Your Witness • Issue 14 • December 1998

Editorial
The new world of litigation
The Draft Civil Procedure Rules Part 32
Other news
Court reports
Letters to the Editor
Conference reports

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

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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 here. For those interested, the text of the entire set of Rules is available on the Lord Chancellor’s Department’s (LCD) web site at:
http://www.open.gov.uk/lcd/civil/procrules_fin/crulesfr.htm

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 here, 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

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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.

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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]

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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.

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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.

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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!

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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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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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