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Your Witness •
Issue 10 • December 1997
Conditional fees
As readers will be aware, the Lord Chancellor
is proposing to withdraw legal aid from all civil litigation
actions where the claim is financial in nature, while
at the same time extending the scope of conditional fee
arrangements to cover such actions (see for the full text of Lord Irvine’s speech).
Since solicitors generally consider expert witnesses to
be ‘part of the litigation team’, the widening
of conditional fee arrangements is likely to increase
pressure on expert witnesses to accept instructions on
the same basis as the rest of the ‘team’.
This pressure brings the role of the expert witness into
sharp focus, for the solicitor’s view (of the expert
witness as a member of the litigation team) is not the
same as that taken by the judiciary (of the expert as
independent adviser to the court).
An agreement by an expert to be paid on a conditional
basis would infringe the maintenance and champerty rule.
Furthermore, although rules can change, there exists a
fundamental distinction between lawyers and expert witnesses
that argues against payment of experts’ fees ever
being made conditional on the outcome of the case.
Expert witnesses occupy a unique position in the British
legal system, being the sole source of opinion evidence
that the courts are prepared to consider. What weight
could a court be expected to give to evidence from an
expert known, or supposed, to be working under a conditional
fee agreement?
In a no win, no pay arrangement, the expert witness would
be acting in the knowledge that payment will only be made
if his or her opinion wins the day. The implicit risk
to the just operation of the litigation process is obvious
and, in my view, unacceptable.
It is clear that Lord Irvine’s proposals make a
definition of the expert’s position crucial. If the
Government’s policy were to allow experts to take
on conditional fee instructions then their independent
position vis-à-vis the courts would be compromised immediately.
Conversely, preservation of their independent status demands
formal prohibition of conditional fee arrangements for
experts.
If implemented, Lord Irvine’s proposals would inevitably
make solicitors, being now financially obliged to ensure
their case is strong, bring in experts to advise as to
the strengths and weaknesses of the case much earlier
in the litigation process. This has to be welcomed, although
you need to be aware that as an expert adviser you
would not enjoy the same protection from suit as applies
to your expert witness work.
PI scheme goes from strength to strength
The UK Register of Expert Witnesses Professional
Indemnity Scheme continues to grow. The premiums are
much lower than those for which insurance companies would
be prepared to insure individuals. They are also more
attractive than those available under other group schemes
devised for experts. In this connection we note that the
scheme arranged by the Expert Witness Institute (EWI)
offers £250,000’s worth of cover for a premium of
£250, whereas for the same amount of cover the Register
Scheme charges £130.
The next edition
As the festive season draws near, we begin preparations
for the 11th edition of the Register. The change
to controlled distribution has been very successful, with
much anecdotal evidence of increased instruction rates
for experts. As promised, the charges for inclusion in
the Register will not increase with the
new edition.
We will be sending you your draft entry in early January
so that you can review, and amend as necessary, the information
we publish about you. As always, it would help us considerably
if you will check and return the draft quickly.
Web site launched
October saw the launch of the Register web
site. You will find an overview of the site overleaf,
together with details of how you can either dip your toe
into the ‘surf’ by opting into the new web-based
Register or take to your surfboard by including
your home page on the Register site. You can find
the Register web site by pointing your internet
browser at http://www.jspubs.com.
Conference reports
I am pleased to include in this issue summary reports
of two recent conferences. Fuller accounts of them are
available via our faxback service or on the new web site.
Chris Pamplin
Register web site
If you recall the article on the World Wide Web published
in the July 1997 edition of Your Witness, you will
remember that it concluded with two points. The first
was that a recent survey conducted by the Law Society
revealed that only 7% of solicitors’ practices have
Internet access, and the second was that the World Wide
Web is a powerful and enabling technology that everyone
should embrace.
Having provided an introduction to the hype, and how
to assess the value of the World Wide Web for yourself,
we now offer a guide to our own web site.
Rationale
We wanted to set up a web site for two reasons. First,
because it offers us a cost-effective, and uniquely accessible,
means of providing up-to-the-minute information to the
expert witness community we serve. Secondly, the web will
allow us to publish the Register in a format that
is widely available and unhindered by traditional publishing
considerations.
Information serving
The Register web site went ‘live’
in early October, thus serving the first of our stated
aims. The site is divided into five sections, each providing
access to distinct information.
Home
The home page provides information about ourselves,
but more importantly it acts as a repository for information.
For example, the full texts of the Middleton Report and
of Lord Irvine’s Cardiff speech were posted within
days of being released by the Lord Chancellor’s Department.
This immediacy is virtually impossible to achieve through
any other medium. You can be sure that we will continue
to update the site to reflect events as they unfold.
Your Witness
The site also gives access to the complete text of
all issues of Your Witness. We are able to upload
the latest edition two weeks before it lands on your doormat.
If you ever need to refer to an item in an earlier edition
of the newsletter then this section will be very useful.
We are also able to conduct online surveys. So, for example,
you can contribute to the fees survey by surfing to issue
9 of Your Witness and completing the form at the
end of the document.
Factsheets
The new faxback factsheet service we launched in September
has been so well received that our fax server has been
almost too busy! As an alternative to accessing the information
by fax you can also find all the factsheets on the web
site in the factsheet section.
For experts...
A section providing information about the Register
to experts, or to those seeking to become experts,
is also included. All the services we offer experts are
covered, including the professional indemnity insurance
scheme, profiles, CVs on file and the Expert Search Program
(ESP) software. You can also download the Register
emblem in a variety of formats for use on reports,
etc.
Using experts...
The final section of the site is designed for those
seeking to instruct expert witnesses. It provides information
about the Register and ESP, and about the vetting
system we employ.
Web Register
As it stands, the site offers an enormous amount of
information of interest to experts. But that satisfies
only half our objective. To make the site of real interest
to those who use experts we want to prepare a web-based
version of the Register. However we need your authority
to use your details in this way, and the draft entry forms,
which you will receive in early January, will give you
the opportunity to opt into this new project. In keeping
with our philosophy of offering unbeatable value for money,
we will be charging just £20.00 per annum to include your
Register entry in the web Register. And
if you don’t want to be included then simply don’t
opt in: the choice is yours. But don’t forget, once
included in the web Register, anyone will
be able to see your entry details.
Home page authoring
If all this should make you want to have your own
home page then we are able to help. As a registered expert
you can take space on our web for your own home page.
This could take any format you like, and we are able to
provide a page design service should you need it. We make
an annual charge of £40 (per Mb) for hosting your site
and will ensure that your entry in the web Register
links to your home page. Please contact Chris Pamplin
if you are interested in placing your home page on our
site or in our page design service.
How to find us
The Register web site can be found at http://www.jspubs.com.
Susanne White
Society of Expert
Witnesses Conference
The Society’s first AGM and Conference took place
at Crick in Northamptonshire. It was a day characterised
by plentiful opportunities for exchanging ideas and information.
The formal business of the AGM was followed by an open
forum at which members discussed several issues of perennial
concern. Problems with solicitors provided a common thread,
and the use of written terms of engagement was again urged
on all present. Delegates were reminded, too, never to
accept instructions that limited their fees to those allowed
by the Legal Aid Board or at taxation. Also, if estimates
of cost were asked for, experts were urged to label them
as such and not as ‘quotations’. As for remedies,
it seemed that the Office for the Supervision of Solicitors
was proving more effective than its predecessor, the Solicitors
Complaints Bureau, in bringing particularly recalcitrant
solicitors to book.
Note was taken of the increasing use being made of subpoenas
to secure the attendance of expert witnesses on days when
they would ordinarily be unavailable. A representative
of the Lord Chancellor’s Department (LCD) was on
hand to advise that experts should always seek to have
the dates of hearings fixed rather than warned. The members
present also reaffirmed their opposition to the introduction
of any system of accreditation for expert witnesses that
was administered by lawyers.
The first guest speaker of the day was Anthony Speaight
QC, who gave a skilful and amusing analysis of the ‘Cresswell’
principles of expert evidence, highlighting their shortcomings
as well as their strengths. He dealt, too, with the admissibility
of hearsay evidence, an expert’s immunity from suit
and the risk run by experts who will only accept instructions
on behalf of plaintiffs or on behalf of defendants.
In the first session after lunch Dr Anthony Barton, Solicitor,
spoke about the ‘no win, no fee’ regime which
seems set to replace legal aid as the main method for
financing civil litigation. He concluded that while experts
should welcome the adoption of conditional fee arrangements
by solicitors and barristers, they should never themselves
accept instructions on that basis. Quite apart from the
fatal impact that that would have on their credibility,
it would be illegal for them to do so.
Simon Morgans, a senior legal adviser from the Legal
Aid Board, rounded off the formal presentations. He introduced
his audience to some of the complexities of the legal
aid system in its present form, and previewed the changes
that are in the offing. Mr Morgans also fielded questions
on the lists of experts that legal aid franchisees are
required to maintain and confirmed that when solicitors
blamed the Board for delays in paying experts’ fees
the experts concerned were fully entitled to check out
such excuses with the local Office.
All in all it was a most lively and informative conference,
and at a cost of £21.15 inclusive of lunch, astonishingly
good value for money.
Debby Dyson
Bond Solon Conference
This year’s conference was as well organised as ever,
and it numbered no fewer than five judges among its speakers.
It was, however, the challenging contribution of an instructing
solicitor that gave the audience most food for thought.
The first speaker was Senior Master Robert Turner who
gave a sobering assessment of the progress made so far
towards implementing the Woolf reforms. The LCD had grossly
underestimated both the time it would take and its cost.
He thought it would be at least 3 years before everything
was in place.
According to the next speaker, Professor Michael Zander,
even if there were no concerns about delay and funding,
the Woolf reforms are bound to fail. They are based on
a completely wrong analysis of the present situation,
and if anything they will increase cost, delay and injustice,
not reduce them. On this occasion, though, Professor Zander’s
voice was of one crying in the wilderness, all the other
speakers at the conference being in favour of the Woolf
proposals.
The final speaker during the morning session was Kerry
Underwood, a solicitor who specialises in personal injury
and employment law. Although his subject was ‘What
solicitors want from experts’, most of what he had
to say concerned the opportunities presented by the Government’s
proposals for the reform of legal aid.
Change is coming, and in all periods of change there
are winners and there are losers. The extension of conditional
fees to cover most kinds of civil litigation should mean
more work for both lawyers and expert witnesses –
but only if both are prepared to be more flexible in their
methods of working and about fees.
In the brave new world to be inaugurated next April,
more and more solicitors will be expecting the experts
they instruct to shoulder some of the risks of the litigation
business. One way in which Mr Underwood suggested they
might do this is to enter into consultancy agreements
with solicitors, helping them to decide which cases were
winnable and accepting that they would not be paid for
reports in which they advised against proceeding.
After the lunch break the retiring Chairman of the Expert
Witness Institute, Sir Michael Davies, gave an upbeat
report of the achievements of the Institute in its first
year. He was followed by the Honorable Michael Belloff
QC, who treated the conference to a highly entertaining
exposition of the rules of court governing the cross-examination
of witnesses, with specific reference to expert evidence.
He outlined the questions counsel would be asking himself
when preparing to cross-examine an expert witness, and
offered some pertinent advice to experts on how to conduct
themselves in the witness box.
The conference then heard from Chief Taxing Master Hurst,
who described the procedure for taxation of costs and
suggested a number of ways in which experts might hope
to minimise the risk of their bills being reduced at taxation.
It was clear from the number of questions put to Master
Hurst during the tea break that his was a nuts-and-bolts
topic that might usefully be broached again at next year’s
conference.
The final speaker for the day was the Honorable Mr Justice
Cresswell, of Ikarian Reefer fame. After first
stressing the importance of expert evidence in the conduct
of litigation, he had some trenchant observations to make
on experts’ performance of their role. He welcomed
Woolf’s recommendations on the form experts’
reports should take and agreed with most other speakers
at this year’s conference that conditional fee arrangements
for experts did not fit easily with their role as independent
advisers to the court. If they were to accept instructions
on that basis they should at the very least disclose the
fact to the court and to the other party in the dispute.
John Lord
Courtroom skills
Mr John S S Stewart writes:
I would like to comment on the correspondence in Your
Witness 9. Someone who purports to be an expert should
be competent in his field: it is unwise to profess if
one cannot deliver. Thus, an expert who does not have
an adequate presence should not attempt to give evidence
in court. If he cannot be heard throughout a hushed court
he should perhaps seek employment in a library where he
can speak in whispers. The style that the expert adopts
is, of course, a matter of personal preference.
In court, it is not sufficient to be awake; one must
also be alert to all the evidence. That includes not only
the content of a question from a barrister but also the
tone and emphasis of its delivery and, importantly, the
body language of the questioner. The reaction of the questioner
to a reply is at least as important as the question. The
expert should be aware if the barrister is indulging in
histrionics. Eye contact is, in my view, essential.
An example may illustrate the point. The last question
on Friday afternoon during cross-examination by plaintiff’s
counsel to a defence expert was to the effect that he
had not produced any substantive evidence to support his
case. This was caused, at least in part, because defence
counsel had not lodged a key reference and counsel for
the plaintiff had refused to accept it when he saw its
significance. The inexpert may not immediately recognise
the ‘Have you stopped beating your wife?’ type
of question. The defending expert looked the barrister
straight in the eye and replied thus. ‘I have not
so far been asked the right questions’. The judge,
who had a dry sense of humour, had no difficulty in hearing
the answer. Having confirmed that cross-examination was
complete, he adjourned the hearing until Monday morning
when, he said, the defending counsel may continue with
his examination in chief. It would be an overstatement
to say that we won the case but it was decided in our
favour.
It is a pleasure to say that I agree completely with
Mark Solon when he implies that the way of giving evidence
is a matter of personal preference.
Construction disputes
– book review
Construction Disputes – Avoidance and Resolution
Edited by Peter Campbell
Whittles Publishing, ISBN 1 870325 07 9, £35.00
The work of 12 acknowledged construction industry experts,
this book is targeted at construction personnel in general
rather than expert witnesses. Two chapters do deal specifically
with expert witness matters, but experienced expert witnesses
will already be familiar with most of what is said in
them. Even so, the book contains much of interest.
With its reputation for being dispute orientated the
construction industry is probably also the industry in
which the greatest efforts are being made to find ways
of avoiding and resolving disputes. In his introduction,
Peter Campbell refers to the ‘sequential approach’
to resolving disputes, starting with direct negotiation,
further negotiations with the assistance of a neutral
facilitator or mediator, adjudication and then final determination
by arbitration or the courts. Each stage of that approach
is dealt with in the book.
There are also interesting contributions on ethics (the
‘ethical audit’), the nature of conflicts and
how cultural differences can contribute to misunderstandings.
‘Partnering’ as a means of avoiding disputes
is explained, as are other techniques such as early warning
meetings, claims review meetings and facilitators.
In his dispute avoidance chapter Brian Totterdill, whilst
not actually dealing with meetings of experts, makes pertinent
points for experts to keep in mind at such meetings (e.g.
avoid entrenched positions, listen to others and answer
points raised rather than just concentrating on developing
your own case). Elsewhere, good basic reminders are also
given for experienced experts on impartiality, staying
within one’s expertise and being complete in one’s
reporting.
In addition, there are sections on the use of clear English,
report layout and contents, without-prejudice meetings,
fees and the need for experts to remain in touch with
the grass roots of their subjects and the latest developments.
It is somewhat surprising that in the list of bodies
that can advise on the appointment of experts there is
no mention of either the FT Law and Tax Directory or the
UK Register of Expert Witnesses.
This might be an appropriate book for construction industry
experts to recommend to their clients. Parties in construction
disputes are often unaware of what they are getting themselves
into, and this readable book provides helpful summaries
of the procedures involved.
John Price, J E Price Associates. Chartered Quantity
Surveyors and Construction Contracts Consultants
Factsheet update
There are four new factsheets available on the faxback
system, namely:
ID Factsheet Title
These factsheets, and the full text of the Middleton
Report, are also available on our web site at http://www.jspubs.com.
Kate Porter
Conference call
We are looking for opportunities to take information about
the Register to conferences. If you are running
a conference, or know of a forthcoming conference, please
contact Debby Dyson on (01638) 561590.
Christmas cracker
We are indebted to Peter Blockley for bringing the following
exchange, from an American courtroom, to our attention.
Q: ‘Doctor, before you performed the autopsy, did
you check for a pulse?’
A: ‘No.’
Q: ‘Did you check for blood pressure?’
A: ‘No.’
Q: ‘Did you check for breathing?’
A: ‘No.’
Q: ‘So, then it is possible that the patient was
alive when you began the autopsy?’
A: ‘No.’
Q: ‘How can you be so sure, Doctor?’
A: ‘Because his brain was sitting on my desk in a
jar.’
Q: ‘But could the patient have still been alive nevertheless?’
A: ‘It is possible that he could have been alive
and practising law somewhere.’
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