Your Witness • Issue 11 • April 1998

Editorial
Fees survey 1997
Focus on expert witness immunity from suit
Legal aid reform
Letters to the Editor

Introduction
Welcome to our redesigned and expanded eleventh issue! I hope you like the new layout and will find plenty of interest within its pages. The new edition of the Register will be going to press just after Easter, and by the beginning of May some 3,500 copies will be winging their way to solicitor practices across the UK. The new edition will be the largest yet, with more than 2,800 experts listed. I am also pleased to report that development of the web-based version of the Register is going well and we are currently on target for a launch of this new project in May. The Register web site is already attracting hundreds of visitors each week, and the addition of the Web Register will promote even more activity.

Expert witness or expert adviser?
The Society of Expert Witnesses is holding its spring conference on Friday 29 May in Cambridge. The aim of the event is to explore how the proposed removal of legal aid and widening of the scope of conditional fee agreements will impact on experts. It is already clear that experts are going to be brought into cases much earlier than at present, and the conference will be examining some of the ramifications of this trend.

The morning session will consist of presentations by invited speakers, covering: the impact of the ‘commercialisation’ of lawyers; the effect of much greater involvement of insurers in the legal process; and a review of the progress in implementation of the Woolf reforms.

The afternoon session will take the form of an open forum, with an invited panel of specialists, when delegates can raise topics of specific concern (this is an extension of the very popular format used at the Society’s last conference).

For further details please contact the Society direct on their local-rate helpline (0345) 023014.

Small claims concerns
The Lord Chancellor’s plans for cutting legal aid (see page 6) have largely overshadowed his other proposals for the reform of civil litigation. This is a pity, because the raising of the limit under which money claims are automatically referred to the small claims procedure deserves more attention. Research shows that the small claims procedure is not attracting more people to settle disputes through the courts, but is simply acting to transfer ‘small’ claims out of open court. It is the definition of ‘small’ that is of interest. In 1973, when the scheme was introduced, ‘small’ meant 75. By 1995 it had reached 1,000 through steady increments. In 1996, however, it came to mean 3,000, and in 1998 it is going to be 5,000.

As the value of claims dealt with under the procedure has risen there has been a marked increase in the involvement of lawyers. In 1993 there was legal representation of both parties in barely 2% of small claims hearings, but by 1996 this was the case in 26% of hearings. Whether there will be a corresponding increase in the use made of expert witnesses remains to be seen.

However, as Dr Henry Warson observes (page 7), there are some unsatisfactory features of the procedure with regard to the tendering of expert evidence. His letter has kindled our interest in the handling of small claims, and we have prepared a new factsheet (No. 21) on the issue. Even if you are never called upon to give expert evidence at a small claims hearing, you might well find this account of the procedure useful should you ever need to sue a solicitor for your fees!

Professional indemnity insurance
There are many general PI schemes on the market, but the Register Scheme is designed specifically for individuals engaged in expert witness work – which is why its premiums are so competitive. As we note in our comment on Mr McDowell’s letter (page 8), the Scheme’s insurers have confirmed that they would expect to indemnify its members against valid claims relating to ‘all work which a member of the Scheme undertakes on instruction from a professional adviser acting on behalf of a client who is engaged in or contemplating litigation’. I doubt if anything could be clearer than that, and I hope that it will encourage even more experts in the Register to ‘take cover’ under the very advantageous terms that have been negotiated for them.

The brokers tell me that they have had a number of inquiries about public liability insurance and are now planning to provide this as an add-on for members of the Scheme who require it. Please contact Philip Stevens or Jonathan Thomas, of Norwich and Peterborough Insurance Brokers, on telephone 01223 352421 (fax: 01223 350655) if you are interested.

And lastly...
Judges can sometimes be less that courteous to experts. But even if you have experienced this firsthand, you may count yourself lucky that you did not give evidence in a criminal case that was appealed last year. One of the grounds for the appeal was that the judge at first instance had interrupted the defendant’s expert witness no fewer than 204 times!

Chris Pamplin

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Fees survey 1997
In September of last year we asked for your help in a survey we were conducting about the fees charged by expert witnesses. This is the first instalment of the results of that survey. In all, 547 readers took the trouble to complete and return the form printed in Issue 9 of Your Witness, and we are most grateful to them for doing so.

The questions we asked
Although the form printed in Your Witness was headed ‘Fees Survey’ it also asked respondents to state their broad field of expertise, the number of reports they had written in the past 12 months and the number of court appearances they had made as an expert witness. The answers to these additional questions have been particularly crucial to our analysis of the questions on fees.

Given the diversity of the expert witness community there is little point in computing totals and averages for the whole of it. What experts are mostly interested in are the fees charged by others in their own discipline or speciality. Some consolidation of data is necessary, though, if any meaning is to be derived from the information their colleagues provide. What we will be attempting is an analysis by professional group and sub-group, with an indication of the range of fees charged within each. We believe that experts seeking up-to-date guidance on the ‘going rate for the job’ will find this approach more useful than a straight listing of the charges made by individual experts.

The answers we received
As a first step we have grouped our 547 respondents into eight categories, seven of which can be broadly defined by profession, while the eighth, inevitably, is for ‘others’. This enables us to summarise the answers we received from them in either graphical or tabular form. While most of these groupings will be self-explanatory, we should perhaps explain that ‘Medicine’ encompasses all those experts with medical or dental qualifications, be they surgeons, physicians or psychiatrists, and regardless of whether they are consultants or in general practice. ‘Nursing’, on the other hand, refers to all members of professions ancillary to medicine, such as occupational therapy and physiotherapy, as well as to nurses.

The first column in Table 1 gives the number of experts who replied in each category. From this it can be seen that 166 (or 30%) were medical doctors and 116 (21%) were engineers, with relatively speaking much smaller totals for each of the other categories. In contrast, the next column, which gives the average percentage workload represented by expert witness work, shows a remarkable similarity right through the table. This suggests that for each of these professional categories the answers we received to the other questions asked were representative of experts with a substantial involvement in expert witness work. It was therefore valid to attempt comparisons between them.

Perhaps the most striking difference to emerge from such comparisons is that illustrated by Figure 1. This contrasts the average annual totals of court appearances made, and reports written for litigation purposes, by members of the seven professional groups. It shows that, on average, experts with medical or dental qualifications write almost twice as many reports per year as those in professions ancillary to medicine, and four times as many as experts in any other profession. On the other hand, the incidence of court appearances was low for all the professional groupings.

feegrf97.gif (3059 bytes)

The remaining three columns of Table 1 set out the hourly rates charged by respondents in the seven groups for writing reports, and their half-and full-day rates for giving expert evidence in court. It can be seen that once again doctors and dentists top the averages, although they are followed quite closely by accountants and bankers! We shall be taking a closer look at the fees charged by doctors in the next issue of Your Witness.

Table 1. Summary of the results.

Professional category No. of replies received Workload
(mean %)
Mean hourly rate for reports () Mean rate for court
appear-
ances () Half day
Mean rate for court
appear-
ances () Full day
Medicine 166 34 124 489 870
Nursing, etc. 42 39 76 268 535
Engineering 116 34 73 285 560
Accountancy and Banking 34 37 116 375 821
Science and Agriculture 68 33 89 305 543
Surveying and Valuing 35 31 77 321 629
Architecture and Building 28 37 75 338 612
Others 58 32 76 300 525

Table 1 also demonstrates the extent to which the official allowances paid for expert evidence in criminal trials fall short of the going rates quoted in the final three columns. The current guidance given to determining officers is that consultant medical practitioners, psychiatrists and pathologists may be paid between 54 and 78 per hour for preparation of their evidence (covering examinations and reports) and between 267 and 384 for a full day in court. For other medical practitioners, and pretty well everyone else who took part in our survey, the official range is 36–77 per hour for preparation and 174–379 per day for court appearances. Here is yet another instance of the means by which we in Britain get justice on the cheap!

Cancellation fees
Of course, all experts charge for giving evidence in court, but by no means all of them look for payment if the hearing for which they have been warned is cancelled at short notice. In criminal cases, indeed, they have no right to make such a charge, and it is entirely up to the court’s determining officer whether they receive any recompense for time they have lost or the inconvenience they have suffered as a result of the cancellation. In civil cases, though, they do have the option of stipulating in advance the fees they would charge in that event.

The question then arises, How short does the notice have to be to justify charging a cancellation fee? Again, practice varies, and the test likely to be applied in any taxation of costs would be whether the notice given was insufficient to enable the expert to undertake other remunerative work. For any given period of notice some practitioners are bound to find that more difficult than others might.

Lastly, there is the question of the amount to be charged for different periods of notice, whether in cash terms or as a percentage of the fee that would have been charged for the court appearance had it taken place.

Table 2 shows that a higher proportion of doctors (and, to a lesser extent, other medical professionals) charge cancellation fees than is generally the case. In some professional categories, indeed, fewer than half of the experts who returned our questionnaire make a charge, even when the hearings they are due to appear in are cancelled at the last minute.

Table 2. Experts charging for cancelled hearings.

Professional category Notice of <24 hours Notice of 1–7 days Notice of 7–14 days Notice of 14–28 days
Medicine 78% 63% 33% 12%
Nursing, etc. 71% 57% 17% 7%
Engineering 53% 36% 23% 10%
Accountancy and Banking 51% 26% 18% 3%
Science and Agriculture 47% 37% 16% 9%
Surveying and Valuing 46% 20% 17% 14%
Architecture and Building 43% 25% 14% 4%
Others 62% 45% 28% 14%
Overall 61% 45% 24% 10%

However, among those experts who do make a charge for cancelled hearings, there is a quite striking similarity as to the amount they levy. As Table 3 demonstrates, whatever their profession they charge on average between two-thirds and three-quarters of their normal fee should the hearing be cancelled less than 24 hours beforehand, and around half that fee if the notice they are given is between 1 and 7 days.

Table 3. Percentage of normal fee charged for cancelled hearings.

Professional category Notice of <24 hours Notice of 1–7 days Notice of 7–14 days Notice of 14–28 days
Medicine 75% 55% 41% 27%
Nursing, etc. 76% 58% 46% 30%
Engineering 67% 48% 31% 30%
Accountancy and Banking 66% 44% 28% 30%
Science and Agriculture 71% 55% 39% 46%
Surveying and Valuing 66% 60% 50% 48%
Architecture and Building 69% 41% 40% 50%
Others 83% 52% 40% 30%
Overall 73% 53% 39% 33%

If you should be wanting to add a clause about cancellation fees to your standard Terms of Engagement, these two tables ought to be of some help to you in devising an appropriate sliding scale.

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Focus on expert witness immunity from suit
In English law judges, barristers, solicitors, jurors and witnesses all enjoy immunity from civil action brought against them in respect of anything they may have said or done in court during the course of a trial.

This is so for reasons of public policy. As Lord Salmon explained in 1974:

‘It is of great importance that all [of them] shall perform their respective functions free from fear that disgruntled and possibly impecunious persons who have lost their case... may subsequently harass them with litigation... The law takes the risk of their being negligent and confers upon them [immunity from action] as to whether or not they have been so.’

For expert witnesses the same immunity attaches to any report that they may be instructed to prepare for the purposes of being a witness in litigation. It also extends to preparation of the evidence that they are to give, including the collection and analysis of material relevant to the case. This has to be so if the immunity to which witnesses are otherwise entitled is not to be circumvented by suing them on the documents they have prepared for use in court.

Now it is true, of course, that the great majority of civil cases are settled before they reach court. Moreover, Lord Woolf’s proposals for case management envisage that in future most of those that do go to trial will be allocated to the ‘fast track’, a procedure that precludes consideration of oral evidence from expert witnesses. It must be assumed, though, that all expert witnesses enjoy immunity from suit to the same degree, whether or not they are required, or allowed, to give their evidence in court.

Professional negligence
It will be apparent from the foregoing that civil actions against expert witnesses which allege negligence in respect of evidence submitted in court are highly unlikely to succeed. What, though, of the other services experts perform on behalf of litigants? They could well be asked, for example:

• to investigate the circumstances giving rise to the dispute
• to conduct experiments to determine their cause
• to advise on the strengths and weaknesses of the client’s case
• to identify technical weaknesses in the opposing side’s expert evidence
• to take part in meetings of experts with a view to narrowing the issues in dispute; and, on occasion,
• to assist in negotiations to settle the dispute.

In all these additional roles an expert witness is as liable to be sued for negligence in their performance as would be any other professional adviser.

The required standard
The relationship between an expert witness and the instructing solicitor is a contractual one, whether or not the contract exists in writing. In common with other contracts for the supply of professional services, it is an implied term that the expert will exercise reasonable care and skill. If experts fail in this duty, they are liable in negligence.

The test of what is reasonable is the one laid down 40 years ago in Bolam v. Friern Hospital Management Committee and followed by the courts ever since. In his judgment in that case, Mr Justice McNair held that to establish negligence the standard to be applied is that of

‘... the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest possible skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.’

That this test applies directly to expert witnesses may be inferred from the remark of Lord Fraser in another leading case in the field of medical negligence, when he defined the standard that a party is entitled to expect of an expert to be:

‘... the standard of skill expected from the ordinary competent specialist having regard to the experience and expertise that a specialist holds himself out as possessing.’

Case law
Case law in this area is sparse, but what little there is of it is highly instructive. With regards to an advocate’s immunity from suit, the leading case is Saif Ali v. Sydney Mitchell & Co., in which the House of Lords decided that immunity extends to pre-trial work, but only when it is so intimately connected with the conduct of the case as to have the effect of determining the way in which the case is to be conducted at trial.

That decision was followed last summer by the Court of Appeal in an action brought by a woman who in earlier, matrimonial proceedings had sought ancillary relief from her husband. She subsequently sued her counsel for negligence in advising her to accept a settlement offered at the door of the court. Two of the three judges hearing the case in the Court of Appeal agreed that such advice, while it effectively precluded further conduct of the matrimonial cause, fully satisfied the required intimate connection laid down in Saif Ali to render the barrister’s advice immune from action.

Palmer v. Durnford Ford
In Saif Ali the Court of Appeal was confirming the decisions of two lower courts on an application by the defendant barrister to strike out the action for want of cause. In 1992 it fell to Mr Simon Tucker QC, sitting as a Deputy High Court Judge, to consider a similar application made on behalf of a firm of solicitors and an expert witness. The plaintiff alleged negligence on the part of them both, and regarding the expert Mr Tucker said in his judgment:

‘I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started and, a fortiori, as to whether he is qualified to advise at all... The problem is where to draw the line, given that there is immunity from evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use.’

After referring to the House of Lords’ decision in Saif Ali, Mr Tucker continued:

‘I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what can fairly be said to be preliminary to his giving evidence in court, judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune, but work done for the principal purpose of advising the client would not be...’

Landall v. Dennis Faulkner & Alsop and others
This approach was followed 2 years later in the hearing of a claim against a firm of solicitors and two doctors, one of whom had been the plaintiff’s expert witness in an earlier action for personal injury. The latter had agreed with the medical expert for the other side that an operation to repair the plaintiff’s injury would have an 80% chance of success, and his final report was in those terms.

In the event, the operation was not a success, and the plaintiff/patient sued for the difference between the sum assessed in anticipation of a favourable outcome and what he might have got had the operation not been attempted. Unfortunately for him, though, the judge found that the doctor’s report was:

‘... pre-trial work so intimately connected with the conduct of the case in court that it could fairly be described as a preliminary decision affecting the way that the case was to be conducted when it came to a hearing...’

and that, as such, it was immune from suit.

Hughes v. Lloyds Bank plc
In November 1997 the Court of Appeal considered yet another appeal against the decision of a lower court to strike out an action on grounds of immunity. In that case the plaintiff had sought to sue the estate of a doctor for negligence in reports he had written on her condition following a road accident. She maintained that she had relied on these reports in settling her claim against the driver, only to discover later that her injuries were more severe than the doctor’s reports had led her to suppose.

The judge at first instance had thrown out the claim partly on the grounds that the estate was immune from suit, because the expert reports had been provided by the doctor as a preliminary to his giving evidence in court.

Not so, said the Court of Appeal: his reports were not covered by the immunity of expert witnesses because proceedings had never commenced. In this the court was following the judgment in Palmer v. Durnford Ford. It follows that although you may think you are writing a report for the purpose of litigation, you may still be liable for negligence in its preparation if the litigation never gets off the ground.

Stanton v. Callaghan
These issues are now due to receive a further airing in a case that is scheduled to be heard in the Court of Appeal this spring. The dispute is between a married couple whose house suffered subsidence and a civil and structural engineer who advised them as to the remedial works necessary. The engineer submitted three reports recommending substantial underpinning of the property, and on the strength of these the owners commenced proceedings against their insurers seeking indemnity under their buildings policy. The engineer was to be their sole expert witness in this action.

At a preliminary hearing of the dispute with the insurers, directions were given that the expert evidence should be agreed if at all possible. The experts for both sides duly met to discuss possible remedies. At this meeting they agreed that another solution to the problem was feasible which would be substantially less expensive than the one involving underpinning. In a final report sent barely 3 weeks before trial of the action, the plaintiffs’ engineer provided costings for both options. He ended by saying that either scheme would return the property to stability and full market value.

Not surprisingly this agreement between the experts had an immediate impact on the value of the owners’ claim, so much so that they felt constrained to accept an offer to settle which gave them less than a quarter of what they had been seeking. It is now their contention that their engineer’s original advice had been right and his last advice wrong. Their claim against him is for the difference between the value of the house with full underpinning and its value without any remedial works undertaken, due allowance being made for the sum recovered from the insurers.

The basis of the plaintiffs’ claim is negligence or breach of duty on the part of the engineer in that (a) he failed to inform them that he had substantially changed his mind as to possible remedies before entering into an agreement about remedies with the other side’s expert, and (b) he was unduly influenced into changing his mind by the other expert’s assertion that underpinning represented a degree of betterment outside the terms of the plaintiffs’ insurance policy.

The defence advanced on behalf of the engineer is that as a prospective witness he is immune from suit in respect of any report on which his evidence would be based or any agreement that has the character of summarising evidence he would have given at trial. So far, though, his lawyers’ attempts to have the action struck out on these grounds have failed, though they have been given leave to appeal the latest decision against them to the Court of Appeal.

When the appeal is heard it seems likely that the arguments will turn on whether, in the circumstances of this case, an expert witness owes any duty of care to the client to make contact before, in effect, abandoning a large part of the client’s case; and if such a duty does exist, just how substantial the expert’s change of mind has to be, or sizeable the concession being contemplated, to give rise to that duty.

We await the report of the court’s deliberations with great interest.

John Lord

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Legal aid reform
It was widely rumoured last month that the Lord Chancellor was back-tracking on his plans to withdraw legal aid from all civil actions involving money or damages. In reality, though, it seems he has merely changed his mind about implementing them all at once. The Government had hoped that conditional fee agreements (CFAs) could be made to fill the gap left by legal aid, but it now accepts that in the short term the insurance industry will be unable to provide the necessary backing for these across the board. In these circumstances the Lord Chancellor’s Department concedes that ‘rushing into a "big bang" would not be right’. What we can look forward to instead is a two-stage upheaval.

Few would quarrel with Lord Irvine’s stated aim of re-focusing civil legal aid on priority areas such as social welfare and public interest cases. There is general support, too, for the idea of widening the scope of CFAs. What is more questionable is Lord Irvine’s preferred method of achieving his aim, which is to withdraw legal aid altogether from most kinds of civil litigation. As readers will be aware, it is still his intention to press ahead this summer with its removal from mainstream personal injury cases, and over the next 3 years from a whole string of other types of case.

There is a certain logic in initially singling out personal injury claims for this draconian treatment, since it is for them that CFAs have been most used hitherto. Even so, it is less than 3 years since that use was first permitted, and no research findings have yet been published on the success or otherwise of their introduction. Moreover, the purpose for which they were introduced was to provide an alternative means of financing cases when legal aid might not be available, not a replacement for it.

It is somewhat ironic, then, that the consultation paper that the Lord Chancellor’s Department published on 4 March should be entitled Access to Justice with Conditional Fees, because it is already clear that in more complex accident and industrial illness cases the proposed changes will almost certainly reduce, not enhance, the plaintiff’s ability to secure justice. It is, for example, accepted on all sides that the recently concluded long-running action brought by miners suffering from lung disease would ever have got off the ground, let alone have been won, had CFAs been the sole available means of financing it.

For the time being, at least, medical negligence cases will remain within the scope of legal aid. Given the complexity and high investigative costs of such actions it is plainly right that they should. It seems likely, though, that here again legal aid will be withdrawn just as soon as the Government has satisfied itself that CFAs can be made to work for them. This, though, presupposes that the insurance industry will be able to offer affordable premiums for ‘after the event’ insurance of medical negligence cases. Since only 17% of such cases succeed, there must still be some doubt about that!

All these changes to legal aid call be brought about by administrative means, and the Government reckons that by the end of the year 2000 they should result in a saving of around 100 million a year. Implementation of the other reforms announced by the Lord Chancellor last October requires legislation, and that must await a Modernisation of Justice Bill next autumn. This can be expected to authorise, among other steps, tightening of the merits test and limiting of legal aid provision to contracted firms of solicitors.

In the meantime, to help keep you abreast of developments, we have added the text of the Lord Chancellor’s Department’s consultation paper to our web site, and included both there and on our faxback service a new factsheet on CFAs (No. 22). We have also updated the existing factsheet on the Legal Aid System (No. 12) to take account of the latest state of the Government’s proposals for its reform.

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Letters to the Editor

Police co-operation
Dr D G Williams TD BSc MSc PhD MCB FRCPath writes:

As part of my work I have often been asked to analyse samples of body fluids and other substances for drugs. Normally these samples have been sent to me for analysis and returned to their source when I have completed the task. On two recent occasions, though, I have been asked to examine suspect material (i.e. tablets that were thought to contain amphetamines/ ecstasy), only to be told by the police that the materials could under no circumstances be released to me, and that I would have to travel to where they were kept to examine them. In one case this involved my having to make a journey from Sunderland to Birmingham and back! Apart from the implication that I could not be trusted with the samples, or trusted to provide a correct analysis, these journeys increased the cost of my reports. As both cases were legally aided, this surely represents an unnecessary waste of public money.

Has anybody else encountered this problem, and is there any reasonable explanation for it?

Comment: From inquiries we have been making it is clear that one of the major concerns of the police in drugs-related cases is to ensure that no question should arise subsequently as to whether a substance examined on behalf of the defence was the same as that examined on the prosecution’s behalf. Hence the elaborate custody procedures that have been developed by several police forces. It may be that the inconvenience and extra expense described by Dr Williams were due to the recent adoption of such procedures by the forces he was dealing with.

It does seem quite unnecessary, though, that he should have had to travel as far as Birmingham to examine a specimen. Almost all police forces send materials requiring analysis to the nearest laboratory of the Forensic Science Service, and when it comes to arranging defence examination of the materials there are well-established routines for transferring them, when required, to another of the Service’s laboratories. For Dr Williams the nearest one would have been that at Wetherby. Though still 90 miles away it would have been a jolly sight easier for him to have gone there than to Birmingham!

Like Dr Williams, we would be interested to hear should other readers have had experience of less-than-full co-operation from the police in carrying out their duties as defence experts.

Small claims worries
Dr Henry Warson BSc PhD FRSC writes:

I should like to comment on the very unsatisfactory position of expert witnesses in cases which are dealt with under the small claims procedure. A case in which I was recently involved had overtones of Kafka’s The Trial and Gilbert & Sullivan’s Trial by Jury, with a dash of Alice in Wonderland for good measure. (Like the Queen in Alice, the mother of the plaintiff interrupted the proceedings repeatedly!)

The case concerned a cover made of polypropylene which had allegedly caused microblistering on a recently resprayed car. Just 11 days before the hearing the expert witness for the plaintiff sent his client an additional report commenting on mine over 8 months earlier on behalf of the suppliers of the cover. In this he stated that he believed it to be too much of a coincidence that microblistering should only have occurred where the car cover made contact with the paintwork. In fact, that was not the case, as my own inspection had shown, and he was therefore mistaken in making the inference he did. Furthermore, the plaintiff’s expert must have known that the inert material of which the cover was made could not possibly have caused the damage of which the plaintiff was complaining. It almost certainly emanated from the cured paint itself, since there are always traces of moisture in a car coating and these would not have been removed by a ‘low bake’ repainting. Unfortunately, though, I did not see the other side’s additional report till 4 days before the hearing, which was barely time enough for me to provide the defendant with a hand-written rejoinder. In the event the district judge found for the plaintiff, on the basis of the tendentious statement made in his expert’s additional report.

The point at issue is that the plaintiff’s expert was not present at the hearing and so my client was deprived of the opportunity of cross-questioning him about the statement. In my view the outcome was a miscarriage of justice.

I suggest that in cases involving technology the whole procedure in the small claims court needs tightening up. In particular, I think experts’ reports should be made available to the opposing side at least 14 days before the case is heard and that parties should be entitled to require that an expert witness be present at a hearing for cross-questioning. I think, too, that appeals should be possible on questions of fact as well as of law. Lastly, persons not directly concerned with a case should not be allowed to interrupt proceedings!

Comment: The issue Dr Warson raises here is one of growing importance. When the small claims procedure was introduced in 1973 it was intended to provide a speedy and inexpensive means of settling low-value claims. In January 1996 the ceiling for such claims was peremptorily raised from 1,000 to 3,000 for all except personal injury cases, and now the Lord Chancellor is proposing to raise it again, this time to 5,000. The result has been to bring within the ambit of the procedure many disputes that would otherwise have been settled by open trial – with all the advantages, and not inconsiderable disadvantages, which that implies.

We would agree with Dr Warson that the informal procedure is ill-suited to dealing with cases which turn on technical issues, and we hope that the ongoing consultations about court procedure will lead to the tightening up he suggests. In the meantime, though, one piece of good news is that the Government is now proposing to apply to small claims cases the same rules for exchange of documents as for other cases. Instead of parties being required to send experts’ reports at least 7 days before the hearing, they will in future be required to serve them at least 14 days beforehand.

For a more extended discussion of the small claims procedure please see our new factsheet on the subject (No. 21).

Scope of the PI scheme
Mr C W M McDowell BSc CEng FICE PPIPHE Hon FIWEM FIHT FCIArb, Engineering Dispute Services writes:

In the final paragraph of your editorial on conditional fees (Your Witness, Issue 10) you wrote about solicitors bringing in experts to advise them, and then you say that, as expert advisers, they would not enjoy the same protection from suit as applies to expert witness work.

This raises a very interesting question. What is the difference between an expert adviser and an expert witness? Aren’t we all in fact just experts, as we are when we serve on European Standards Committees? I would find it very hard to find the dividing line, if I was called in by either a client (as has happened) or a solicitor to look at a problem, prepare a report, and discuss with them the chances of their success if they issued a writ. Does there have to be a writ issued before one is appointed as an expert witness? If so, some of my reports, which have then gone forward after the issue of a writ, were done as an adviser rather than as a witness.

I do think you should clarify this fairly quickly because it could mean that the PI insurance scheme that you have so carefully arranged for us may not be as useful as some of us, including myself, first thought. All of us must, at times, have done troubleshooting and advisory work rather than straight expert witness work. Even with an expert’s report, I have sometimes been asked by counsel to advise at a meeting on what I thought were the strengths and weaknesses of our case. Does this come under advice and, if so, is it covered by the insurance scheme?

Comment: No-one may be sued for what they say or do in court. For expert witnesses this same immunity attaches to any report that they may be instructed to prepare for the purposes of being a witness in litigation. Finally (and this, we think, answers one of Mr McDowell’s queries) it was held in Evans v. London Hospital Medical School ([1981] 1 WLR 184) that immunity also covers statements made prior to the issue of a writ, or commencement of a prosecution, providing the statements were made for the purpose of possible litigation or prosecution and at a time when either was being actively considered. Certainly, no action would lie with any reports written before the issue of a writ, should they have subsequently been exchanged and relied upon in court.

As John Lord’s article in this issue makes clear, for an expert’s report to enjoy immunity it must have been prepared as a preliminary to giving evidence in court. If, for example, an expert were to be instructed to investigate the technical aspects of a client’s claim and to report back on its strengths and weaknesses, it is highly unlikely that the solicitor would want to use that information in court. It follows that if the expert was subsequently sued for negligence in carrying out those investigations, immunity from action could not be claimed, since the report would almost certainly be deemed advisory in nature.

The same applies to all those other essentially advisory duties that experts perform in the course of litigation, such as identifying weaknesses in the other side’s expert evidence. Experts are also liable in negligence if, for example, they fail to make clear that they lack the necessary expertise to offer the opinion being sought, or if at a meeting of experts they agree a joint statement that undermines their side’s case. These things happen, and as John Lord shows, experts have been sued for negligence when they do.

It might seem that there is a world of difference between winning or losing a case of this kind, especially as most experts would have a good defence even where they lacked immunity. But they would still have to defend the action and incur costs which they might not be able to recover in full should they win. This, then, is an important advantage of PI insurance: it covers you for the expense of defending your professional reputation and livelihood regardless of the merits of the claim made against you.

However, the best reassurance of all that we can offer Mr McDowell, and any reader who may be considering joining the UK Register of Expert Witnesses Professional Indemnity Scheme, is the definition of the scope of cover that has been agreed between the Scheme’s brokers and Royal Sun Alliance. This is that the Scheme covers ‘... all work which a member of the Scheme undertakes on instruction from a professional adviser acting on behalf of a client who is engaged in or contemplating litigation’. Clearly, this definition embraces advisory work as well as the purely court-based activities to which immunity applies.

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Disclaimer
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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