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Your Witness •
Issue 4 • June 1996
The Woolf Inquiry:
your replies
Regular readers of Your Witness will recall that
with the March issue of the newsletter they received a
copy of an issue paper on expert evidence. It was one
of six such papers dealing with aspects of the reforms
proposed by Lord Woolf which the Lord Chancellor’s
Department issued at the end of January and on which it
was inviting comment from interested parties.
Six weeks had been allowed for this consultation exercise
which, given the far-reaching importance of its subject
matter, is an unusually short period of time. Indeed,
it is a fair guess that many of those most crucially affected
by Lord Woolf’s proposals on expert evidence, namely
the experts themselves, might not even have heard of the
exercise before the closing date of 11 March had we not
circulated the issue paper to them.
Another matter which concerned us was that up to that
stage the only expert witnesses whose views had been actively
canvassed by the Inquiry Team were medical doctors. This
was perhaps inevitable given the amount of attention Lord
Woolf devoted to their problems in his Interim Report.
On our reckoning, though, they are outnumbered at least
two to one by experts in other fields, and it seemed to
us at least desirable that the Department should have
the benefit of comments from some of the others.
The Inquiry Team welcomed our suggestion that we reprint
the issue paper, circulate copies of it with Your
Witness and collate on their behalf the replies we
received. In return, they agreed to postpone the closing
date to the end of March. Even so, we could only allow
our readers 10 days in which to respond to the issue paper,
and in these circumstances it is commendable that so many
of you found time to do so in great detail.
In the event, 55 readers sent in comments, 44 of them
in time for us to be able to collate these for the Inquiry
Team. Of the 44, 14 were engineers, seven were scientists,
five were surveyors and seven were medical doctors.
All the replies received were duly forwarded to the Lord
Chancellor’s Department, together with the report
collating the comments they contained.As this ran to 22
pages, we can provide here only a summary of its findings
(overleaf). We hope, though, that this will be of interest
to the expert witness community at large. On its behalf,
as well as ours, we would like to thank those of you who
contributed to the exercise. Your efforts are also appreciated
by the Inquiry Team, as can be judged from the letter
reproduced here.
Chris Pamplin
Lord Chancellor’s Department
Selborne House
54–60 Victoria Street
London SW1E 6QW
3 April 1996
Dear Chris,
Thank you very much for your letter of 2 April
and for the summary of the responses (and the
responses themselves) to the expert evidence
issue paper which you circulated to the experts
in the UK Register of Expert Witnesses.
I am very grateful to you and to those who
responded for all your work on behalf of Lord
Woolf’s Inquiry. The summary, report and
individual comments are extremely useful and
will be of great help to us. Your response is
particularly welcome because it represents the
views of experts in a diverse range of specialities.
My grateful thanks again.
I Johnson, Woolf Inquiry Team
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The replies...
1. Court-appointed or neutral experts
- Considerable doubts were expressed about the wisdom
and practicality of this idea.
- Many experts felt that because ‘grey areas’
exist, there was a real risk that justice would not
be done if the court was to rely on just one interpretation
of the facts at issue.
- Many were sceptical of experts being appointed by
professional bodies.
2. Narrowing issues between experts
- The majority of respondents were in favour of more
use being made of experts’ meetings.
- Many suggestions were made for making such meetings
more productive.
- Only a minority had ever been instructed not
to reach agreement, andall agreed that the practice
was iniquitous and should be outlawed.
- There was almost unanimous opposition to the use of
cost sanctions to discourage over-long reports.
3. Impartiality of experts
- There was a general welcome for the recommendations
summarised in paragraph 18 of the issue paper.
- The majority of respondents regardedthe removal of
legal privilege as undesirable, and even counter-productive.
4. Improving the quality of reports
- There was general acceptance of the need for more
and better training in the skills required of expert
witnesses.
- However, few respondents thought training should be
made compulsory or that trained and accredited experts
should alone be permitted to appear before the courts
or to prepare reports for their use.
- First priority must be that experts are top-notch
in their profession, and other requirements, however
desirable, are secondary.
- There are dangers in encouraging the development of
the work of the expert witness as a new profession.
5. Widening the choice of experts
- Many respondents pointed out that there was no lack
of choice in their field.
- Several considered that the real issue was the need
to make more efficient use of the expertise already
available.
- It was suggested that legal advisers might be prepared
to engage less senior experts if the court-appointed
assessors chaired experts’ meetings.
6. Access to evidence: inequality of resources
- Only a handful of experts responded to this section
of the issue paper, but of those who did, several wondered
whether the solution proposed (requiring the defendant
to provide the claimant with an in-house expert’s
view of the latter’s case) could work, seeing that
the expert might not be impartial or might not be thought
to be so.
7. Experts’ attendance at trial
- Those respondents who were medical doctors confirmed
the inconvenience suffered when required to attend court.
- The non-medical experts, on the other hand, tended
to regard court appearances as an inevitable, even advantageous,
part of their job.
- There were mixed views on the use of video technology,
with several respondents expressing concern that expert
evidence might not then be subjected to cross-examination.
- There was general support for the improved timetabling
of cases.
- There were suggestions for penalising legal advisers
who make last-minute settlements of their clients’
cases.
John Lord
Profiles please
Our free profile information service to subscribers has
been a great success. Solicitors certainly appreciate
the extra information they receive from these summaries.
We have had some complaints, though, that occasionally
the profile sheets do not add significantly, if at all,
to the Register entry. So please spare some time
to think about your profile sheet. Is the information
it contains useful and does it expand significantly on
the information we already list in the Register?
If you have already submitted a profile but would like
to amend it, please send in a completely new version for
scanning into our database. If you have not yet supplied
a profile but would like to do so, please post it to us
as soon as possible.
For more details about what to include in your profile,
see the enclosed A4 sheet.
Kate Porter
Court report
Here is a further instalment of recent cases
concerning expert witnesses. Both the judgements summarised
here questioned whether the experts called had contributed
anything to the trial but expense!
While delivering the judgement of the Court of Appeal
in a road traffic case (Liddell -v- Middleton,
July 7, 1995), Lord Justice Stuart-Smith deplored the
tendency in recent years for parties in such cases to
enlist the services of accident reconstruction specialists
whether or not their evidence was really needed.
In the case under appeal, the judge trying it had needed
to determine what had happened and to deduce from that
where the negligence lay and whether it caused the accident.
In some road traffic cases, expert evidence was necessary
and desirable to assist the judge in reaching primary
findings of fact (for example, where there had been no
witnesses capable of describing what had happened or in
providing information not available to a layman about
the speed of a vehicle at the time of its accident). Experts
were not entitled, though, to conclude from the statements
of eye witnesses that the driver should have sounded his
horn – and still less that his driving had been grossly
negligent, as had happened in this case. Such matters
were for the trial judge to decide, and the opinions of
experts on them were entirely irrelevant and inadmissible.
Lord Justice Stuart-Smith went on to say that in road
traffic cases it was the exception rather than the rule
that experts should be required. If the plaintiff was
legally aided, the Legal Aid Board should not authorise
the employment of one without the opinion of counsel as
to the necessity of expert evidence; and if the court
took the view that expert evidence had been called unnecessarily,
it could – and should – invite the taxing master
to consider whether the cost of obtaining it had been
reasonably incurred.
Last year Lord Justice Staughton was no less forthright
while delivering the judgement of the Court of Appeal
in Rawlinson -v- Westbrook and another. He noted
that while the Rules of the Supreme Court allowed a judge
to limit the number of experts who could be called, they
did not permit the exclusion of such evidence altogether.
As a result, courts were frequently treated to the spectacle
of litigants rushing like lemmings to their doom by engaging
experts unnecessarily.
In the case under appeal, there had been no need at all
for the expert evidence that had been called, and the
taxed costs were totally absurd. Both of the parties were
chartered surveyors and could have given the relevant
evidence themselves. Yet every litigant, or his solicitor,
thought that he had to have at least one expert to give
evidence for him. To save litigants from that folly, it
was suggested that the Rules should be changed to enable
courts to refuse to hear any expert evidence at trial.
John Lord
Tools of the trade
Mr Harry Kenyon’s letter in our last issue has prompted
replies from two readers, one in support of his views
and the other not.
Dr Malcolm Salter writes:
‘I believe taxing masters are showing an extremely
blinkered view in regard to modern technology. It is reasonable
to expect expert witnesses to have certain tools for the
trade. In my field of materials engineering I would regard
a motor car, a camera and, indeed, a PC for preparing
reports as coming into that category. The first of these
is charged for at an effective depreciation rate upon
generally agreed mileage figures. In other words, the
tool for the trade is the car, but a charge for its use
is acceptable to taxing masters. The other two items are
covered by my daily consultancy rate.
In carrying out materials investigations it is possible
to take a very tortuous classical route to solve a problem
and to charge for this at the appropriate hourly rate,
all of which would presumably be acceptable to a taxing
master. However, I would much prefer to use state-of-the-art
equipment, for both quicker turn round in report preparation
and greater confidence in the results reported. Such equipment
can cost as much as £300k, and I could not possibly justify
laying out such sums. I would instead need to rent time
on the equipment. Even so, its use should reduce the overall
cost of the investigation.
The principle we are talking about is that of ‘quality
assurance’, i.e. achieving the right result, in the
right place, at the right time and at the most effective
cost. Reliance on state-of-the-art technology in presenting
expert evidence is bound to increase, but it is unlikely
that many individual experts or small consultancies will
ever be able to afford the purchase of the necessary equipment.
In deciding whether or not to allow charges for its hire,
what taxing masters should be considering above all else
is whether use of the equipment has proved cost-effective.
I believe that the problem posed by Mr Kenyon needs clarifying,
or expert witnesses will simply have to increase their
daily rates to cover the extra expenses they will be incurring.’
Mr Robert Hill writes:
‘I was very surprised to read Mr Kenyon’s letter
in the last issue of Your Witness. I am also a noise and
vibration consultant, and the company that I work for
charges clients in one of two ways. We charge either on
a time basis, using an hourly rate that covers all our
overheads including the capital cost of our instrumentation,
or on the basis of a fixed price for a particular test
or piece of work. In the latter case the fee would also
be inclusive of the use of any instrumentation involved.
We certainly do not regard it as ‘usual’ for
the noise and vibration business to make an additional
charge for the use of instrumentation. To do so smacks
to us of deceiving the client into believing that he is
being offered a particularly competitive rate and then
hitting him with the hidden extras at the end.
The analogy with mileage charges for motor vehicles is
a false one, because the ‘mileage charge’ is
in effect a method of scaling the additional on-costs
of travelling to a distant site. I also believe that the
advice from the Association of Consulting Engineers to
which Mr Kenyon refers raises other issues about how their
standard salary multipliers have been formulated, but
I am not familiar enough with that guidance to argue the
case strongly.’
Read the context
In our last issue we drew attention to a case
in which the court allowed an expert witness to be cross-examined
about evidence he had given in a previous, quite unrelated,
hearing. In case you should ever be faced with such a
situation, Mr R J Grogan has this advice
to offer on how to tackle it. He writes:
‘The item under the heading ‘Court Report’
raises wider issues, particularly for anyone likely to
be drawn into giving evidence (testimony) in the USA.
In America, it is normal practice to require depositions
to be taken before trial. The witness gives his evidence
on oath in front of attorneys representing the various
parties, and the proceedings are recorded – usually
by shorthand and on tape, but increasingly on video as
well. The depositions can then be produced as evidence
at trial. If I interpret the system correctly, this procedure
is designed to prevent ‘trial by ambush’. It
also means that cross-examining counsel has access to
a storehouse of evidence you have given in other cases.
During the course of a deposition, an expert witness
is almost certain to be confronted by previous testimony
he has given, usually taken from depositions, with the
object of showing inconsistency. Wherever this happens,
be it in the USA or in this country in similar circumstances
to those which occurred in Leeds and London Estates -v-
Paribas (No. 2), my advice is: ‘always insist on
reading the full context’. This will inevitably cause
delay, there will be cries of distress, bad temper, suggestions
that you are impugning the honesty of cross-examining
counsel, or that you must be singularly feeble-minded
not to remember what you said on a previous occasion.
You will be accused of playing for time, but why not?
Can you remember every case, every piece of evidence,
all the details? Often I find that it is clear, and was
only too clear to the questioner, that the apparently
inconsistent evidence he was citing is not inconsistent
at all, being related to different circumstances or conditions.
It is all part of testing one’s credibility, and
we should be prepared to meet the challenge and accept
it as valid, providing we are alert to the pitfalls and
refuse to accept everything at face value. But then as
experts we never do, do we?’
To use, or not to
use
Since we introduced the facility in Spring 1995, more
than 350 of you have ordered stickers of our logo or reproduced
it on your stationery. Not everyone, though, who is listed
in the UK Register of Expert Witnesses approves
of the logo’s use in this way, Mr Graham Shellshear
among them. He writes:
‘I am concerned about the use made of your logo
in the letter headings of those who advertise their services
as experts. I, too, have an entry in the Register which
I have paid your firm to include. The only other requirement
for inclusion was that I had to supply you with the name
of a solicitor who might provide a reference for me.
J S Publications is not a ‘professional body’,
and an entry in its Register does not mean that person
is any better qualified as an expert in his or her particular
field. Therefore a logo stating that one is ‘registered’
is neither a qualification nor a indication of excellence.
It is my view that reproduction of such information in
a letter heading is liable to give the wrong impression,
and I am concerned that someone who is not aware of the
exact nature of your Register (and that includes many
in the legal profession) might take the view that an expert
who uses the logo in this way is better qualified than
one who does not.
The fact that such a logo was produced in the first place
is confirmation that experts are being encouraged to advertise
their inclusion in the Register, but I can see no justification
for the practice. I believe it to be inappropriate and
could tend to devalue proper professional qualifications
that have been truly earned.’
Mr Shellshear raises an important issue. Our own position
has always been that inclusion of an entry in the UK Register
of Expert Witnesses should not – indeed, cannot
– be taken to imply anything about the standing,
qualifications or competence of the expert concerned in
his or her professional field. All that we do claim is
that we have taken appropriate steps to check that applicants
for inclusion have experience of acting as expert witnesses,
and that at least one solicitor who has instructed them
has confirmed to us in confidence that he or she would
commend their use as such to other members of the legal
profession. Only in these respects does the Register
logo signify anything at all.
We would be glad to hear from other readers who have
views on this subject or on the related one of accreditation
of expert witnesses.
How not to treat
your expert
Mr N H Harris has sent us a copy of a letter he has written
to the Lord Chancellor’s Department complaining of
his treatment by the trial judge in a case for which he
has now been subpoenaed to appear as an expert witness.
We agree with him that the position taken by the judge
runs directly counter to everything that Lord Woolf’s
Inquiry seeks to achieve in improving the quality of civil
justice in England and Wales, especially with regard to
making better use of those medical specialists who are
willing to act as expert witnesses. With MrHarris’s
permission, we are reprinting here an edited version of
his letter of protest, omitting of course the names of
the parties, of the defendant’s solicitors and –
for the time being at least – of the judge.
We would be interested to hear whether any of our other
readers have been subjected to similar treatment as that
experienced by MrHarris in this instance.
‘In October 1994 I was instructed as an orthopaedic
expert by solicitors acting for the defendant in a highly
complex case arising from an accident in 1985. Since then
I have prepared two reports, arranged special investigations
and attended a conference.
The case is due to come to trial in Liverpool this October.
On 17th April there was a hearing before the trial judge
to fix the date for the trial, and shortly before this
I advised my instructing solicitors of the days I was
committed elsewhere. Despite this, the judge settled on
21st, 22nd and 23rd October, in full knowledge of the
fact that I had previously agreed to attend a trial in
Cambridge on those dates. He stated that the defendant
would not be prejudiced by my non-attendance, but if his
solicitors thought otherwise they should find another
expert! They have now told me that they have no choice
but to subpoena me, and that I must ask the solicitors
in the other case to request a change of date for their
trial.
I offer the following comments:
1. What is the point of providing unavailable dates if
they are ignored?
2. I have no hesitation in saying that my evidence is
of critical importance for deciding what is a very large
claim. Surely instructing solicitors and counsel are the
best judges of whether or not expert evidence assists
their case.
3. It is ludicrous to suggest at this late stage that
another expert be instructed. No-one of sufficient standing
would be available to examine the plaintiff and prepare
a report inside 6 months. Solicitors should not be told
to change their chosen expert, and moreover one who has
worked on the case for some time, just to suit the court’s
timetable.
4. It is unreasonable for the court to put me in this
impossible position, when I have given it prior notice
of a commitment to attend a trial elsewhere.
5. We can all agree that delay and cost are important
considerations, but they must not be allowed – as
in this case – to override the interests of justice.
Lord Woolf, I know, is anxious to provide a climate whereby
more senior doctors will be willing to act as expert witnesses,
but the attitude adopted by the trial judge in the case
I have instanced is guaranteed to have the opposite effect.
When trial dates are fixed they must take account of the
prior commitments expert witnesses have to attend court
elsewhere. A delay of a few weeks until all of the experts
are available should not disadvantage either of the parties,
whereas contempt of the needs of expert witnesses, and
of the contribution they can make in deciding the case,
almost certainly will.’
Mr N H Harris FRCS
Consultant Orthopaedic Surgeon
Can you help?
Are you dissatisfied as well?
Sir
The Law Society Directory of Expert Witnesses is an important
publication in that by carrying the Law Society’s
approval it appears to be a definitive statement of available
expertise. However, I have encountered a considerable
amount of dissatisfaction with this Directory from a number
of sources. I should be grateful if anyone interested
would write to me giving the following information:
1. Does the Directory list your expertise correctly and
fully as you detailed in your copy to them?
2. Does your entry appear in the Directory in a position
where your potential clients are likely to come across
it when searching for your particular expertise?
3. Is there likely to be any impact on your business
as a result of this Directory?
4. Will you subscribe to this publication in its current
form at a future date?
Dr Audrey Giles
Manor Lodge, North Road
Chesham Bois, Amersham, Buckinghamshire, HP6 5NA
Information required pertaining to landfill sites
and public health
Sir
We are most interested in hearing from anyone who may
have pertinent information or specific knowledge about
the health risks associated with residential proximity
to domestic and industrial waste landfill sites.
If you can help, please contact Dr J Ousey telephone
01638 750828 or e-mail: ibell @cix.compulink.co.uk
Dr J Ousey
7 Danehill Cottages, Kennett, Newmarket, CB8 7QX
Society update
In response to the letter from the Society of Expert Witnesses
sent out with our last issue of Your Witness,
the Society now has a founder membership in excess of
300.
For those who did respond to their request for support,
please note that cheques will be cashed in the near future
and VAT receipts issued. The unforseen delay was caused
by ‘over-zealous’ officials at Company House.
These have now been resolved and the Society will shortly
be assigned its company number.
The Steering Committee thank all the founding members
for their patience. The first Society newsletter will
be sent to all founding members in June.
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