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Your Witness •
Issue 14 • December 1998
Editorial
It’s official!
The new Civil Procedure Rules will apply from 26 April
1999, along with a number of associated practice directions
and pre-action protocols. As we go to press the Rules
have still to be laid before Parliament, and the Lord
Chancellor’s Department is not expecting to be able
to publish them, the practice directions or any of the
protocols until some time after Christmas.
As we are not being allowed much time in
which to familiarise ourselves with the new requirements
before they come into force, I make no apology for devoting
so much space in this issue to those affecting experts.
The texts we reproduce here are, necessarily, draft texts,
but there is no reason to suppose that the final versions
will differ in any material way. On that basis, we have
also attempted, by way of commentary, to set the new Rules
in context and to describe some of the consequences of
their introduction. I hope you find the exercise useful.
Deferred payment schemes
I would recommend those of you who have been invited by
solicitor firms to agree to the deferred payment of your
fees to read Mr Christopher Beresford Hartwell’s
letter in this issue. His firm has had three such approaches
but has felt able to agree to only one of them, for the
reasons he sets out.
We are also grateful to Mr John Keast-Butler
for sending us copies of correspondence he had with a
London firm of solicitors. The proposal the firm put to
him was that he should agree to payment of his fees being
made within 12 months of receipt of his report or upon
settlement of the case, whichever was the earlier. As
we have been learning, there is nothing particularly unusual
about such a notion, whether or not the inducement is
offered of being included on a list of ‘preferred’
expert witnesses.
The novelty in the approach to Mr Keast-Butler
was that he was told he needed to indicate his willingness
to be instructed on this basis before he could be sent
further details of the new terms. It is perhaps hardly
surprising that there has been no reply to the letter
he sent in June pointing out the illogical and unlawyerlike
nature of such a request!
Late payment: a call for action
The ever-present concern of experts about late payment
of their fees is once again apparent from the letters
in this issue. What is new is the call, which two of our
correspondents make, for concerted action to deal with
the problem. As I see it, the main difficulty with Dr
Hall’s suggestion for a list of slow payers lies
in establishing criteria for their inclusion. One expert’s
view of what constitutes unacceptable delay might well
not accord with that of another. Also those operating
blacklists run the risk of being sued for defamation.
However, I hope that the expert witness organisations
will at least investigate the ideas our two contributors
have put forward. J S Publications is working
on a system that will help alleviate the late payment
problem and I will report on that further in the next
issue of Your Witness.
In the meantime, it should be possible for
one or more of the expert witness organisations to arrange
for the lists of pending actions in the high and county
courts to be monitored on their members’ behalves
for details of any new writs or summonses issued against
solicitor firms alleging non-payment of expert witness
fees. Of course, most such debts are never chased this
far, if only because litigation is the option of last
resort which almost inevitably spells the end of the parties’
business relationship. Appearance of a solicitor firm
on the list might, however, serve as a warning to other
experts to treat approaches they may receive from the
firm with due caution.
In this connection I was intrigued to read
in The Lawyer that a London firm of solicitors,
Salfiti & Co., is currently facing two claims for
non-payment of fees to expert witnesses. Back in July
the same firm was successfully sued by a translator who
had acted on its behalf. Apparently, all three actions
arise from the same high-jacking case, with one of those
pending being brought by a psychologist who is claiming
fees amounting to £11,000. The other summons has been
taken out by the National Union of Journalists, acting
on behalf of a Middle East specialist who is allegedly
owed £10,000. The Lawyer adds that Salfiti &
Co. is defending both actions. In a counterclaim against
the psychologist the firm alleges duplication of invoices
and questions her qualifications, while in the other action
it disputes the terms of the agreement it had with the
witness.
It’s getting drafty here!
As the festive season draws near, we begin preparations
for the 12th edition of the Register. We will
be sending you your draft entry early in the New Year
so that you can review, and amend as necessary, the information
we publish about you. As always, it would help us considerably
if you can check and return the draft quickly.
Chris Pamplin
The new world of litigation
The new Civil Procedure Rules will come into
force on 26 April 1998, along with a raft of new practice
directions. From that date the way in which civil disputes
are dealt with by the courts of England and Wales will
change completely. No longer will the conduct and pace
of litigation be determined by the lawyers for the parties.
In future they will be controlled directly by the court.
It amounts to the biggest shake-up in civil justice for
more than a century.
Although highly significant, the introduction of the
new Rules marks but a stage in a rolling programme of
reform. As reported elsewhere in this issue, the first
steps have already been taken to implement the Government’s
plans for legal aid, and more are due to be included in
the Access to Justice Bill announced in the Queen’s
Speech. Over the next 3 years we can expect to see legal
aid withdrawn from an ever-widening range of civil actions.
Furthermore, by the end of that period what remains of
it will be much more tightly budgeted, and it will be
channelled through far fewer solicitor firms.
Then again, we are about to see some significant changes
in the way in which lower-value claims are handled by
the courts. From 1 April 1999 the ceiling governing automatic
referral to the small claims procedure will be raised
from £3,000 to £5,000 for all except personal injury and
housing actions, and this will undoubtedly limit the calling
of expert evidence in such cases. From the same month,
too, the great majority of claims worth between £5,000
and £15,000 are due to be allocated to the new ‘fast-track’
procedure, which in turn is characterised by tough timetabling
of the pre-trial stages of litigation and a marked reduction
in the need for expert witnesses to give their evidence
in court. To a greater or lesser degree, all these changes
will impact on the work of expert witnesses, but none
more so than the new Civil Procedure Rules.
The new Rules
The Civil Procedure Rules will be applied in the county
courts and all higher civil courts of England and Wales.
At the time of writing they have still to be laid before
Parliament, but barring any last-minute hitch they should
be approved before Christmas and published early in the
New Year.
The Rules cover all aspects of court procedure, and in
the latest stage of draft they were grouped into no fewer
than 40 sections or ‘parts’. While several of
these have a bearing on expert evidence, e.g. those dealing
with the ‘fast-track’ procedure already mentioned
and the disclosure of documents, only one is concerned
directly. This is the part entitled ‘Experts and
Assessors’, which is numbered 32 in the draft we
have seen but will, we understand, be numbered 35 in the
final version. The draft text of the part is reproduced
.
For those interested, the text of the entire set of Rules
is available on the Lord Chancellor’s Department’s
(LCD) web site at:
For anyone familiar with the recommendations made by
Lord Woolf in the Final Report of his Inquiry into the
civil justice system, the draft Rules contain few surprises.
There are some changes in emphasis, but the main thrust
is the same. This is conveniently and clearly summarised
in Part 1 as follows:
(1) The overriding objective of these Rules is to enable
the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is
practicable:
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate:
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the parties’ financial position;
(d) ensuring that it is dealt with expeditiously and
fairly; and
(e) allotting to it an appropriate share of the court’s
resources, while taking into account the need to allot
resources to other cases.
The main way in which it is envisaged that courts will
achieve this overriding objective is by pro-active management
of cases, which (to quote again from Part 1) may include:
(a) identifying the issues at an early stage;
(b) deciding promptly which issues need full investigation
and trial and accordingly disposing summarily of the
others;
(c) encouraging the parties to use an Alternative Dispute
Resolution procedure if the court considers that [to
be] appropriate and facilitating their use of such procedure;
(d) encouraging the parties to co-operate with each
other in the conduct of the case;
(e) helping the parties to settle the whole or part
of the case;
(f) deciding the order in which issues are to be resolved;
(g) fixing timetables or otherwise controlling the progress
of the case;
(h) considering whether the likely benefits of taking
a particular step will justify the cost of taking it;
(i) dealing with as many aspects of the case as is practicable
on the same occasion;
(j) dealing with the case without the parties needing
to attend at court;
(k) making appropriate use of technology; and
(l) giving directions to ensure that the trial of a
case proceeds quickly and efficiently.
Anyone familiar with the conduct of civil cases under
the current Rules of Court will appreciate what a sea-change
in our adversarial system of justice this kind of case
management is destined to bring about.
Some of the Rules on experts and assessors give statutory
authority to requirements, such as experts owing their
primary duty to the court, which hitherto have been rooted
in case law or quasi-legal sets of guidelines. Others
just as clearly seek to apply to expert evidence the aims
listed on above, although this does not necessarily make
their mode of operation or likely effect at all obvious.
For further guidance on that we need to look elsewhere.
The expert’s protocol
Much of this further guidance is due to be provided by
a pre-action protocol on best practice in the instruction
and use of experts. The object of having protocols of
this kind is to reinforce the operation of the Rules by
encouraging parties to settle their disputes before they
reach court. To this end, judges will have the power to
penalise parties that do not make use of the protocols
or neglect to comply with them, and as a result cause
needless litigation or lengthen the time the case takes
to conclude.
Four pre-action protocols are currently in preparation,
and two of them – for personal injury and clinical
negligence cases – are due to be finalised in January
1999. Another for road traffic accident cases has just
completed an initial 6-month pilot run but is to undergo
further trials in the spring. The expert’s protocol,
however, is still in draft form and is not due to be considered
by the Rules Committee until later this month. Once the
draft has been approved by the Committee, the LCD will
be releasing it for comment by interested parties. The
LCD has given up hope, though, of having it ready in its
final form in time for the launch of the new Rules in
April next year.
Although the draft protocol has yet to be published in
full, we do have some idea of what it will contain. This
is because extracts from it were annexed to an LCD consultation
paper on another topic which was issued earlier this year.
We reproduce these extracts ,
though it should be borne in mind that they may have been
amended since the consultation paper appeared.
Reducing costs
It will be evident from an even cursory reading
that both the Rules and the protocol are intended to encourage
greater openness and co-operation between parties. The
crucial objective here, as elsewhere, is to reduce the
expense of litigation, and the protocol, in particular,
addresses that issue head-on. Instructing solicitors are
enjoined to ask themselves whether it is even necessary
to call expert evidence. Would it assist the court, and
if so is the cost of providing it reasonable, having regard
to the amount of money in dispute? In effect, the solicitors
are being expected to second-guess the attitude the judge
will take when it comes to awarding costs.
Nowhere is this concern with expense more clearly apparent
than in the encouragement both the Rules and the protocol
give to the use of single experts. Note, however, that
the emphasis is on the use of an expert appointed jointly
by the parties rather than by the court, which was the
method recommended initially by Lord Woolf. Furthermore,
whereas the Rules provide a mechanism for court intervention
should the parties fail to agree on a joint expert, the
protocol stresses the less extreme alternatives of seeking
agreement on the issues to be addressed by the experts
for both sides and of affording either party the opportunity
to contribute to the instructions given to the other side’s
expert.
In this respect the protocol may be taken to reflect
existing realities rather better than the Rules. Agreeing
on a joint expert was always going to be a major stumbling
block for lawyers steeped in the adversarial culture of
our courts, whereas in family proceedings at least orders
for joint instructions are commonplace. Providing instructing
solicitors with alternative means for co-operation short
of making joint appointments would seem to be an eminently
sensible idea, particularly if they specialise in, say,
personal injury. In such cases, although the instructing
parties might agree on a single expert to address issues
of quantum, it is altogether more difficult to imagine
them jointly appointing one whose evidence would be directed
to liability. If in these circumstances the court was
to insist on hearing just one expert, we may yet find
both parties appointing experts of their own to ‘shadow’
the expert accepted by the court.
Selection of joint experts
Where the court does insist on the appointment of a joint
expert, by what mechanism is the expert to be chosen?
No doubt this, too, will be covered by the expert’s
protocol, but the relevant passage is not among the draft
extracts published so far. However, it is a fair bet that
the procedure will correspond pretty closely to that laid
down in the draft pre-action protocol on the conduct of
personal injury actions. This requires that before a party
instructs an expert it must give the opposing party a
list of the names of the experts in the relevant speciality
whom it considers appropriate to instruct. The other party
then has 14 days in which to object to any of them, after
which the first party may instruct a mutually acceptable
expert.
Clearly, for this procedure to work, solicitors will
need access to more extensive lists of experts than many
of them are accustomed to maintaining on their own in-house
databases. In particular, it should enhance the usefulness
of those maintained by professional bodies or published.
Once a joint expert has been instructed, neither of the
parties would be entitled to introduce its own expert
evidence for that speciality– unless, that is, the
other side agrees, the court so directs or the joint expert’s
report has been amended and the instructing party is not
prepared to disclose the original version. Furthermore,
as a gloss on the Rule about putting written questions
to experts, the personal injury protocol provides that
in the case of jointly appointed experts such questions
should be sent via the solicitors who instructed them,
but that the answers are to be provided direct.
Of course, it must always be on the cards that the second
party will reject all the names on the first party’s
list. In that event the draft personal injury protocol
provides that they may each instruct an expert of their
own choice. At the same time it warns that at a later
stage the court may wish to investigate whether either
side was to blame for that outcome.
The Rules on the appointment of single experts are not
the only ones still wreathed in uncertainty. Under what
circumstances, for example, is it envisaged that an expert
appointed by one party might need to seek directions from
the court? There must be some doubt, too, about the usefulness
of any expert report that a court may order a party to
prepare for its opponent’s benefit. If such a report
was to be compiled by an employee of the serving party,
how much reliance is it likely would be placed on it by
the receiving party?
Interesting times
It is to be hoped that at least some of these points will
be clarified when the expert’s protocol is published
in full. It would be surprising, though, if the protocol
proved able to dispose of them all. Much will depend on
the practice that develops as the new Rules bed down.
In the meantime it would seem that there are enough issues
here to exercise both lawyers and experts for a long while
to come. To adapt the Chinese saying, we live in interesting
times.
John Lord
The
Draft Civil Procedure Rules
Part 32: Experts and Assessors
32.1 General duty of the court and the parties
Expert evidence should be restricted to that which is
reasonably required to resolve the proceedings.
32.2 Interpretation
A reference to an ‘expert’ in this Part is a
reference to an expert who has been instructed to give
or prepare evidence for the court.
32.3 Experts – overriding duty to the court
(1) It is the duty of an expert to help the court on the
matters relevant to his expertise.
(2) This duty overrides any obligation to the person from
whom he has received instructions or by whom he is paid.
32.4 Expert’s right to ask court for directions
(1) An expert may file a written request for directions
to assist him in carrying out his function as an expert.
(2) An expert may request directions under paragraph (1)
without giving notice to any party.
(3) The court, when it gives directions, may also direct
that a party be served with one or both of:
(a) a copy of the directions; and
(b) a copy of the request for directions.
32.5 Court’s power to restrict expert evidence
(1) No party may call an expert or put in evidence an
expert’s report without the court’s permission.
(2) When a party applies for permission under this rule:
(a) he must name the expert he wishes to use; and
(b) permission, if granted, shall be in relation to that
expert only.
(3) The court may vary or withdraw any permission given
under this rule.
32.6 General requirement for expert evidence
to be given in a written report
(1) Expert evidence is to be given in a written report
unless the court directs otherwise.
(2) If a claim is on the fast track, the court will not
direct an expert to attend a hearing unless it is necessary
to do so in the interests of justice.
32.7 Written questions to experts
(1) A party may put written questions to an expert instructed
by another party about his report.
(2) Written questions under paragraph (1)
(a) may be put once only; and
(b) must be for the purpose only of clarification of the
report; unless in either case,
(i) the court permits; or
(ii) the other party agrees.
(3) An expert’s answers to questions put in accordance
with paragraph (1) shall be treated as part of the expert’s
report.
(4) This rule also applies where evidence from a single
joint expert is to be used under rule 32.8.
32.8 Court’s power to direct that evidence
is to be given by a single joint expert
(1) Where two or more parties wish to submit expert evidence
on a particular issue, the court may direct that the evidence
on that issue is to be given by one expert only.
(2) The parties wishing to submit the expert evidence
are called ‘the instructing parties’.
(3) Where the instructing parties cannot agree who should
be the expert, the court may:
(a) select the expert from a list prepared or identified
by the instructing parties; or
(b) direct that the expert be selected in such other manner
as the court may direct.
(4) The court may vary a direction given under this rule.
32.9 Instructions to a single joint expert
(1) Where the court gives a direction under rule
32.8 for a single joint expert to be used, each instructing
party may give instructions to the expert.
(2) When an instructing party gives instructions to the
expert he must, at the same time, send a copy of the instructions
to the other instructing parties.
(3) The court may give directions about the arrangements
for:
(a) the payment of the expert’s fees and expenses;
and
(b) any inspection, examination or experiments which the
expert wishes to carry out.
(4) The court may, before an expert is instructed:
(a) limit the amount that can be paid by way of fees and
expenses to the expert; and
(b) direct that the instructing parties pay that amount
into court.
(5) Unless the court has otherwise directed, the instructing
parties are jointly and severally liable for the payment
of the expert’s fees and expenses.
32.10 Power of court to direct a party to provide
an expert report
Where a party has access to information which
is not reasonably available to the other party, the court
may direct the party who has access to the information:
(a) to prepare and file a report; and
(b) to serve a copy of the report on the other party.
32.11 Contents of report
(1) An expert’s report must:
(a) give details of the qualifications of the expert ;
(b) give details of any literature or other material which
the expert has relied on in making the report;
(c) say who carried out any test or experiment which the
expert has used for the report;
(d) give details of the qualifications of the person who
carried out any such test or experiment; and
(e) identify any relevant recognised body of opinion,
not already referred to in the report, which differs from
that of the
expert.
(2) At the end of an expert’s report there must be
a statement that:
(a) the expert understands his duty to the court;
(b) he has complied with that duty;
(c) his report includes all matters within his knowledge
and area of expertise which are relevant to the issue
on which his expert evidence is given; and
(d) he has given details in his report of any matters
which might affect the validity of his report.
(3) The expert’s report must state the substance
of all material instructions, whether written or oral,
on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall
not be privileged against disclosure but the court will
not, in relation to those instructions:
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the
party who instructed the expert, unless it is satisfied
that there are reasonable grounds to consider the statement
of instructions given under paragraph (3) to be inaccurate
or incomplete.
32.12 Use by one party of expert’s report
disclosed by another
Where:
(a) a party has disclosed an expert’s report; and
(b) that party did not, when disclosing the report, attach
conditions restricting its use at trial,
any other party may use that expert’s report as evidence
at the trial.
32.13 Meeting of experts
(1) The court may, at any stage, direct a meeting
of experts for the purpose of requiring the experts to:
(a) identify the issues in the proceedings; and (b) where
possible, reach agreement on an issue.
(2) The court may specify the issues which the experts
must address when they meet.
(3) Any such meeting is to be regarded as ‘without
prejudice’.
(4) The court may direct that after the meeting the experts
must prepare for the court a statement:
(a) of any issues within their expertise on which they
agree; and
(b) of any such issues on which they disagree, and a summary
of their reasons for disagreeing.
(5) Where experts reach agreement on an issue at an expert’s
meeting under this rule, the agreement shall not bind
the parties unless the parties have, before the meeting,
expressly agreed to be bound by such agreement.
32.14 Consequence of failure to disclose expert’s
report
A party who fails to comply with a direction
to disclose an expert’s report may not use the report
at the trial or call the expert to give evidence orally
unless the court permits.
32.15 Assessors
(1) The court may appoint a person (an ‘assessor’)
to assist the court in dealing with a matter in which
the assessor has skill and experience.
(2) An assessor shall take such part in the proceedings
as the court may direct and in particular the court may:
(a) direct the assessor to prepare a report for the court
on any matter at issue in the proceedings; and
(b) direct the assessor to attend the whole or any part
of the trial to advise the court on any such matter.
(3) If the assessor prepares a report for the court before
the trial has begun:
(a) the court will send a copy to each of the parties;
and
(b) the parties may use it at trial .
(4) Any remuneration to be paid to the assessor for his
services shall be determined by the court and shall form
part of the costs of the proceedings.
(5) The court may order any party to deposit in the court
office a specified sum in respect of the assessor’s
fees and, where it does so, the assessor will not be asked
to act until the sum has been deposited.
(6) The court may vary or revoke an order made under this
rule.
Extracts from the draft
protocol of best practice in the instruction and use of
expert witnesses
Introduction
This protocol is intended as guidance to help those who
instruct expert witnessess and make use of expert evidence
to do so more effectively and more efficiently. It is
also intended to facilitate better communication and dealings
between the expert and the instructing party and more
widely between the opposing parties to a dispute arising
under civil law. It incorporates the Academy of Experts
Model Form of Expert Report and the Law Society’s
Codes of Practice. Whilst it is for these parties to decide
whether or not and if so to what extent to adhere to the
specific provisions of the protocol, they do reflect principles
which a court will expect litigants and experts to observe.
Appointment
1) Before doing so, those appointing an expert ought to
consider whether the appointment is reasonable and/or
necessary and whether the use of expert evidence will
be cost- effective in the context of the case and helpful
to the court and should bear in mind that a court may
take these considerations into account when exercising
its discretion as to orders for costs and in its case-management
function.
[Criteria relating to selection, and instruction,
of experts]
12) All reasonable efforts should be made to agree the
instruction of a joint expert and to produce a joint letter
of instruction.
13) Where it proves impossible to instruct a joint expert,
all reasonable efforts should be made to agree the issues
on which each party’s expert should be instructed.
14) Progress on the instruction of a joint expert should
be reported to the court.
15) Each party to the proceedings should be given the
opportunity to contribute to the letter of instruction
between the opponent party and his/her expert. The letter
of instruction is not privileged.
16) It is the expert’s duty to co-operate in the
parties’ endeavours to produce a joint report. A
joint report should state areas of disagreement as well
as areas of agreement.
Procedure
17) The parties and their lawyers should consider and,
if appropriate, take steps aimed at agreement of experts’
evidence, or narrowing the issues. Where each party to
the proceedings instructs its own expert, the expert should
be encouraged to communicate or meet to seek to agree
the facts or otherwise narrow the issues in dispute. Such
communications will be without prejudice, will not bind
the instructing parties and should take place as soon
as practicable with regard to the issues in dispute.
18) If there was a meeting, a note stating the areas of
agreement and disagreement should be prepared and agreed
between the experts without delay, preferably at the meeting.
Those instructing experts must not give and experts must
not accept instructions not to reach agreement at such
a meeting on areas within the expert’s competence.
[Provisions relating to expert reports, terms of
business, and attendance at trial]
Other news
Extended scope for CFAs
The law has been changed to allow solicitors to enter
into conditional fee agreements (CFAs) for all categories
of civil litigation, apart from family proceedings. This
was brought about by the Conditional Fee Order 1998 (SI98/1860)
which came into effect on 30 July.
The move is aimed, of course, at making the forthcoming
restrictions in the availability of legal aid more palatable.
To what extent, though, potential litigants will be able
to avail themselves of the new facility depends very much
on their ability to insure themselves against losing their
case and, as a result, having to pay their opponent’s
costs.
Although ‘before-the-event’ insurance for legal
expenses is widely available, only 17% of the population
is covered. It follows that in order to be able to pursue
their cases under CFAs, most litigants would have to take
out ‘after-the-event’ policies, and currently
only eight insurers offer these. Moreover, it is only
in the area of personal injury litigation that such policies
can be said to provide cover at affordable rates.
The insurance industry’s willingness to devise more
such policies took a bad knock in October when the Lord
Chancellor confirmed his intention to allow successful
CFA plaintiffs to recover both ‘after-the-event’
premiums and the ‘success fees’ they have agreed
to pay their solicitors. As things stand at present, it
is either the client or the client’s solicitor who
ends up paying the premium whichever way the case goes.
As for the success fee, that is a commitment which currently
the client must fund out of any damages he or she may
be awarded. The Lord Chancellor, on the other hand, takes
the view that people should receive the compensation awarded
to them by the courts without having to suffer any deductions
from it.
This may seem only right and proper, but insurers point
out that the main reason solicitors acting under CFAs
are allowed to charge success fees is to compensate themselves
for the cases they lose and so don’t get paid for
at all. Requiring losing parties to meet these fees is
tantamount to having them subsidise their opponent’s
solicitors for past failures in unrelated cases. It is
as unfair to them as it would be to those found guilty
in criminal cases, should courts be required to hand down
tougher sentences to compensate the Crown Prosecution
Service for acquittals!
Insurers’ representatives have warned that if the
Lord Chancellor persists with his intention to include
the change in the forthcoming Access to Justice Bill then
they will lobby against it at every stage of the Bill’s
passage through Parliament. If he does, then, we may confidently
expect to hear a lot more about this issue over the coming
months.
Now for arbitration
Fifty years ago London was the world centre for arbitration.
But it steadily lost that position as arbitration became
slow, as expensive and almost as formal as the court proceedings
from which they were intended to offer escape.
Now, in the wake of the Woolf reforms, all that is set
to change. The 1996 Arbitration Act paved the way by authorising
arbitrators to devise solutions appropriate to the cases
before them. It also laid on them the duty to avoid unnecessary
costs. In the latter respect the Chartered Institute of
Arbitrators has taken up the challenge by launching a
new form of arbitration, the London Scheme, under which
parties will be told in advance the maximum amount of
costs they will be allowed to recover. The Institute has
further suggested that this should not exceed 20% of the
sum in dispute. In addition, the London Scheme provides
for ‘fast-track’ arbitrations and conditional
fee arrangements between parties and their lawyers –
all very familiar for experts who have been following
developments in litigation, but new to arbitration.
To achieve the Scheme’s aims those in charge of
arbitrations will need to become just as proficient in
the arts of case management as judges in the civil courts.
The intriguing difference is, of course, that many experts
are also qualified arbitrators, and under these new arrangements
it is they who could be doing the managing.
What’s in a name?
Not enough if it happens to be ‘The Official
Referees’ Court’. The title gives no indication
of the work the court does, and few outside the professions
most concerned would know either. In belated recognition
of this the court’s title has now been changed to
‘The Technology and Construction Court’.
Even this title is something of a misnomer, because the
court’s jurisdiction, though wide, does not extend
to all cases of a technical nature. After all, many of
those heard by the Patent Court can be described in similar
terms. The court does deal, however, with almost all cases
that turn on scientific issues. The range of these is
enormous, from disputes over computer software, through
claims arising from fire or flood, to environmental litigation
in the widest sense. Above all, the court tries major
construction cases and hears appeals from construction
arbitration awards.
The re-naming of the court coincided with the appointment
of Mr Justice Dyson as its head. Although Official Referees
sat in the High Court, they were never High Court Judges.
In future, though, they are to be addressed as ‘My
Lord’ instead of ‘Your Honour’.
For some forthright comments from Mr Justice Dyson on
one of the first cases he heard in his new role, see .
Court reports
A case of inadvertent disclosure
As readers will know, documents that are brought into
being for the purpose of litigation are privileged from
disclosure. In the case of an expert’s report, privilege
is deemed to have been waived once the report is exchanged.
If, on the other hand, the party that commissioned the
report decides not to adduce it in evidence, the party
is not, and cannot be, required to disclose it. In such
circumstances, the only course open to the other side
is to subpoena the expert to give evidence on its behalf
at trial. While the principle is clear enough, there is
still plenty of scope for argument about its ramifications,
as a recent case has made clear.
The plaintiff in Clough v. Tameside & Glossop
Health Authority alleged medical negligence, and
the defendant authority routinely obtained a statement
from the hospital doctor who had treated her, a Dr Pandy.
Since his statement was sought with a view to its use
in defending the action it was undoubtedly privileged.
A consultant psychiatrist, Dr Hay, was instructed on
behalf of the authority to examine the plaintiff and prepare
a report on the injuries, if any, she had suffered as
a result of her treatment. For this purpose the instructing
solicitor supplied Dr Hay with a bundle of papers relating
to the case, including Dr Pandy’s statement. In due
course Dr Hay’s report was disclosed to the plaintiff
because the authority intended relying on it at trial,
but Dr Pandy’s statement was not disclosed. However,
the existence of Dr Pandy’s statement was mentioned
by Dr Hay in the report that had been exchanged, and the
plaintiff’s solicitors sought production of it as
well.
At the initial hearing of the application the authority
sought to have the request dismissed, contending that
as the doctor’s statement had not been relied upon
by its expert when preparing his report it was irrelevant.
The district judge, on the other hand, concluded otherwise
and ordered disclosure of Dr Pandy’s statement to
the plaintiff. The authority appealed this decision and
at the subsequent hearing advanced different reasons based
on privilege. Unusually, therefore, for an appeal, the
matter was argued afresh.
In her judgment Mrs Justice Bracewell drew a distinction
between, on the one hand, material supplied to an expert
as background documentation on the case for which opinion
is being sought and, on the other, communications between
the expert and the instructing solicitor which fall outside
that category. She concluded that as Dr Pandy’s statement
had been supplied to Dr Hay for his consideration it fell
in the first category, and that as Dr Hay’s report
had been disclosed to the plaintiff on the basis of the
statement having been considered by him, privilege in
the statement had been waived. It mattered not that Dr
Hay may have found Dr Pandy’s statement unhelpful
in the preparation of his own report: the plaintiff was
entitled to see it. It would be unfair on the plaintiff
for her not to have access to everything on which the
defendant’s expert might have based his
opinion.
Having reached her decision on the basis of the arguments
heard and the authorities cited by counsel, Mrs Justice
Bracewell went on to observe that in any event she would
have had no hesitation in exercising her discretion in
favour of disclosure on grounds of public policy and the
need for candour in professional negligence cases. She
also had this to say about expert evidence:
‘The duties of experts are clearly laid down in
[the Ikarian Reefer case]. Those duties apply
to all the courts in all divisions and require experts
to give independent assistance to the courts by way
of objective, unbiased opinion in relation to matters
within their expertise. An expert must state the facts
or assumptions on which the opinion was based and should
not omit to consider material facts which detract from
any concluded opinion.
‘An essential element of the process is for a
party to know and to be able to test in evidence the
information supplied to the experts in order to ascertain
if the opinion [has] a sound factual basis or [is based]
on disputed matters or hypothetical facts yet to be
determined by the courts. If an expert has discounted
some evidence supplied to him, he may, at the conclusion
of the case, be held wrong to have done so and his opinion
may thereby be invalidated. Equally, he may have assumed
an incorrect significance for a particular piece of
material. It is only by proper and full disclosure to
all parties that an expert’s opinion can be tested
in court: in order to ascertain whether all appropriate
information was supplied and how the expert dealt with
it. It is not for one party to keep their cards face
down on the table so that the other party does not know
the full extent of [the] information supplied...’
Reverting to the instant case, the judge went on to say
that whether or not the treating doctor’s statement
advanced the plaintiff’s action for negligence could
only be judged by testing all the evidence. Without knowing
what it contained, the plaintiff’s counsel would
be handicapped in any attempt to question the conclusions
of the defendant’s expert. If the statement turned
out to be significant, then production of it would have
been essential. If, on the other hand, it is of little
or no material importance it should still be made available.
Candour is crucial.
Comment: This is not the first time
it has been suggested that the act of supplying an expert
witness with documents which would otherwise be covered
by legal privilege would have the effect of waiving that
privilege if the expert’s report was adduced in evidence.
On the other hand, it has to be said that Mrs Justice
Bracewell’s judgment in this case runs counter to
a line of decisions supportive of legal privilege, including
one (Vista Marine Inc v. Sesa Goa) decided 3
months later. Yet the judgment in Clough would
seem to be fully in line with the Woolf reforms, and in
particular those reforms intended to encourage greater
openness between parties.
What, then, may the consequences of this judgment be
for expert witnesses and their instructing solicitors?
Well, one course of action not open to either of them
is to exclude, or remove, from a report intended for exchange
any reference to privileged documents the expert has been
shown. Undoubtedly it would be safer all round if the
instructing solicitor was to supply the expert witness
with only those documents which are not privileged or
which, although privileged, the solicitor did not mind
the other side seeing. Exactly how feasible, though, that
would be in all cases is a matter for doubt, given the
concomitant need to provide the expert with the fullest
possible instructions.
Some solicitors might attempt to avoid the difficulty
by communicating in a letter, which would remain privileged,
the relevant fact or facts that they wish the expert to
take into account. However, that stratagem might well
fall foul of the requirement included in the new Civil
Procedure Rules that an expert’s report must state
‘the substance of all material instructions, written
or oral, on the basis of which the report was written’.
What is clear is that instructing solicitors are going
to have to exercise more care than many have shown in
the past when determining which documents, and how much
other information relating to the case, they may supply
to their experts without risking privilege. Moreover,
where much documentation is being handed over, it might
be prudent for experts to seek confirmation that it includes
nothing whose status as privileged material the solicitor
would wish to maintain.
In the event that the bundle does include material of
this kind, further instructions should be sought, because
on the face of it the expert must either return the relevant
documents or list them with all the others in the report.
It all amounts to yet another complication in a situation
that is already quite complex enough.
Judge lambasts overuse of expert evidence
We have noted elsewhere in this issue of Your Witness
the appointment of Mr Justice Dyson to head the newly
renamed Technology and Construction Court. We are indebted
to The Lawyer for drawing our attention to some forthright
criticisms the judge made at the conclusion of one of
the first cases he heard in that role. The newspaper reports
him as saying:
‘This case provides a good illustration of a problem
which is endemic in modern civil litigation. It seems
that litigation without expert witnesses is becoming
something of a rarity. Of course, I accept that expert
witnesses [often] fulfil a vital role... I strongly
suspect, however, that in many cases insufficient thought
is given by the parties, and in particular their legal
representatives, first to the question whether an expert
is really necessary at all, and secondly to what issues
the evidence of the expert should be directed.’
Mr Justice Dyson went on to explain that in the case
he had just dealt with engineers had been called as expert
witnesses whose evidence had gone beyond matters with
which they were properly concerned. They had produced
elaborate reports, one of which was 44 pages long, dealing
with issues that were inappropriate to the case, and this
had doubtless added considerably to its cost. He continued:
‘In view of the imminent implementation of the
Woolf reforms it is now opportune in civil justice to
take a hard look at the whole question of expert management.
It seems to me that all have a role to play in this:
case management judges, legal representatives and the
experts themselves.
‘Expert reports that are directed to issues with
which they should not be concerned merely add to the
expense of litigation. Everything should be done to
discourage this. In appropriate cases this will include
making special orders for costs.’
Comment: The problem that Mr Justice
Dyson has identified is surely the fault of lawyers rather
than experts. Up until now, it is lawyers who have always
controlled the conduct of litigation, and it is they alone
who have been responsible for instructing expert witnesses.
If their instructions are not sufficiently focused, or
if they fail to ensure that the resulting report sticks
to the issues pleaded, then it is they who must be at
fault.
Then again, if lawyers choose to employ a scatter-gun
approach, appointing experts to report on issues that
are inappropriate to the case, how can the experts be
blamed for it?
On the strength of Mr Justice Dyson’s strictures,
The Lawyer’s leader writer expressed the
opinion that both the Government and the judiciary seemed
determined to limit the use of experts in litigation and
that ‘the expert witness industry is clearly heading
for recession’. While we do not subscribe to the
latter view, there are nevertheless plenty of warning
signs of an official desire to curb the unnecessary deployment
of expert evidence, and all experts should be bearing
this in mind.
Letters to the Editor
Deferred payment of experts’ fees:
an alternative view
Mr C W Beresford Hartwell BEng CEng FConsE MIMarE, BHA
Cromwell House, writes:
I read Dr Bird’s letter, published in Issue 12 of
Your Witness, with interest. My practice has
also received a small number (I think three over the last
2 years) of similar approaches. Two we declined as a matter
of routine, for the reasons Dr Bird cites. The most recent
was couched in rather different terms, and at first, as
an academic exercise, my partners and I considered it
more carefully. We reasoned thus:
1. We are a small engineering consultancy. Many of our
clients are other, larger consultancies who engage us
for particular elements of a task. Though we might prefer
otherwise, we are frequently asked to accept ‘pay
when paid’ terms, and even when that is not specified
it is often the arrangement in practice. The concept of
payment for work done being deferred (for several months,
sometimes longer) is not new to us.
2. We have worked for a large number of solicitor firms
(some small, some large) on a wide variety of tasks (equally
varied in scale). The solicitor’s client might have
legal aid support or they might not. Some of our instructing
solicitors settle our accounts promptly, some do not.
Again, the concept that payment for our expert witness
work is, in practice, deferred is familiar to us.
3. Those conditions have applied since the practice was
established in 1969. We have survived since then. Though
we would baulk at 2 years, we concluded that a maximum
of 12 months was not unbearable. From a purely commercial
point of view, we could live with what was being offered.
4. We were concerned that eventual payment would, in
some way, depend on the outcome of the case. That would
clearly be unacceptable. We decided to seek absolute reassurance
that was not the case, and received it.
5. We were also concerned that we were being asked to
offer services exclusively to a particular firm of solicitors.
We were reassured that was not so. There was no question
of any form of retainer, we were not to be ‘kept
experts’.
6. We recognised that it was for us to maintain our professional
integrity, and to resist pressures (both internal and
external) to express opinions other than those we genuinely
held. We also recognised that it has always been thus.
Given that a great many of our instructing solicitors
return to us whether or not our work has, in the end,
supported their client’s position, we felt that solicitors
also recognised the value of our professional integrity.
We have entered into a ‘deferred payment’ agreement.
The solicitors may place enquiries with us or not, as
they see fit. We will consider whether or not we have
the appropriate expertise to handle the matter, and may
quote for the work, or not, in the usual way. We remain
free to decline to assist, and to accept instructions
from others.
Payment is in no way dependent on the outcome of a case.
The volume of work we receive from this particular solicitor
will amount to only a very small proportion of the expert
witness work we do, and to an even smaller proportion
of our annual workload. The financial burden we bear in
accepting deferred payment (in practice, only a small
one) is reflected in the rates charged, as is the risk
that the solicitors may cease trading or otherwise default
altogether.
It is for us to maintain our professional integrity.
To do otherwise would fail ourselves, other experts, the
professional bodies we are affiliated to, our instructing
solicitors, their clients and the courts. That is unthinkable.
While I understand the reasons for it, it is perhaps unfortunate
that some of the strongest voices casting doubt on the
impartiality of experts working under certain forms of
agreement are experts and their representative bodies.
Surely, any professional worth the title will conduct
his affairs in the proper manner. His community is a small
one, reputations are more easily tarnished than built.
Late payment of fees
Dr Peter Hall PhD MB ChB FRCPsych DPM writes:
I have been reading the correspondence about this matter
with interest – as I am sure have all your readers.
It really does seem a perennial (and very tiresome) problem,
and clearly there are both hawks and doves amongst your
readers.
Although I hope the imminent attempt by Government to
help small businesses will be of some assistance to experts,
I rather fear that this is going to continue a ‘marketplace’
situation, with the purchaser usually, but not invariably,
holding the trump cards.
...
Obviously, individual experts will vary in their ‘clout’,
and one wonders whether we could not give each other a
degree of mutual support. It would seem entirely reasonable
to me that experts who were faced by a particularly difficult
‘non-paying’ solicitor could add his/her name
to a shared database. What would probably be even more
effective is they could threaten to do so unless payment
of their fees were made by some reasonable date!
No doubt your more experienced readers would agree with
me that it is quite clear that solicitors and barristers
share information about experts, and I cannot myself see
why we should not do the same.
Are standard terms the answer?
On the same topic another reader, who has asked
to remain anonymous, writes:
I read with interest the article and in particular the
letters concerning late payment of debt in the autumn
issue of Your Witness and it seems that this
is a problem which is reaching epidemic proportions.
I am a forensic specialist who has achieved considerable
success as an expert witness. However, I have lost some
major clients through the chasing of debt.
It will be no surprise to anyone when I say that as any
litigation progresses we are asked to produce reports,
critiques, etc., at very short notice, yet when it comes
to settlement of fees the person instructing us is often
not available or some excuse is given for not paying at
that time.
The requirement in the Law Society Code of Professional
Conduct to pay experts whether or not the instructing
solicitor has been paid is ignored. The only remedy that
has worked for me is a report to the Office for the Supervision
of Solicitors, but this has meant the loss of the client.
I truly believe that the realistic solution is for the
expert community to group together as a unit with standard
terms and conditions which all solicitors instructing
those in the group must accept and meet. I believe
that only with the force of this grouping can anything
approaching commonsense be achieved as I am profoundly
sceptical of the Statutory Right of Interest provisions
and I think that these are very easily overcome by those
instructing us.
Finally, I was talking to a solicitor the other day who
in his own business takes the view that the giving of
credit is an anachronism and he takes the most severe
steps to get paid. Would that the legal community took
the same view with the paying of its experts.
... and what about preparatory work?
Dr Jonathan Chapman MB BS DRCOG writes:
Have any of your readers, and in particular general practitioners
reporting on victims of road traffic accidents, experienced
solicitors asking them to provide available dates for
possible court appearances but being unwilling to pay
for any preparatory work – hoping, no doubt, that
a settlement can be reached before the case comes to court?
It has happened to me on two or three occasions, with
my requests to meet with the solicitor to discuss the
issues and finalise terms being ignored until, predictably,
the case has settled out of court.
Am I not correct in believing that if one is asked for
available court dates, this is the appropriate time to
start preparing for the hearing, to meet with the solicitor
and discuss the issues being raised? I would welcome your
readers’ comments. It seems that the situation I
have described commonly arises where the initial instructions
have come from a medico-legal company acting on the solicitor’s
behalf.
Doubts about the use of single experts
Dr Duncan A Veasey BSc DPM MRCPsych writes:
May I add my voice to those questioning the wisdom of
relying on the evidence of single experts? It seems to
me to be quite the most serious problem posed by the Woolf
reforms.
It was plain from the start that a lot of bogus arguments
were being put forward to justify the changes which are
now being introduced. To my mind their only real justification
and likely positive benefit is the speeding up of litigation
to be achieved by wresting control of it from both sides’
lawyers and giving it to the judges. We have all seen
the tragic blight on individuals’ lives of 9 or 10
years of litigation. In the great majority of such cases
this has arisen because lawyers have been using delay
as a weapon, not because excessive numbers of experts
have been involved.
We are told that expert evidence costs too much, but
most cases involve a limited number of experts who are
paid no more than is reasonable for the work they do.
In legally aided cases, for example, experts’ fees
account for a mere 8% of the Board’s budget, which
is an astonishingly small percentage. Although the use
of single experts may be intended to cut costs, I personally
doubt whether many savings will result from it since the
relatively small sums of money involved will be soaked
up in other ways. More importantly, I think it represents
an attack on justice itself, since so many cases turn
on genuinely conflicting expert opinions.
I have heard the justification put forward – and
it was by a judge – that since judges are not capable
of weighing up divergent technical evidence there might
just as well be only one report for them to look at. I
believe judges are perfectly capable of deciding these
issues as long as evidence is properly presented, and
that is what experts are for. Indeed, in the recent case
of Sewell v. Electrolux Limited the Court of
Appeal ordered a retrial precisely because the judge at
first instance had failed to address and resolve the conflicting
medical evidence. Well, there will not be much of that
in future, if only one expert will be providing the evidence.
In any event, how feasible is it that cases can be decided
in this way? Even for those on the fast track, defendant
and plaintiff solicitors are likely to have experts whom
they favour for a variety of reasons. Moreover, the solicitors
will still want to have preliminary reports so that they
know where they stand. There is thus the possibility that
a case which would have involved two experts might now
require three – two preliminary experts, each of
whom is unacceptable to the other side, and a third expert
appointed by the court.
Then again, I wonder how these court- appointed experts
will be selected and by whom? I am prepared to stake a
small wager that those whose surnames begin with A or
B (and I have a personal interest in this) get considerably
more of the work than those of us languishing at the other
end of the alphabet!
Conference reports
The Society of Expert Witnesses
The Society’s autumn conference was held in Derby
on 30 October. The emphasis was on practical aspects of
expert witness work.
The first speaker was Dr Brian Mahendra, a psychiatrist
and barrister. He took his audience through a checklist
of questions which all experts should ask themselves when
preparing reports. On being approached the first three
should be, Am I the right expert?, Do I have the time?
and What will I be paid? Having decided to accept
the case, the next one has to be, What do I need first?
Answer: written instructions. On receiving
full instructions the expert must then ask, What duties
do I owe – to the solicitor, to the lay client, to
the court? and What information do I need?
Only after all these have been satisfactorily answered
can the expert safely get down to considering, What
should I write? and What tests should I employ?
We were then treated to a spirited presentation by Mark
Thomas on practice development for experts. Mr Thomas
began by establishing that, by and large, the Society’s
members engage in expert witness work because it is enjoyable,
it is intellectually challenging, they are good at it
and they get paid for it. But, he told his listeners,
if you want to do it other than just for fun, you must
adopt a thoroughly professional approach.
Mr Thomas outlined some of the consequences of treating
expert witness work as a business. It requires clear-sighted
analysis of the service on offer, an ability to present
it well and a full understanding of what clients require.
For most experts the emphasis is on skills rather than
support services. Clients, however, tend to take the skills
for granted, but will need to know just how easy it will
be to work with you.
The speaker after lunch was His Honour Adrian Head, whose
subject was the changing role of the expert witness. As
someone who had taken part in the preparation of the new
Civil Procedure Rules he was well placed to discuss their
rationale and their intended effect on the provision and
use of expert evidence. He warned his audience that the
courts will be expecting compliance with the new Rules.
Woe betide the expert or solicitor who flouts them.
The final session of the conference was devoted to a
mock trial staged by Professional Solutions. Although
the subject matter was light-hearted, the purpose of the
exercise was serious enough: to provide an insight into
the experience of appearing in court,
rather than the procedure. It was ably introduced by Paul
Garlick QC, aided and abetted (or was it opposed?) by
Dr Ken Gulleford and two ‘victims’ from the
audience.
The day closed with a lively open forum and an invitation
to the Society’s next conference on 16th April 1999
at the University of Warwick. The spring conference will
be twin track, catering for both experienced experts and
those new to the field. For more details call (0345) 023014.
Sue Jansons
Bond Solon conference
This year’s conference took place on 6 November and
was again held at Church House, Westminster.
The keynote address was given by Ian Burns, Director
General Policy at the Lord Chancellor’s Department.
He reviewed the current state of the reforms and their
likely impact on the work of expert witnesses. He also
touched on the slow progress in finalising the pre-action
protocol on expert evidence. He felt there was now no
prospect of this being ready for when the new Civil Procedure
Rules come into force next April.
Sir Louis Blom-Cooper QC spoke next about the role of
expert witnesses in the legal system and the emphasis
the new Rules place on the use of single experts. Sir
Louis also stressed the enhanced importance accorded written
reports and asked whether we do enough to ensure that
they are of the right quality.
The final speaker of the morning session was Professor
Daniel Simons of the College of Law, whose topic was the
new methods of funding litigation. For conditional fee
agreements to work solicitors needed to be able to assess
risk better, and Professor Simons was sceptical of their
ability to do this. However, it was the way forward the
Government had decreed, and we had all to pull together
if it was to succeed.
What the client wanted to know is, Am I going to
win? How much will it cost? and How long will
it take? Experts have a part to play in answering
all three questions. In future experts will have to be
able to provide solicitors with preliminary reports in
double-quick time and for fixed fees. Then, if the case
goes ahead and it is assigned to the fast track, experts
will need to produce full reports to a strict timetable
and to charge less for them than they have been doing.
There is little prospect, either, of experts getting paid
any sooner than they are now.
After lunch Suzanne Burn, secretary of the Law Society’s
Civil Litigation Committee, explained why solicitors also
feel threatened by the changes that are taking place.
They foresee both their workloads and their incomes being
reduced, and many of them will be seeking to share the
financial risks they face with others. In particular,
they will be looking for greater flexibility from experts
over the payment of fees.
An innovation this year was afternoon workshops. Unfortunately,
the one your reporter chose to go to was somewhat disappointing.
Its subject was ‘Taxation’, but the moderator
who spoke first spent most of his time discussing the
Woolf reforms. It was left to his colleague, a law costs
draftsman, to get down to the nitty-gritty and explain
why experts’ fees may get taxed down at the end of
a case.
Then it was back to the main auditorium for a quickfire
question-and-answer session before the conference closed
and the partying began.
John Lord
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