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Your Witness •
Issue 7 • April 1997
Tenth edition: better
than ever – thanks to you
By the time you read this, editorial work will have been
completed on the 10th edition of the UK Register
of Expert Witnesses. The new edition contains details
of more experts than ever before and, as those of you
have ordered copies will find, it is being given an attractive
new cover. However, as you already know, the main innovation
this year is the much wider distribution the Register
will be receiving, and here I would like to pass on my
special thanks to those of you who wrote suggesting firms
of solicitors to whom copies ought to be sent. All of
them will be getting one when the new edition is published
at the beginning of May.
Our aim in adopting a controlled circulation method of
distribution has been to ensure that from now on the great
majority of litigation lawyers in this country will have
ready access to the Register. Being mindful that
in the criminal courts experts often appear for the prosecution,
we are also making copies of the new edition available
to all Crown Prosecutors (or, in Scotland, to Procurators
Fiscal), as well as to the Trading Standards Departments
of local authorities north and south of the Border. In
one way or another, we trust that these changes will result
in a worthwhile increase in business for you, the expert
witnesses the Register exists to serve.
Professional indemnity insurance
I could wish that I was able to report as much
progress on the scheme for group PI insurance outlined
in the last issue of Your Witness, but unfortunately
it is taking longer to set one up than either we or the
brokers had imagined. However, their negotiations with
the insurance company involved have reached the stage
where the latter wishes to assess further the risk it
would be incurring.
Close on 300 readers responded to the questionnaire,
and we are most grateful to them for doing so. A letter
providing fuller details of the stage we are now at has
already been sent to the 227 experts who expressed an
interest in joining a group scheme. For those of you who
did not return the slip because you missed our earlier
deadline, it is still not too late to do so. Indeed, the
better the response, the more likely it is that we will
be able to put together a scheme which proves attractive
to the majority of expert witnesses listed in the Register.
This issue
Lastly, it is a great pleasure for me to be able
to include in this issue an edited version of an incisive
article by Anthony Speaight QC on a topic of importance
to all expert witnesses. I urge you all to read it most
carefully and look forward to publishing a selection of
your replies in the next issue of Your Witness.
Chris Pamplin
Seven Pillars of
Wisdom, but are they all sound?
In the last issue of Your Witness reference
was made to the principles of expert evidence which Mr
Justice Cresswell laid down four years ago in his judgment
in the shipping case known as The Ikarian
Reefer. These principles were subsequently endorsed
by the Court of Appeal, and they were also cited with
approval in the Woolf Report. It was with great interest,
then, that we read an article by Anthony Speaight QC questioning
the premises on which several of the principles are based.
The following is a shortened version of Mr Speaight’s
article, which first appeared in the New Law Journal.
It has been abridged for publication here by kind permission
of that journal.
The seven principles of expert evidence which Mr Justice
Cresswell set out in The Ikarian Reefer have
several times been cited as the classic statement of good
practice for experts, most recently in Boroughs Day
-v- Bristol City Council. There can be no doubt that
the judge’s strictures on experts in this case were
justified, but before the Ikarian Reefer principles
become, so to speak, set in stone as unchallengeable pillars
of wisdom, we ought to examine the respects in which they
may fail to grapple with unresolved contradictions in
the role of the expert in litigation. Let us consider
the principles individually.
1. 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.
If this simply meant that an expert ought to express
the same opinion on a given issue irrespective of which
side was calling him, then most of us would warmly agree.
However, in stating that both ‘form and content’
should be unin-fluenced by ‘the exigencies of litigation’
the proposition goes much further.
Consider form first. How can an expert report
not be influenced by the fact that it is to be
used in litigation? Litigation reports differ from those
produced for other purposes in a number of ways, most
importantly because they should surely be directed to
the matters in issue on which expert evidence is admissible.
In my view it is not only proper but desirable for lawyers
to identify for experts the issues on which their opinion
is sought. To my mind, a crisp expert report will set
out the questions posed by the lawyers and confine itself
to answering them. Therefore, the form of a useful expert
report will be very much dictated by the context of its
requirement for a particular case.
The proposition that the content of the report
should be uninfluenced by the exigencies of litigation
may sound more reasonable. But, in fact, behind this bland
statement lies a profound difference of opinion as to
the propriety of lawyer involvement in the drafting of
reports. Imagine the hypothetical case of an obstetrician
accused of pulling too hard on forceps. The defendants
receive a report from their medical expert which contains
these two passages: (1) ‘in my opinion he did not
pull too hard but he did pull for too long, and this ultimately
produced the same mischief as pulling too hard would have
done’, and (2) ‘in the ensuing Caesarean section
operation his stitching was thoroughly careless, causing
unnecessary later pain’.
In my view it would be wrong for a lawyer to suggest
that passage (1) be modified by, for example, cutting
out all the words after ‘he did not pull too hard’;
for such an excision would do violence to the witness’s
full expression of opinion on the question as to whether
the pulling was negligent. On the other hand, I would
consider it perfectly proper for a lawyer to ask the expert
to omit passage (2) entirely if the plaintiff had pleaded
no allegation of negligence in the performance of the
later operation. Parties to litigation are under no obligation
to tell their opponents how they could improve their cases,
and in such a situation it would be the lawyer’s
duty to his client to endeavour to have passage (2) removed
before the report was served.
Therefore, to the extent that the content of expert reports
should be confined to the questions posed to the expert,
the content as well as the form may on occasions be influenced
by the requirements of litigation.
2. An expert witness should provide independent
assistance to the court by way of objective unbiased opinion
in relation to matters within his expertise (see Polivitte
Ltd -v- Commercial Union Assurance). An expert witness
in the High Court should never assume the role of an advocate.
Experts should certainly provide objective unbiased opinions,
and equally certainly they should not act as advocates.
However, the giving of unbiased opinions is not quite
the same thing as providing ‘independent assistance
to the court’. Experts are called by one party or
the other, and are paid by one of the parties. They are
engaged not only to give evidence in the witness box,
but also to give out-of-court advice to the party engaging
them. And, indeed, on looking at Mr Justice Garland’s
judgment in the Polivitte case one finds that he gave
a rather more balanced picture of the expert’s role:
‘I have almost considered the role of an expert to
be two-fold: first, to advance the case of the party calling
him, so far as it can properly be advanced on the basis
of information available to the expert in the professional
exercise of his skill and experience; and secondly, to
assist the court, which does not possess the relevant
skill and experience, in determining where the truth lies.’
3. An expert witness should state the facts or
assumptions upon which his opinion is based. He should
not omit to consider material facts which could detract
from his concluded opinion.
This statement is fine, so long as the reference to not
omitting what could detract from the opinion is limited
to the questions actually posed to the expert. As the
late and greatly respected Official Referee, Judge John
Newey QC, once wrote: ‘Since the procedure in both
courts and arbitrations is adversarial, an expert is not
obliged to speak out, or write in his report, about matters
con-cerning which he has not been asked.’
4. An expert witness should make it clear when
a particular question or issue falls outside his expertise.
When the Ikarian Reefer case reached the Court
of Appeal, Lord Justice Stuart-Smith qualified this statement
from the judgment of the Divisional Court by saying that
an experienced fire expert must be entitled to weigh the
probabilities. ‘This’, he said, ‘may involve
making use of the skills of other experts or drawing on
his general mechanical or chemical knowledge.’
5. If an expert’s opinion is not properly
researched because he considers that insufficient data
are available, then this must be stated with an indication
that the opinion is no more than provisional. In cases
where an expert witness who has prepared a report could
not assert that the report contained the truth, the whole
truth and nothing but the truth without some qualification,
that qualification should be stated in the report (see
Derby -v- Weldon).
The remarks of Lord Justice Staughton in the Derby
-v- Weldon case are worth quoting more fully, because
they introduce a different, and more realistic, nuance:
‘I do not think that an expert witness, or any other
witness, obliges himself to volunteer his views on every
issue in the whole case when he takes an oath to tell
the whole truth. What he does oblige himself to do is
to tell the whole truth about those matters which he is
asked about.’
6. If, after exchange of reports, an expert witness
changes his view on a material matter having read the
other side’s expert’s report or for any other
reason, such a change of view should be communicated (through
legal representatives) to the other side without delay
and when appropriate to the court.
This is a radical idea. I have never had the experience
of opponents telling me or my solicitors that their expert
had changed his view on something since service of his
report. Nor have I ever heard of it happening to others.
So this principle hardly reflects existing practice. That
is not to say that there may not be good arguments in
favour of its adoption, but they require careful examination.
In general, a party to litigation is under no obligation
to reveal to the other what his prospective witnesses
will say. Quite the contrary: witness statements are privileged.
However, rules of court have in practice modified the
scope of that privilege, by providing that leave to call
experts may be made conditional on the substance of their
evidence being disclosed to the other side in the form
of a written report.
I can quite see that if an expert changed his mind on
a significant matter between writing his report and its
service to the other side, the report should be amended
before it is served. It could well be argued that service
implies that the report currently reflects the witness’s
view, even if the report had been completed some time
previously. Similarly, I would agree that a party ought
not to place an expert’s report before the trial
judge unless at the time of doing so the report is still
broadly accurate as to the witness’s opinions, and
the party genuinely intends to call that expert.
But no recipient of a report could imagine that it constituted
the author’s final views on the subject, for no author
can predict how his opinions may change in the future,
especially if additional material comes to his attention.
So if an expert changes his mind on a matter during the
many months that may elapse between service of his report
and trial, is there any obligation to signal that to the
other side? I think not, and other lawyers share my view.
7. Where expert evidence refers to photographs,
plans, calculations, analyses, measurements, survey reports
or other similar documents, these must be provided to
the opposite party at the same time as the exchange of
reports.
A good statement of practice.
Anthony Speaight, QC
Court report
A case currently being heard in the Official
Referees’ Court illustrates the way in which Lord
Woolf’s proposals for court-appointed experts might
work in practice. Existing Rules of Court already allow
for the appointment of a single expert to assist a court
in its deliberations, though hitherto little use has been
made of the provision. In Abbey National Mortgages
plc -v- Key Surveyors Nationwide Ltd, however, Judge
John Hicks QC is testing the provision to its limits.
The plaintiffs originally alleged negligence in 29 mortgage
valuations across the country and the defendants wanted
to call 29 valuers as expert witnesses. To limit costs
the judge made two orders: that a court valuation expert
be appointed in accordance with the Rules and that experts
called by the parties be limited to one per side.
Judge Hicks countered the objection that a single valuer
was unlikely to have local knowledge of more than a handful
of the localities involved in the case by observing that
that had not stopped the eight individual defendants each
valuing properties in several different areas. They did
so, and were entitled to do so, because it is axiomatic
that valuers rely on comparables outside their own experience,
and that must also be the case when valuers are called
to give expert evidence in court.
The defendants appealed against both orders, and by the
time the case reached the Court of Appeal last year the
number of properties whose valuation was in dispute had
risen to 51. In delivering the judgment of that court
the Master of the Rolls, Sir Thomas Bingham, noted that
Judge Hicks’ orders were nothing if not bold and
innovatory. That, however, was not an argument against
them. Referring to the Woolf Inquiry, Sir Thomas said
‘There can be no purpose in commissioning expensive
and far-reaching reports on civil procedure if lessons
which emerge are not heeded. Exhortations to trial judges
to be interventionist and managerial would be futile if
every managerial initiative by a trial judge were to be
condemned as an unwarranted departure from orthodoxy.’
Counsel for the defendants argued that while in his or
her professional practice a competent surveyor asked to
value a property was bound to pay regard to all relevant
market information, whether it was direct, first-hand
knowledge or not, that was not the case for surveyors
giving expert evidence on valuations. They were confined
to that body of information which they could personally
verify. The court, however, would have none of this. An
expert opinion on the value of a car was habitually based
on the standard published guide, adjusted to reflect any
peculiar feature the car might have, and the same approach
is adopted with ships. In neither case is the expert witness
expected to have direct, first-hand knowledge of the published
information on which he or she relies, and their Lordships
saw no reason why different requirements should apply
to house valuations. ‘It is not in our judgment self-evident
that a valuer cannot, having made appropriate inquiries
and investigations, express a reliable opinion on values
within an area where he has not himself worked.’
Dismissing the appeal, the Master of the Rolls pointed
out that it had come at an early stage in the process.
The court expert had yet to be appointed, and the questions
to be put to him had yet to be settled. Once appointed
and the questions finalized, the court expert may advance
the defendants’ contention, professing inability
to provide reliable evidence on areas of the country in
which he or she had no experience. In that event the trial
judge would need to reconsider the matter. However, the
first step should be to implement the order Judge Hicks
had made and then await its outcome. As to whether it
might be appropriate to allow the parties to call more
than one expert of their own, that too would be affected
by any decision to appoint more than one court expert,
and by other circumstances on which the defendants may
be able to rely. ‘There is a difficult, and continuing,
judgment to be made of what justice requires, and the
judge is best placed to make it.’
On a more tentative note, Sir Thomas went on to say,
‘There must be at least a reasonable chance that
an expert appointed by the court, with no axe to grind
but a clear obligation to make a careful and objective
valuation, may prove a reliable source of expert opinion.
If so, there must be a reasonable chance at least that
such an opinion may lead to settlement of a number of
valuation issues.’
Whether it does so remains to be seen. The main trial
of the action begins this month, and we will hope to be
able to report on its outcome in our next issue.
More Woolf news
In his Final Report on ‘Access to Justice’ Lord
Woolf commented, ‘It is in the area of medical negligence
that the civil justice system is failing most conspicuously
to meet the needs of litigants’. Since the beginning
of October last year the Birmingham County Court has been
operating a pilot scheme that aims to both speed up medical
negligence cases and provide a more affordable resolution
of them.
The scheme is available for all medical and dental negligence
claims where:
(a) there is just one plaintiff and one defendant
(b) the value of the claim is in the range £1000–£10,000
(c) no more than two expert witnesses are being called
by either side
(d) the issues in dispute are capable of being resolved
in a trial lasting no more than 2 days.
Large chunks of Lord Woolf’s draft rules of court
are being piloted at the same time, and the costs that
are recoverable inter partes will be strictly
limited. The guiding assumption is that the solicitors
involved will be both efficient and experienced in medical
negligence work, and that they will be helped by competent
experts.
Recourse to the scheme is optional, and it will be some
months yet before the first cases to pilot it get under
way. But as soon as they do, they will be required to
follow a well-defined timetable. Once the letter of claim
has been issued, the defendant has 2 months to investigate
the circumstances and another month in which to make admissions
and offers to settle. Then if the plaintiff decides to
issue proceedings, a case management hearing is listed
and the plaintiff has just 28 days to file a fully pleaded
defence. At the hearing, a district judge will identify
the issues to be resolved at trial and fix a date for
the trial 12 months on. For both parties the end will
then be in sight.
The key obligation on parties opting for this scheme
is that they make an early response to the real issues
of the case, which should result in their agreeing out-of-court
settlements sooner. That, in turn, ought to reduce the
incidence of last-minute cancellations of hearings, with
all the inconvenience and expense they can cause the expert
witnesses who were due to testify. We will let you know
if this comes about!
Book review
Commercial and Consumer Arbitration: Statutes
and Rules
Edited by Eur. Biol. M J Chapman, FCIArb
(1997, Hardback, 802 pages, Blackstone Press, £60.00)
Many of the experts listed in the Register are
qualified arbitrators, and even more of them have given
expert evidence in arbitration proceedings. Everyone involved
in such proceedings will be indebted to Michael Chapman
and his publishers for producing this book.
For far too long arbitrators and the parties appearing
before them have had to rely on a multiplicity of source
materials produced in many different shapes and sizes.
Mr Chapman has performed a signal service to the arbitral
community worldwide by bringing together in one volume
the relevant statutory materials from all seven of the
UK jurisdictions and from Ireland, as well as the texts
of the relevant international conventions to which the
UK is signatory and of the rules of the leading UK, European
and international arbitral institutions.
In his preface, Michael Chapman notes that there is never
a ‘right time’ to compile a work of this kind.
After all, many different originating bodies are involved,
and even as this book went to press it was known that
several of them were engaged in revising their arbitration
rules, or shortly would be. Nonetheless its publication
is timely, especially in view of the coming into force
of the Arbitration Act 1996.
This important piece of reforming legislation was also
intended to consolidate previous enactments, but curiously
it failed to do this. A sizeable part of the Arbitration
Act 1950 remains in force throughout the UK, as does the
whole of the 1975 Act in Scotland. In any case, arbitrations
commenced before the latest Act came into force are still
governed by previous legislation, including those Acts
that have been completely superseded by the new one. For
that reason alone, the author is wise to print their full
texts as well.
All in all, this is a most useful publication, and as
law books go it is not at all over-priced. If we have
one quibble (and which reviewer does not?) it concerns
the reference to ‘England’ in headings throughout
the book when ‘England and Wales’ is surely
meant. No doubt this can be rectified in future editions
the book so richly deserves.
Is this a record?
Readers of Your Witness may be interested
in an experience of mine with regard to the late payment
of fees for medico-legal reports. Some years ago I wrote
a report for Tanfields, a firm of solicitors in Dudley.
I eventually received payment for it in December 1993,
without any explanation or apology, only a compliments
slip with ‘Please receipt and return by way of acknowledgement’.
Initially I thought there had been a mistake, but on
checking back through our records I found that the bill
had been sent in February 1983.
I believe this really must be a record!
Mr T S Mangat
'Urgent delivery for Mr Mangat'
The business to
be in?
We were also amused by a comment from Harry Enfield,
Snr which appeared in the February 1997 issue of The
Oldie.
Recently I had to appear in court as a witness, and HM
Paymaster General sent me £25.46 for my expenses. He used
a special cheque, clearly printed ‘Witness Expenses’,
which in my case was made out as follows:
I felt I had rather let the side down with
my little claim, like one of those journalists whose colleagues
complain that their expenses are not nearly big enough.
How can I get into the witness business properly? It is
potentially much better than libel, clearly, as Lord Archer
got a mere half million for his alleged contretemps with
a lady of the night, which in witness terms only puts
him in the third box from the left.
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