Your Witness • Issue 7 • April 1997

Tenth edition: better than ever – thanks to you
Seven Pillars of Wisdom, but are they all sound?
Court report
More Woolf news
Book review
Is this a record?
The business to be in?

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

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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

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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.

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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!

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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.

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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'

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