Issue 3 March 1996
Society of Expert
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.
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.
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
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!
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.
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 Kenyons 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
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?
Should experts obey
the cab-rank rule?
Drama lovers will remember the tense moment in Terence
Rattigans 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 boys 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 clients 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
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
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 architects 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 experts evidence by showing it to be
at odds with opinions he or she had advanced in previous
An interesting example of this arose last year in a rent
review arbitration. The tenant sought to issue a subpoena
against the landlords 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!
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
of Your Witness), Bond Solon Training reported
the outcome of their fees survey; and now a working group
attached to Lord Woolfs Inquiry has conducted one
among specialists in medical negligence cases. We are
indebted to the groups co-ordinator, Sarah Leigh,
for the information on which the following summary is
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
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 Solons 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 groups 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
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 groups 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
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
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 Woolfs 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.
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 sides
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.
The trouble with
As I noted in my article in the last issue of Your
Witness, one of the more controversial of Lord Woolfs
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
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
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 experts 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
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 Woolfs
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.