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Your Witness •
Issue 6 • December 1996
Expanding choice:
our response to Woolf
I have always believed that the UK Register of
Expert Witnesses should offer the very best value
for money. This belief applies to both sectors of our
market: the experts listed and the solicitors and others
who purchase the Register. However, as the Register
grows ever larger, and the marketplace gets crowded, the
ways in which we provide value for money need to be kept
under constant review.
I have also been considering one of the problems identified
in the Woolf Report. Lord Woolf remarked on the lack of
choice in some areas of expertise. Wider circulation of
the Register would certainly help alleviate this
particular problem.
Historically the Register has been sold on subscription.
You benefit because the income from sales allows us to
keep your costs low. The down side from your point of
view is that any system requiring solicitors to make purchase
decisions inevitably cuts down the Register’s
circulation.
There are several approaches we could adopt, but the
best would seem to be to move from a subscription-based
method of distribution to one of controlled circulation
of copies supplied free of charge.
We will be targeting that segment of the legal profession
which accounts for 80% of its total income and undertakes
virtually all its litigation work. This change alone will
result in a 4-fold increase in the circulation of the
Register. In my view it should also rid you of
speculative publishers of one-off directories, because
lawyers, given this opportunity to choose their source,
are unlikely to opt for the untried, unvetted one.
There is, of course, a cost implication for you. To make
good the drop in income from our solicitor customers we
will have to raise the annual administration fee to ~£40.
But by doubling your fee the Register can achieve
a far greater increase in circulation, which will obviously
improve the likelihood of you receiving instructions.
I started by saying that I have always believed the Register
should offer the best value for money. I hope you feel
that this change in circulation method, and the concomitant
increase in your fee, represent the continuation of this
ideal. In brief, it should ensure that your details will
be available to almost every litigation lawyer in the
UK.
All current and past solicitor subscribers to the Register
will be included on the circulation list for the 10th
edition, and we are now adding to it other active litigation
firms. If you wish to nominate a solicitor for inclusion,
please let us know (in writing) and we will be glad to
consider adding his or her firm as well.
Chris Pamplin
Representation or
accreditation?
In the beginning was the Academy, and for 8 years it had
the field to itself. Then along came the Society, which
is about to celebrate the first anniversary of its conception.
And now we have the Institute. Is it any wonder that those
of you who have contacted us about this newcomer have
been asking, ‘Do we need yet another organisation?’
The Academy of Experts
It should be stressed immediately that the Academy
has wider scope than the other two bodies, aiming to promote
the use of experts in all fields of dispute resolution.
Since its establishment 9 years ago, the Academy has
cultivated close links with the judiciary. Until recently
its President was the distinguished judge Lord Slynn of
Hadley, while its Chairman, Michael Cohen, is a barrister
as well as being – like the other executive officers
of the Academy – a practising expert. This legal
presence has undoubtedly been of help to the Academy in
drafting its widely used Model Form of Report and in making
submissions to government departments and official inquiries
such as that conducted recently by Lord Woolf.
For individual experts the Academy is also a qualifying
body, with three grades of membership, namely Fellows,
Members and Associates. Moreover, applicants for membership
undergo a stringent vetting procedure, which includes
providing the names of three referees, preferably solicitors,
and supplying a current CV, details of expert work undertaken
and a list of relevant courses attended. Applicants also
have to pay a vetting fee of £176.25 and a first year’s
subscription of £120, both inclusive of VAT.
The Society of Expert Witnesses
This infant organisation has attracted more than
500 members in its first 6 months. Its main aims are to
encourage higher standards in expert witness work and
to represent the interests of its members. The Society
formally came into being on 1st June 1996, and all its
members and officers are practising expert witnesses.
It has intentionally resisted formal ties with the legal
world so that it can perform its representative role without
taint or influence. In this respect it is set apart from
any other organisation, as indeed it is by not trying
to sell or promote its own training (or anything else)
to its members.
For clarity of understanding, it likens its role for
experts to those of the British Dental Association for
dentists, the BMA for doctors and countless other representative
professional associations.
To date, the Management Committee has published the Society’s
rules, set membership criteria and distributed two issues
of a members’ newsletter. From here on it is aiming
to assist members with advice on running their expert
witness businesses and to co-operate with other bodies
in the expert field.
Only individuals may become members of the Society. Because
it does not aspire to become a qualifying body, still
less a regulatory one, there are no entry or vetting fees
and no logos or letters of designation. As the Vice-Chairman
put it in a recent article, ‘we trust that membership
will, by precept, soon become its own recommendation’.
Like the Academy it has three grades of membership, with
Associates paying an annual subscription of £57.57 and
Members and Fellows one of £69.32 (rates are inclusive
of VAT).
The Expert Witness Institute
With their differing aims, there was probably
room for both the Academy and the Society to exist alongside
one another and, indeed, thrive. The arrival, though,
of the Institute may threaten the survival of both. That,
at least, was the aspect the press focused on in covering
the Institute’s launch at this year’s Expert
Witness Conference (see ).
It is true that at the Conference the Chairman of the
Institute’s Board of Governors claimed that the Institute
would ‘complement’ the Academy, and not act
as a rival (‘There is room for them both, just as
in motoring there is room for the RAC and AA.’),
but elsewhere one of the prime movers of the new body,
solicitor Mark Solon, was reported as saying that the
Academy was ‘a good idea at the time’ but that
his venture would ‘do the job better’.
Like the Academy, the Institute is backed by several
legal heavyweights. It has Lord Woolf as its President,
a retired high court judge as its Chairman, a former President
of the Law Society heading its membership committee, and
a Board of Governors including another high court judge
and the Chair of the Criminal Bar Association.
So what are the Institute’s objectives? Well, they
are nothing if not ambitious. It is aiming to become an
umbrella organisation – one of its Board members
likened it to a Royal College – which brings together
experts, both experienced and new, and instructing lawyers.
In this way it hopes to encourage individuals to become
expert witnesses, to enhance the quality of expert witness
work, and to approve or certify experts in conjunction
with professional bodies.
How will it achieve all this? By providing its members
with training, a helpline, a newsletter and accreditation;
by supporting the ‘occasional’ expert with advice
and information; by organising conferences that bring
experts and lawyers together; and by acting as a voice
for the expert witness community at large.
So what’s new? Well, without doubt it is the links
the Institute is seeking to forge with professional bodies,
both as sponsors and sources from which to recruit new
members, and with the Law Society and Bar Council.
Apart from founding sponsors, there are classes of membership
for professional associations, companies and individuals.
Somewhat strangely, for a body hoping to accredit experts,
membership criteria are satisfied if you are listed in
either the UK Register of Expert Witnesses
or the FT Law & Tax directory. And the cost? £100
per year plus an entry fee of £40, both inclusive of VAT.
Over to you
So there you are. Three organisations competing
for your support, all with somewhat different aims and
very different ways of achieving them. It is really a
matter for personal judgement (as well as the length of
your purse) which of them, or which combination of them,
seems most likely to serve your interests best.
John Lord
For contact details of any of the above please call Kate
on (01638) 561590.
Court report
It has become generally accepted that in civil cases expert
witnesses owe a duty to the court to give independent
and unbiased evidence which has not been tailored to suit
the cause of the instructing party. The classic definition
of the expert’s responsibility comes from Lord Wilberforce’s
judgment in Whitehouse -v- Jordan, a case decided
in 1981: ‘... it is necessary that expert evidence
presented to the court should be, and should be seen to
be, the independent product of the expert, uninfluenced
as to form or content by the exigencies of litigation.’
The words in italics reappeared as the first of the principles
of expert evidence laid down by Mr Justice Cresswell in
the shipping case known as The Ikarian Reefer,
and they were also quoted with approval by Lord Woolf
in his Interim Report. While there is some scope for arguing
that Lord Wilberforce’s definition fails to address
the reality of the situation, at least as regards the
form and content of expert evidence, it has resulted in
a number of instances when experts have been roundly criticised
in court (as, for example, in the Cala Homes
case – Your Witness, Issue 3). There,
the judge, finding for the defendants, ruled that the
evidence of the plaintiff’s expert was so partisan
as to be of no assistance to the court.
If loss of the case was not bad enough, judicial criticism
may be accompanied by additional penalties. This happened
last year in Autospin (Oil Seals) Ltd -v- Beehive
Spinning. The plaintiff company alleged infringement
of copyright, and one of the issues on which expert evidence
was called was whether copyright subsisted in a coding
system it used.
In his judgment Mr Justice Laddie noted that the clear
purpose of the evidence of the plaintiff’s expert
had been to support the plaintiff’s claim that its
system was unique. During the trial, however, it became
apparent not only that this coding system was used by
others in the trade, but that the expert had made no effort
to find out what coding systems were used by other companies.
‘In my view it is lamentable that [he] should have
lent his weight to this claim without satisfying himself
that it was appropriate to do so.’
The plaintiff lost on all counts, and Mr Justice Laddie
awarded indemnity costs against the firm, in part because
its expert had failed to discharge properly his duty to
the court.
Training on offer
next spring
The Academy of Experts
The Academy provides training on a wide range
of topics, although some of it is intended more for mediators
than expert witnesses. All training sessions and courses
are open to non-members, and of those catering specifically
for expert witnesses the following are scheduled to take
place during the first 4 months of 1997:
- The Role and Responsibilities of the Expert 23/1/97
£225
- Courtroom Comfort (half day) 27/1/97 & 25/4/97
£105
- Into Court 30/1/97 & 19/3/97 £300
- The Expert’s Report 24/2/97 & 17/4/97 £225
- Problems Facing the Expert (half day) 27/1/97 &
24/4/97 £105
All the above training sessions will be held at the Academy’s
offices.
The Academy also runs a three-part ‘Expert Appointment
Course’ providing practise in skills like negotiating
terms of appointment, preparing for trial, taking part
in meetings of experts and giving evidence in court. The
first session of the next series will be on 25/4/97. For
further details of it or any of the training sessions
listed above, please contact Dominic Stanton on 0171 637
0333, or at 2 South Square, Gray’s Inn, London WC1R
5HP (fax: 0171 637 1893).
Behavioural Science & Law Network
BS&LN’s ‘Developing Witness Skills’
course is a particularly intensive one, interspersing
formal lectures with practical exercises, and supplementing
both with visual aids and extensive written materials.
Hitherto, most participants have come from the social
service, health and police sectors, but the course would
be suitable for experts in other disciplines as well.
Developing Witness Skills will be run twice, in Warrington
on 16/1/97 and in Crawley on 10/2/97. In both cases the
cost is £130. For further details, telephone Jill Elliott
on 01703 592376 or write to her c/o The Faculty of Law,
The University, Southampton SO17 1BJ (fax: 01703 593885).
Bond Solon Training
Bond Solon Training provides intensive training
in report writing and day-long practice in courtroom skills
and coping with cross-examination. It also organises seminars
on making expert witness work pay, and runs specialist
2-day courses for nurses, in conjunction with the Royal
College of Nursing. The dates of the firm’s courses
next spring are:
- Excellence in Report Writing (14 delegates) 20/1/97,
18/2/97, 17/4/97 £345
- Courtroom Skills Training (9 delegates) 21/1/97, 19/2/97,
17/3/97, 18/4/97 £395
- Cross-Examination Day (8 delegates) 20/2/97, 21/3/97
£395
- Marketing for the Expert Witness (20 delegates) 18/3/97
£345
- Nurse Expert Training (35 delegates) 27 & 28/2/97,
23 & 24/4/97 £235
All these courses will be taking place at the Law Society’s
Hall, 113 Chancery Lane, London WC2. For further details
contact Rebecca Reed or Sabina McCambridge on 0171 925
0330, or write to 11 Haymarket, London SW1Y 4BP (fax:
0171 925 1002).
Charterhouse Partnership
Charterhouse Partnership and the Employment Disability
Assessment Service have joined forces to arrange a briefing
and workshop on the Disability Discrimination Act 1995.
It takes place in London on 16/1/97 and will last from
11am to 4pm. The workshop should appeal particularly to
expert witnesses involved in personal injury claims, but
all are welcome. The workshop fee is £95. For more details
contact either Jean Brading or John Curtis on 0171 613
4956, or write to Morrell House, 98 Curtain Road, London
EC2A 3AA.
Professional Solutions
Professional Solutions and Services Ltd will
be repeating the courtroom skills courses for doctors
and engineers featured in the last issue of Your Witness.
In addition, the firm is launching a new course on report
writing for medical practitioners, and running (for the
fourth time) one on report writing for occupational health
and safety specialists. The details are:
- Giving Expert Evidence for Engineers 21/2/97 London
£165
- Giving Expert Evidence for Medical Experts 3/2/97
Leeds £250
- Medico-Legal Report Writing for Medical Practitioners
21/1/97 Bristol; 6/2/97 Birmingham; 24/2/97 London £165
- Report Writing for Occupational Health & Safety
Practitioners 22/4/97 London £165
Professional Solutions will also be running monthly courses
for more experienced practitioners. These are limited
to between four and six participants from similar disciplines
who wish to practise their courtroom techniques in a simulated
legal setting. For further details of this and their other
courses, please contact Janette Gulleford on 0171 356
0838, or write to Professional Solutions at Wheatsheaf
House, 4 Carmelite Street, London EC4Y 0BN (fax: 0171
356 0833).
Thomas Sands Training
Thomas Sands Training, who have trained more
than 2,000 expert witnesses since 1993, are expanding
their training programme in 1997. They are the only training
firm currently accredited by The Academy of Experts, and
through their sister surveying company they are practising
experts as well. We can provide here only a brief summary
of their courses, but for further details please see the
leaflet inserted with this issue of Your Witness,
or contact Thomas Sands on 01628 667974 (fax: 01628 667978).
- Expert Witness Seminar – a comprehensive day
of lectures +70-page manual 11, 12 & 13/3/97, Manchester,
Coventry, London respectively £175
- The Expert’s Report – intensive training
based on the Academy’s Model Form 24/2/97 London;
15, 16 & 17/4/97 Manchester, Coventry, London respectively
£225
- Into Court – interactive courtroom training 30/1/97
London; 17, 18 & 19/3/97 Manchester, Birmingham,
London respectively £295
- Advanced Cross-Examination by an experienced barrister,
with video-taped cross-examination 23/4/97 London £325
- Marketing for Experts – a half-day introductory
course 24, 25 & 26/3/97 Manchester, Coventry, London
respectively £95
- Advanced Marketing Workshop – treating expert
witness work as a business 29/4/97 London £295
- Quality Assurance for Experts – a half-day introduction
to ISO 9000 24, 25 & 26/3/97 Manchester, Coventry,
London respectively £95
(NB All courses are full days unless otherwise noted.
All prices exclude VAT.)
Debby Dyson
Conference report
This year’s Expert Witness Conference attracted nearly
350 experts, as well as a score of journalists and ourselves
as exhibitors. It had an even starrier cast than in 1995.
Undoubtedly, the event of the day – the launch of
the Expert Witness Institute – was the principal
draw for the press, but the conference had much more than
that to offer the experts who attended. For example, it
gave them the opportunity to hear Lord Woolf speak about
his proposals for the reform of the civil justice system,
and to learn from the new Head of Civil Justice that he
does not propose to implement any of them unless adequate
resources are made available.
Is there a future for expert witnesses?
From Lord Woolf, at least, the answer is a confident
‘Yes’. The system of civil justice in England
and Wales is manifestly failing the public, and radical
changes are required to bring about its reform. ‘Experts’,
he said, ‘could make a huge contribution to achieving
this’. To do so, though, they must be objective,
independent, qualified and knowledgeable. In some disciplines,
too, there is a need to expand the number of experts available.
The recommendations he made in his Report, and the associated
draft Rules of Court, are designed to help bring this
about.
The new Rules will restate the principles by which courts
are to assess the evidence they hear. They will insist
on the expert’s impartiality, enshrine a right to
apply to the court for directions, encourage joint instructions,
require expert’s reports to be more informative than
they often are at present, and provide protocols for settling
disputes of different kinds. The net result should be
that the role of expert witnesses will be better defined,
and that more constructive use will be made of their services
in resolving disputes proportionately.
How much and how soon?
The next speaker was Sir Richard Scott, who,
as Head of Civil Justice, will be chairing the committee
entrusted with the implementation of Lord Woolf’s
recommendations. While Lord Woolf’s speech had been
up-beat throughout, Sir Richard soon brought the delegates
back to Earth with sombre warnings about the practical
difficulties ahead.
True, a good start has been made. The Bill setting up
a new Rules of Court Committee has already received its
Second Reading and should be enacted by next Easter. The
Committee will then be able to get to work, and the hope
is that the new Rules will be finalised by October 1998.
Other recommendations in the Report, such as those affecting
legal privilege and the law of evidence, will require
primary legislation, which will depend, in turn, on the
government of the day allotting to it the necessary parliamentary
time. Only when this legislation is in place will it be
possible to issue the practice directions needed to give
effect to the new Rules in the different levels of court.
The matter of overriding concern, though, is whether
adequate resources will be made available to train judges
in their new role as case managers, to equip them for
it with the necessary technology and to appoint new judges
to share the increased work load. Will the money for all
this be forthcoming? In principle, yes, but the full costs
are not yet known. Until they are, neither the Government
nor the Opposition is prepared to commit itself. In these
circumstances, Sir Richard concluded, ‘it cannot
be certain that full implementation will be possible’.
Other topics
In the space available here it is only possible
to make brief mention of the other contributions to this
year’s conference. Colin Stutt, a barrister at the
Legal Aid Board, spoke about the Government’s proposals
for the reform of the Legal Aid system and the effect
that block contracting may have on expert witnesses. Sir
Michael Davies, a retired high court judge, gave an entertaining
talk on what judges expect of experts’ reports. Sian
Fisher, of insurance underwriters Hiscox, explained what
is likely to happen if you are sued for professional negligence,
and how you can guard against the consequences. And finally,
John Leppard presented a marketing expert’s view
on how other experts should set about getting more instructions.
However, those of you who were not there should soon
be able to buy the book of the conference. Its organisers,
Bond Solon Training, are currently preparing an edited
transcript which they will be selling for £25 (inclusive
of VAT and p&p). To order a copy ring them on 0171
925 0330.
John Lord
Database abuse
Recently I’ve had several telephone conversations
with experts listed in the Register concerning
junkmail and high-pressure telesales from companies offering
services to experts. A notable example is Legal Media
Services and their Expert Witness ’97 marketing.
From these calls I have become concerned that a misconception
may be spreading that we sell your details to organisations
wanting to sell to you. This is not so. Indeed, it is
not uncommon for us to refuse to sell the Register
if the enquirer does not have a legitimate reason for
its use. We do allow vetted items to be included with
mailings of Your Witness, and have occasionally
carried out solus mailings for reputable organisations,
notably the Society of Expert Witnesses and Bond Solon
Ltd.
The Register carries a condition of sale that
tries to prevent its use as a mailing list. If you are
being troubled by an outfit that has obtained your name
from the Register, please let us know. If we
are told it is happening we can try to stop it.
Debby Dyson
In the papers
We were delighted to join the celebration heralded
recently by New Scientist. Apparently, civil
engineers are no longer boring! For the past 20 years
there has been an entry in London’s Yellow Pages
reading: ‘Boring – see civil engineers’.
However, the Institution of Civil Engineers has finally
persuaded the Yellow Pages editors to drop the
entry. So now it’s official: engineers are confirmed
as being very interesting people.
A letter to The Times also caught
our eye. The writer had been present at the installation
of Lord Howe of Aberavon, CH, QC as President of the Academy
of Experts. Unfortunately there was a problem with the
microphone. Despite an appeal from the Chairman, there
was no-one from amongst the large audience of member experts
with the required expertise to fix the problem!
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