But what if you have a problem with your instructing solicitor not paying? If the amount is below 3,000, which I suspect accounts for the majority of instructions, any legal action you take will be dealt with by the small-claims procedure. You, however, will not be like most litigants- in-person. You will be jousting against a solicitor. In effect, the small-claims procedure will result in you having to act in person against a trained lawyer!

So beware! Make sure that you contract with your instructing solicitor in such a way as to minimise the risk of ever having to meet him or her across the small-claims table.

Chris Pamplin

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The trouble with court-appointed experts
As I noted in my article in the last issue of Your Witness, one of the more controversial of Lord Woolf’s recommendations concerning expert witnesses was that a court should have the power, with or without the agreement of the parties, to appoint an independent expert to report or give evidence to the court. In this he had the influential support of the London Solicitors’ Litigation Association, which in its submission to the Inquiry went so far as to claim that the exercise of such a power ‘would reduce and probably eliminate many of the problems currently associated with experts’.

In his Interim Report, Lord Woolf summarises the comments he received on this topic in the following terms: ‘The need to engage experts was a source of excessive expense, delay and, in some cases, increased complexity through excessive or inappropriate use of experts.’ It is, however, by no means clear to me that the use of court experts would generally – still less, invariably – improve matters.

As it happens, the Rules of the Supreme Court already allow for the appointment of an expert by a court. At present, though, this can only be done at the request of one of the parties to the dispute, and up to now they have rarely availed themselves of that opportunity. Lord Woolf blames their reluctance to take advantage of this provision on the excessively adversarial nature of civil litigation in this country, and he proposes that in future it should be the judge who decides whether a court expert is needed.

Commentators in the legal press have not been slow to point out possible adverse effects of having just one expert reporting on matters which may be highly technical. Might there not be a risk, they ask, in the court expert rather than the judge deciding the case? Then again, what of those frequent cases when it is genuinely possible to interpret the facts in more than one way? With only one expert reporting on them, can we be sure that all the possible interpretations will be fully aired? What, indeed, has happened to that age-old principle that the best way of arriving at the truth is to hear good arguments from both sides.

To be sure, Lord Woolf himself alludes to these and other criticisms in his report, but he concludes (Chapter 23, para. 23), ‘The court is perfectly capable of deciding which cases would be appropriate for a court expert and then appointing an expert with the necessary qualifications and ensuring that he is used effectively.’ To deflect the charge that this might create a sinecure for a limited group, he goes on to say, ‘In the normal way parties can be left to agree on an expert, and if they cannot agree, there are numerous professional bodies who would be prepared to make the appointment at the request of the court.’ To my mind, though, this latter suggestion poses yet more problems. For one thing, few such bodies are at present capable of evaluating their members’ competence as expert witnesses; and for another, there are many expert witnesses whose claim to expertise does not depend on qualifications derived from membership of any professional organisation.

Perhaps more worrying still, Lord Woolf makes no recommendation as to who would prepare the court expert’s instructions. Yet as all expert witnesses know, the skill with which instructions are drafted can be all-important in focusing their attention on the issues on which the case will ultimately be decided. Even if it should turn out that instructions for court-appointed experts are to be framed by the court after receiving submissions from both parties, that might still require the judge to perform a tricky balancing act. It is not too difficult to foresee cases being subsequently appealed on the grounds that the instructions given to the court expert did not adequately address issues crucial to the party which lost at first instance.

Another major objection to the appointment of court experts is that in many instances it would increase, rather than reduce, the cost of litigation. After all, writing a report for use in court and giving evidence from the witness box are only two of the ways in which experts assist in litigation. Very often their initial role is to help establish the facts of the case and assess its merits. Then later on they are quite likely to be called upon to advise on how the technical arguments advanced by the other side may be rebutted. In such circumstances, it is highly unlikely that either party will dispense with the services of experts of their own just because the court has appointed one.

As the Court of Appeal has recently reaffirmed, existing rules of court do not permit a judge to exclude expert evidence where the parties wish to use it – though the judge may, of course, disregard the evidence if it is irrelevant, or worse. Lord Woolf, on the other hand, would change all that and give the judge the power to limit the parties’ freedom to call any expert they choose. Indeed, it would be surprising if he were to recommend otherwise, for without this power the appointment of court experts could result in cases taking even longer to hear – and incurring yet more expense – than they do now.

Lord Woolf seeks to reassure those worried by the prospect of a court relying on the expert evidence of just one individual, pointing out that the parties would still have the right to cross-examine that expert. This, though, might well create further problems. Suppose, for example, that the lawyers for one side had initially advised their client that expert evidence would be needed to buttress the case they would be arguing, simply because they did not have the technical know-how to present it themselves. If the judge should subsequently decide that only a court-appointed expert was to be called, the lawyers’ plans for dealing with the case might well have to be changed. If the case was then lost, the client could easily blame his lawyers for not doing what they had originally said they would do – and even accuse them of incompetence.

To my mind, the test against which Lord Woolf’s proposals need to be measured is not whether they save money or reduce delays in the hearing of cases, important as those objectives undoubtedly are, but whether they can do so without harming the cause of justice. In so far as the use of court-appointed experts might deny parties the opportunity to deploy their arguments fully to the best of their advocates’ abilities, I cannot see it achieving that end.

John Lord

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Disclaimer
The information contained in Your Witness is supplied for general information purposes only and does not constitute professional advice. Neither J S Publications nor the authors accept responsibility for any loss that may arise from reliance on information contained herein. You should always consult a suitably qualified adviser on any specific problem or matter.
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