Your Witness • Issue 15 • March 1999

The Access to Justice Bill
The Funding Code for legal aid
Civil Procedure Rules 1999
Practice direction: experts and assessors
Conferences and courses
Letters to the Editor


Thank you
The new 12th edition of the Register should be going to the printers in early April. This will be the largest Register ever publishd with well over 3,000 experts listed. Thank you for your support – you make the Register what it is!

We have also updated the Register web site to make it easier to use, and to raise the profile of the Web Register.

Three weeks to go
The ethos of civil litigation in England and Wales is set to change forever. All cases commencing on or after 26 April will be governed by new Civil Procedure Rules, as will all new steps taken in cases already underway. The Rules, together with their associated protocols and practice directions, implement many of the reforms recommended by Lord Woolf less than 3 years ago, and it would be hard to overstate their significance for expert witnesses. I make no apology, therefore, in continuing here the detailed coverage we began in Your Witness 14.

A senior official in the Lord Chancellor’s Department has likened the launch of the new Rules to ‘getting ready for a West End first night, except that this play will open simultaneously in 240 theatres across the country’. It would be surprising, therefore, if there were not some variation in the quality of performance. This is likely to be exacerbated by the fact that the 1,250 part-timers among county court judges have yet to be trained in the new procedures – the first course for them starts on 17 April, only 9 days before the Rules take effect.

More serious still, the IT back-up which judges will need to timetable the cases assigned to them has yet to come on stream. Indeed the Lord Chancellor has admitted that the technology to run the new system will not be fully developed and operational until late next year. The inefficiency of existing methods of listing cases for hearing is acknowledged to be one of the prime factors contributing to delay and expense in civil litigation, and it is disheartening that judicial case management should have to depend on them, if only for the next 18 months or so.

Initially, then, it looks as if application of the new Rules may be somewhat patchy. We can, however, expect judges everywhere to start making use of the disciplinary powers the Rules afford them. These relate in particular to orders for costs. In framing such orders judges will now be required to take into account the conduct of the parties both before and after commencement of proceedings – and, in certain circumstances, that of their expert witnesses as well. Sanctions will be imposed on those who contravene the Rules, or are deemed to have flouted the requirements of the practice directions and pre-action protocols that supplement them.

In the meantime, it might be as well for experts to get used to the new vocabulary. Plaintiffs are out, and we have claimants instead. What is more, they will no longer be serving writs or summonses but filing claim forms. Discovery, too, has been renamed: it is now disclosure. Finally, we can look forward to a summary assessment of costs (in the majority of ‘fast-track’ cases) or a detailed assessment of costs (for cases on the multi-track) in place of that old bugbear, taxation.

Equal access for all?
We also chronicle the progress through Parliament of the Access to Justice Bill. It is a sprawling measure that ranges widely and embraces many worthwhile reforms. In several crucial respects, though, it seems most unlikely to achieve its stated purpose of bringing justice within everyone’s reach.

For the past 50 years this objective has been secured, however falteringly, by the legal aid system. Most people would accept, though, that it is a system ripe for overhaul, if only to ensure that it continues to fulfil its original aims. But is this what the Lord Chancellor is really seeking to achieve in the present Bill?

In this connection, we were amused to read the following analysis of Lord Irvine’s position which a former President of the Law Society essayed in the New Law Journal. It read:

‘I am under Treasury pressure to reduce expenditure. I intend, therefore, to remove legal aid entitlement from various categories of cases. In future, too, legal aid work will be carried out only by specially contracted firms. These firms will be working for a bargain basement fee, which means that in the long term they can only deliver a bargain basement service. We hope that cases no longer eligible for legal aid will be undertaken on a conditional fee basis. We realise that lawyers will find only the more straightforward cases attractive, and that people with complicated or difficult claims will be unable to to obtain representation. But, alas, there are always casualties in this harsh world of ours.’

Much the same is to be expected from the replacement of the existing merits test by ‘flexible funding assessment’. This, too, is quite clearly intended as a means of achieving better cost control, and it spells the end of entitlement based on need. As the article on the Funding Code shows, control is to be achieved by reducing eligibility, potentially in arbitrary ways. Add to this the prospect of regional offices of the Legal Services Commission being allowed to switch funds between their various budgets to satisfy perceived local needs, and you have the makings of a system where the funding of some categories of case may be dependent on the applicant’s postcode and what’s left in the kitty.

The net effect of the proposals is that many individuals with deserving cases who would currently benefit from legal aid are not going to be able to get it in future. What price now equal access for all to justice before the law?

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Access to Justice Bill

The Government’s long-awaited White Paper on the reform of the legal system was published on 2 December, a few days after Issue 14 of Your Witness went to press. It was followed closely by the Access to Justice Bill, which is intended to give effect to the proposed changes.

The main provisions of the Bill have been given wide coverage by the national press, and so only a resumé of them will be attempted here. The Government proposes to replace the Legal Aid Board with a new body, the Legal Services Commission. This super-quango will have a significantly wider remit than its predecessor. It will operate a Community Legal Service that will have the twin responsibilities of administering legal aid in civil and family cases and of co-ordinating this activity with the work of advice agencies in the not-for-profit sector. It will also run, for the time being at least, a Criminal Defence Service, which will combine the Board’s responsibilities in that area with those of the Lord Chancellor’s Department for funding representation in the Crown Court.

Crucially, the Commission will be required to funnel most legal aid through firms and agencies that have contracts from it for the supply of legal services. In its White Paper, the Government envisages that these contracts will set prices for all necessary work and expenses incurred on a case – including, in civil matters, experts’ fees and disbursements. According to the Lord Chancellor, fixed prices create an incentive for solicitors to deal with cases more quickly and efficiently. Whether they are likely to guarantee quality in other respects is rather more doubtful.

Contracting is one of the ways in which the Commission will be expected to keep control of its expenditure on legal aid. This is all the more necessary in civil and family cases because, unlike the Board, the Commission will be funding them from a predetermined budget. To help it keep within that budget, the Commission will also have at its disposal a new, more flexible system for determining which cases are to receive aid.

It will be for the Commission to establish the ground rules for providing legal aid in civil and family cases, though in framing them it will be required to take account of criteria set out in the Bill and to observe priorities laid down by the Government of the day. It is intended that the Community Legal Service should operate on this basis as soon as it has been established, so the Legal Aid Board has already published a consultation paper setting out the ways in which legal aid might be allocated in future. It is worth noting, though, that there is specific provision in the Bill for implementing the most controversial of the present Government’s proposals, namely the complete withdrawal of legal aid from all personal injury claims other than those alleging clinical negligence.

The Bill completed its initial stages in the House of Lords on 16 March and has since had its Second Reading in the House of Commons. Already it has had an exceptionally rough ride. One feature of the Bill that attracted criticism from the outset was the powers it gave to the Lord Chancellor to issue ‘directions’ to the Commission that would not be open to debate in Parliament. A stinging rebuke from an all-party select committee forced Lord Irvine to backtrack on them. He now accepts, too, that the Funding Code the Commission is to follow when dealing with applications for civil legal aid should have separate parliamentary approval.

Lord Irvine has also abandoned a provision of the Bill that would have allowed him to extend the scope of conditional fee agreements to cover litigation over matrimonial property. Family law practitioners were quick to point out that this contradicted policies favouring conciliation in family disputes, whilst others stressed the inherent difficulty of establishing in such cases which party had ‘won’. Knowing that is, of course, essential for determining whether a party’s solicitor is entitled to a success fee and whether that fee could be recovered from the other side. In the event, the Lord Chancellor withdrew the proposal at the Report stage – which left some observers suspecting that it had only ever been intended as a bargaining chip or a means of diverting attention away from features of the Bill that were altogether more fundamental.

One such feature that has come to the fore only recently is that criminal cases are to enjoy priority in the allocation of legal aid. It was known, of course, that, unlike expenditure on civil litigation, expenditure on criminal litigation could not be ‘capped’. It had, however, been assumed by almost everyone that the budgets for each would at least be kept separate. Now it appears they will not be. As the Lord Chancellor put it in the debate at the Report stage, ‘The money... for civil legal aid is what is left over... after the requirements of criminal legal aid have been met.’

Over the last 4 years expenditure on criminal legal aid has been growing far faster than that on civil legal aid, and it is expected to continue to do so. It follows that we now face the prospect of aid in civil cases being restricted by both the Funding Code and unexpected, or unplanned for, increases in the demand for criminal legal aid. This is certain to spark off more controversy when the Access to Justice Bill is debated in the House of Commons. However, even if that were to result in further backtracking on the Lord Chancellor’s part, it would still leave intact his main intention in introducing the Access to Justice Bill that is to transform a long-standing, demand-led entitlement into a strictly controlled discretionary benefit.

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The Funding Code for legal aid

One of the Government’s key proposals for the reform of legal aid is the replacement of the existing merits test with a more flexible system for determining which civil and family cases are to be helped from public funds. It needs to be more flexible for two reasons: (i) to enable those assessing cases to take account of priorities and objectives that may change over time; and (ii) to ensure that expenditure from the Community Legal Services Fund does not exceed budget.

Few would argue with the Lord Chancellor’s contention that legal aid should not be made available to fund litigation when it would be more appropriate to use other, less costly methods of resolving the dispute. Nor is it likely that many would object to his proposal that funding assessments should take account of the availability of conditional fee agreements as a means of financing litigation. Where more are likely to part company with him, though, is over the criteria he has put forward for assessing the third of his preconditions for public funding, namely the merits of the case itself.

The Government’s criteria
In the White Paper he issued last December, Lord Irvine listed four criteria against which every application for civil legal aid should be assessed. They are:

  • the legal strength of the case and its prospects of success (to be quantified wherever possible in percentage terms)
  • the potential benefit to the assisted person and the likely cost (expressed as a ratio)
  • the wider public interest (which might, on occasion, justify support where either of the first two criteria was not met)

and, most significant of all,

  • the availability of resources.

Furthermore, to ensure that these criteria are observed, the Bill now before Parliament requires that the Commission adopts and follows a Funding Code that sets out how the criteria are to be applied in different categories of case. Just how tough the Code is intended to be is now apparent from the draft version the Legal Aid Board has since published for consultation.

The proposed Code
The same basic principle underlies both the existing merits test and the proposed Code. This is that legal aid should only be granted in circumstances where a case is sufficiently strong that ‘a prudent person’ would risk their own money in litigating it. The crucial difference between the two is that the Code is not intended to be applied uniformly over the whole range of civil cases. For example, it may be applied less strictly to those perceived to be of wide public interest or of a kind the Lord Chancellor has directed should receive preferential treatment. On the other hand, it can be tightened for cases of lesser priority or when funds are running low.

Another feature of the Code is that it eschews vague terms such as ‘reasonable grounds’ and requires instead that the prospects of success and cost/benefit ratios are both quantified and explicitly linked. Thus the draft Code proposes that where the prospects of success are very good (80% plus), the anticipated damages need only exceed the likely costs for the case to qualify for legal aid. Where, however, its success rating is 60–80%, aid will be granted only if damages are expected to exceed costs by 3:1. Finally, if the chance of success is reckoned to be merely 50–60%, the expected damages must exceed the likely costs by at least 4:1 for the case to merit support from public funds.

It is, of course, for applicants’ lawyers to make these forecasts. But those who get them wrong too often will have their contracts to undertake legal aid work withdrawn. The fear must be that in complex cases posing evidential or other difficulties, lawyers will opt for caution. As a result, the cases simply won’t qualify for aid. Another likely consequence is that experts commissioned to provide preliminary reports will increasingly find themselves being asked to express their findings numerically, at least with regard to assessments of risk.

Clinical negligence: a special case
One provision of the Code which will be of interest to many experts is that in cases where substantial investigations are needed before a proper assessment can be made of the chances of success, legal aid may be forthcoming to fund the investigations. Moreover, the aid can be provided even in circumstances where conditional fee agreements could be used to finance ensuing litigation. Not all categories of case will qualify, but those that should include industrial disease and clinical negligence claims.

Clinical negligence is one of the categories for which the draft Code proposes special funding criteria. It acknowledges that many clinical negligence claims which could receive funding for the investigative stage might not then satisfy the damages/cost ratios outlined previously, if only because litigation in this area is notoriously expensive. Accordingly, the Board’s consultative paper proposes a rather more generous regime to enable such cases to be pursued on legal aid. If the prospects of success are reckoned to be very good (80% plus), damages must simply exceed likely costs, as before. If, on the other hand, they are merely good (60–80%), estimated damages need be only 1.5 times greater than costs. Finally, those cases with just moderate (i.e. 50–60%) chances of success will be required to have damages anticipated at twice estimated costs to merit funding. As we have seen, for other kinds of claim this last ratio needs to be at least 4:1 to qualify a case for legal aid.

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Civil Procedure Rules 1999

The new Rules were eventually published on 29 January, just 3 months before they were due to come into force. They are grouped into 51 sections (termed ‘Parts’), each of which covers a particular topic. Although several Parts have a bearing on expert witness work, only one – Part 35 – deals with it specifically. We reproduced a late draft of this Part in our previous issue, so it is only necessary to note here the changes to that draft made during the final stages of revision. For those interested, the approved text of all the Rules can be consulted at, and downloaded from, the Lord Chancellor’s Department’s web site.

Part 35
Most of the changes to this Part that were made during its final revision amount to little more than a tidying up of its text. Thus one rule, that dealing with the expert’s right to ask the court for directions, has been moved to another position within the Part, and some of the text concerning experts’ reports now appears instead in a Practice Direction. Of much greater interest are the changes of emphasis that the final version reflects. There is, for example, a significant relaxation of the requirements for obtaining the court’s permission to call expert evidence. It is no longer essential for the party applying to name the expert it is proposing to use: it is now only required that the party identifies the field in which it wishes to rely on expert evidence.

In other respects, though, the rules in the final version of Part 35 are somewhat more stringent than they appeared to be while in draft form. Thus the one to which we have just referred, Rule 35.4, now includes a clause enabling the court to limit the amount of an expert’s fees and expenses that the instructing party may recover from any other party. Furthermore, if an expert should fail to answer a written question about his or her report that a party has put in accordance with Rule 35.6, there is now provision for the court to order that none of the expert’s fees and expenses shall be recoverable. Lastly, Rule 35.10, which concerns the content of expert reports, specifically requires that experts comply with the requirements of the Practice Direction.

It is pertinent, too, to draw attention to one potentially useful change that has been made to the rule dealing with meetings of experts. Throughout its text Rule 35.12 now refers to discussions between experts – a change that presumably caters for video conferencing and even telephone conversations. Experts should note, however, that this is the only alteration made to the rule. The court may still require experts to prepare a statement following any such discussion setting out the issues on which they agree and those on which they do not, together with a summary of the reasons for disagreeing. Clearly, the importance of keeping a record of what was said during the discussion will be as great as ever.

Readers who would like to have a copy of the approved text of Part 35, together with a brief explanatory commentary, may access it through Factsheet 35.

The Practice Direction
The Civil Procedure Rules were accompanied by 32 practice directions, one of which relates to Part 35 of the Rules and is reproduced opposite. Practice directions are subordinate to rules of court, being less concerned with principles than with detailing the steps that need to be taken in given circumstances. Nevertheless, the same sanctions are available to judges in dealing with infringements of them.

The practice direction on experts and assessors is a somewhat hybrid document. It amplifies a number of the Rules’ provisions (for example, those relating to the appointment of single joint experts and of assessors), while repeating others almost verbatim. It also sets out some detailed requirements concerning the content of expert reports which had figured previously in draft versions of the Rules. In addition, though, it specifies a couple of general requirements that are not even hinted at there. These are that an expert’s report must be verified by a ‘statement of truth’, and that it should comply with any approved expert’s protocol.

Helpfully, the form the statement of truth should take is prescribed in the practice direction, namely:

‘I believe that the facts I have stated in this report are true and that the opinion I have expressed is correct.’

Although some might have preferred to use ‘valid’ rather than ‘correct’, it seems unlikely that this additional requirement will prove a cause of difficulty.

With regard to the expert’s protocol, however, we are still largely in the dark as to its contents. While some extracts have appeared in print (and were reproduced in Your Witness 14), they were taken from a draft current at the beginning of 1998. A year later, the committee preparing the protocol has still to release a complete draft for comment. It is, in any case, now too late to have the protocol approved in time for the launch of the new Rules and Practice Direction on 26 April 1999. Whatever the reasons for the delay, it is most unfortunate that it should have occurred.

Revised Factsheets
In addition to preparing the new factsheet (number 35) mentioned above, we have updated a number of existing factsheets to take account of the changes that come into effect on 26 April. These are listed below.

ID Factsheet title
01 Civil Litigation and the Expert Witness
02 Expert Evidence
21 The Small Claims Track
23 Meetings of Experts
27 Expert Reports: Requirements and Characteristics
29 Instructing Solicitors: A Beginner’s Guide

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Part 35 – Practice Direction:
Experts and Assessors

This practice direction supplements CPR Part 35. Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by a single expert. Permission of the court is always required either to call an expert or to put an expert’s report in evidence.

Form and content of expert’s reports
1.1 An expert’s report should be addressed to the court and not to the party from whom the expert has received his instructions.

1.2 An expert’s report must:

(1) give details of the expert’s qualifications,
(2) give details of any literature or other material which the expert has relied on in making the report,
(3) say who carried out any test or experiment which the expert has used for the report and whether or not the test or experiment has been carried out under the expert’s supervision,
(4) give the qualifications of the person who carried out any such test or experiment, and
(5) where there is a range of opinion on the matters dealt with in the report:

(i) summarise the range of opinion, and
(ii) give reasons for his own opinion,

(6) contain a summary of the conclusions reached,
(7) contain a statement that the expert understands his duty to the court and has complied with that duty (rule 35.10(2)), and
(8) contain a statement setting out the substance of all material instructions (whether written or oral). The statement should summarise the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based (rule 35.10(3)).

1.3 An expert’s report must be verified by a statement of truth as well as containing the statements required in paragraph 1.2 (7) and (8) above.

1.4 The form of the statement of truth is as follows: ‘I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct.’

1.5 Attention is drawn to rule 32.14 which sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.
(For information about statements of truth see Part 22 and the practice direction which supplements it.)

1.6 In addition, an expert’s report should comply with the requirements of any approved expert’s protocol.

Where the court makes an order under rule 35.9 (i.e. where one party has access to information not reasonably available to the other party), the document to be prepared recording the information should set out sufficient details of any facts, tests or experiments which constitute the information to enable an assessment and understanding of the significance of the information to be made and obtained.

The instructions referred to in paragraph 1.2(8) will not be protected by privilege (see rule 35.10(4)). But cross-examination of the expert on the contents of his instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents to it). Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice to do so.

Questions to experts
Questions asked for the purpose of clarifying the expert’s report (see rule 35.6) should be put, in writing, to the expert not later than 28 days after receipt of the expert’s report (see paragraphs 1.2 to 1.5 above as to verification).

4.2 Where a party sends a written question or questions direct to an expert and the other party is represented by solicitors, a copy of the questions should, at the same time, be sent to those solicitors.

Single expert
Where the court has directed that the evidence on a particular issue is to be given by one expert only (rule 35.7) but there are a number of disciplines relevant to that issue, a leading expert in the dominant discipline should be identified as the single expert. He should prepare the general part of the report and be responsible for annexing or incorporating the contents of any reports from experts in other disciplines.

An assessor may be appointed to assist the court under rule 35.15. Not less than 21 days before making any such appointment, the court will notify each party in writing of the name of the proposed assessor, of the matter in respect of which the assistance of the assessor will be sought and of the qualifications of the assessor to give that assistance.

6.2 Where any person has been proposed for appointment as an assessor, objection to him, either personally or in respect of his qualification, may be taken by any party.

6.3 Any such objection must be made in writing and filed with the court within 7 days of receipt of the notification referred to in paragraph 6.1 and will be taken into account by the court in deciding whether or not to make the appointment (section 63(5) of the County Courts Act 1984).

6.4 Copies of any report prepared by the assessor will be sent to each of the parties but the assessor will not give oral evidence or be open to cross-examination or questioning.

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Conferences and courses

The legal press is full of advertisements for courses and seminars on the new Civil Procedure Rules, and it is easy to see why. The Rules are destined to revolutionise the way in which civil litigation is conducted in England and Wales, and lawyers have been allowed only 3 months in which to familiarise themselves with the new procedures. Experts, too, will need to be aware of the requirements affecting them, and while we have done our best to alert readers of Your Witness to these, many no doubt would welcome a more intensive introduction to their new obligations.

Society of Expert Witnesses
One way of getting up to steam would be to attend the Spring Conference of the Society of Expert Witnesses. The conference, which takes place at the University of Warwick on Friday 16 April, will be focusing on the practical consequences of the new Rules for experts. Three speakers will be addressing different aspects of this topic: John Peysner, who led a Fast Track Simulation Pilot for the Lord Chancellor’s Department; Tony Cherry, who until recently co-chaired the working group preparing the Expert’s Protocol; and Keith Uff, who will be discussing disclosure and privilege under the new Rules.

A subsidiary theme of the conference is ‘the avoidance of problems’, or how to ensure that the business side of expert witness work runs smoothly. Two members of the Warwickshire Law Society will be describing how solicitors select experts and what they expect of them, while two senior members of the Society will be offering advice on terms of engagement and letters of instruction. In addition, Martin O’Reilly, who is Deputy Director of the Office for the Supervision of Solicitors (OSS), will be explaining the OSS’s role in dealing with complaints against solicitors, focusing particularly on complaints from experts.

The day will conclude with an open forum at which the speakers will take questions from their audience. From past experience of the Society’s conferences, it should prove a most lively session.

Members of the Society have already been circularised with details of the conference, but it is in fact open to all. The fee for non-members is £90 plus VAT (or £105.75 in total), and this also covers the cost of all documentation, refreshments and a buffet lunch. Further information can be had from Sue Jansens on the local-rate number 0345 023014. However, if you are interested in attending you should contact her quickly, because she tells us that most of the available places have already been booked.

Thomas Sands Training
Thomas Sands has an impressive track record in running courses for expert witnesses, and this year it is adding a new one to its repertoire which will deal specifically with the Woolf Reforms. It will set out to explain, among other things, how experts should conduct themselves under the new Rules and Practice Directions, how they should deal with the various requirements these lay down, what the implications might be of signing a ‘statement of truth’, and what the court’s powers will be in respect of experts’ fees.

The new course lasts half a day and costs £125. This spring it is being held in Haydock on 1 June, in Coventry on 2 June and in London on 3 June. For further details, please telephone Carole Smith on 01628 667974 or fax her on 01628 667978.

Medical & Legal Training Services
This training organiser has got even quicker off the mark with a one-day course entitled ‘Report Writing after Woolf’. It takes place on 20 April at the Royal Society of Medicine in London, and although intended primarily for doctors, the course ought to prove no less useful to experts in other professions.

The aim of the course is to provide comprehensive training in all the tasks required of an expert witness under the new Rules, and this includes responding to instructions, preparing reports, meeting with other experts and giving evidence in court. The speakers are three solicitors, a barrister and a consultant orthopaedic surgeon, and they will also be conducting workshops during the afternoon session.

The course fee is £300 plus VAT (£352.50 in all). Further information can be had by telephoning MLTS on 0121 449 7098 or faxing them on 0121 442 4850.

Request for help
A research student, Claire Dunwell, has written to seek our help in locating psychologists who act as expert witnesses and might be able to assist her with a project on which she is engaged. Although it is not our practice to release names and addresses for such a purpose, we have agreed to bring Ms Dunwell’s request to the attention of readers of Your Witness, in case any of those who are psychologists might be willing to help her.

Ms Dunwell is conducting an investigation into the role of the media in reporting court cases, and part of this involves consideration of the advantages and disadvantages of allowing cases to be televised. She has devised a simple questionnaire to enable respondents to express their views on this and will be glad to send a copy to any psychologist expert witness who contacts her. Ms Dunwell’s address is 72 Greenback Road, Darlington, Co. Durham, DL3 6EL, and she may also be reached by telephone on 01325 256603.

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Letters to the Editor

Deferred/late payment of fees
Since our last issue went to press yet more readers have written in with suggestions for dealing with deferred or late payment of fees. Mr Sargeant’s letter is just one of several we have received on the topic. We plan to print a summary of the correspondence in our next issue, but in the meantime we would welcome more contributions to the debate.

Mr James A Sargeant, DipBE, FRICS, MAE, FCIArb, Currie & Brown, Hawkes Ltd, writes:

Mr Beresford Hartwell (Your Witness 14) takes a very pragmatic but principled position in accepting deferred payment by instructing solicitors. But whilst endorsing his principled approach, I believe that it penalises those solicitors or clients who do pay promptly.

For some years now we have used terms that provide for a long payment period as a matter of course, effectively 3 months from date of invoice. Like Mr Beresford Hartwell’s, our rates make allowance for payment being deferred by this period, plus an allowance for the risk of overshooting even this date. However, we also provide generous, graduated discounts for those who pay early – up to 10% for immediate payment, by means of retrospective credits. No system is entirely foolproof, but this does at least provide a means of keeping costs down for those able and willing to maintain a steady cashflow.

The approach seems to give a useful degree of flexibility whilst concentrating the mind of those who allow their company bureaucracy to lose them a useful discount. Where insurers are involved, of course, we often negotiate even longer terms, but price the fee accordingly.

On a separate point, it will be interesting to see in a few years time whether the existence of the Statutory Right to Interest will have had an effect – because in times to come the expert will be able to look back on late payments made up to 6 years before and weigh up the commercial implications of taking action to recover. If the defaulting party is no longer seen as a useful source of business there may be nothing to lose in catching up on past ‘entitlements’.

Office for the Supervision of Solicitors
Captain Chris Spencer, C F Spencer & Co Ltd, writes:

The letter accompanying Issue 14 of Your Witness was a timely reminder on payment problems. I enclose a copy letter detailing the latest problem with which we have been faced. The matter has now been settled, at least in part, with the solicitors concerned. But what now concerns me is the lack of action by the Office for the Supervision of Solicitors. Its letterhead claims that it is ‘Working for Excellence and Fairness in Guarding Standards’, and yet it felt that there is nothing it could do other than copy our letter to the solicitors about whom we were complaining.

I am writing to the Lord Chancellor to question whether self-regulation can be the way ahead for matters where the self-regulators so freely admit that they are too busy to do anything about them. I would be interested, though, to learn whether others among your readers have met with a similar response from the OSS.

The letter Captain Spencer received from the OSS was marked ‘Private and Confidential’, but another correspondent, Dr Richard Lansdown, has since reported receiving one couched in identical terms and over the same squiggle of a signature. As the OSS is clearly using a form letter, there can be no harm in our summarising its contents here.

The letter first of all apologises for a 6-week delay in acknowledging Captain Spencer’s complaint. It then proceeds to explain that because of the high volume of work with which the OSS has to contend, the only action it is able to take over complaints about unpaid fees is to copy them to the solicitor concerned! It adds that the OSS has taken no view on the matter, nor has it sought the solicitor’s comments. It has, however, drawn the solicitor’s attention to the relevant provisions of professional conduct and asked him to consider whether he should take action to resolve the matter.

The letter goes on to express the hope that what the OSS has done will achieve that end, but suggests that if it does not Captain Spencer might consider suing for his fees. Only if he were to secure judgment against the solicitor would the OSS be willing to reconsider the matter. In the meantime, it is unable to respond to any further enquiries about it and has indeed closed the file.

By any standards, this is an extraordinary reply for a regulatory body to send to anyone with a legitimate complaint about the conduct of a member of the profession it is supposed to supervise. It is, however, fair to add that in Dr Lansdown’s case, as well as in that of Captain Spencer, the modest action the OSS was prepared to take did the trick. Maybe in other cases, too, a letter from the OSS addressed to the senior partner would be all that is needed to jolt a firm into settling its account. We would be interested to hear, though, whether that has been the experience of other experts who have received replies to their complaints of the kind sent to Captain Spencer and Dr Lansdown.

In the meantime, Martin O’Reilly, Deputy Director of the OSS, will be explaining the OSS’s role in dealing with complaints against solicitors at the Spring Conference of the Society of Expert Witnesses.

Moving in the wrong direction
Mr C J G Macy, BSc, MSc, DipPsych, ABPsS, writes:

It is interesting that as the ‘Woolf reforms’ move us towards single expert witnesses as part of a more inquisitorial role for the courts, other jurisdictions are moving in the opposite direction.

Last year I had a meeting with a Professor of Forensic Psychiatry in Italy, during which we discussed various matters, including the different ways in which Italian and English courts deal with personal injury claims.

In common with much of continental Europe, Italy has operated an inquisitorial approach to litigation. They are now introducing elements of an adversarial system: that is to say, they are moving in the opposite direction from ourselves. This is because they have found that very often a single expert witness can offer only an incomplete rehearsal of the evidence and its consideration. The Italians are learning that if two expert witnesses, who are associated with, although not tied to, the opposite sides in a legal dispute, are enabled separately to present evidence and their considerations of it, the court is able to base its decision on a more complete set of data and opinions. Are we throwing the baby out with the bath water?

Documentation for medico-legal reports
Mr John Keast-Butler, FRCS, FRCOphth writes:

Quite often when referring a client for an examination and the preparation of a report, solicitors and insurance managers request that I obtain copies of the patient’s medical notes and hospital records from the general practitioner and hospital or hospitals where he or she may have been treated.

If the patient has been treated at the hospital where I am a consultant, it is perfectly easy and straightforward for me to get the notes out of the hospital records library, and I am happy to do that. If, however, they have been treated elsewhere, this can prove a tortuous, time-consuming and expensive business.

Medical records officers are loath to release copies of anything unless they can be assured that the patient is not intending action against their own institution. Otherwise everything has to go through the hospital’s solicitors, which means further delays. In addition, ever increasing charges are being levied for photocopying documents. Because of these factors, and similar ones applying to the acquisition of the general practitioner notes, I always refuse to obtain records from elsewhere.

It does seem to me that solicitors and insurance firms, with all the facilities that they have, should be responsible for providing the necessary documentation to enable an expert to get on with the preparation of any report he or she may have been requested to write. I would be interested in the views of other experts on this.

It is, indeed, surprising that experts should ever be required to obtain the medical records of patients on whom they have been instructed to report. It is all the more extraordinary that this requirement should now have been incorporated, albeit as an option, in the standard letter of instruction annexed to the pre-action protocol for personal injury claims. Since, under the new Rules, the vast majority of such claims are destined to be allocated to the fast track, and as fast-track cases will be subject to tight timetabling, it is surely high time that solicitors should shoulder the entire responsibility of obtaining the records needed by the experts they are instructing.

Adding to the controlled distribution list
Mr Geoff Hales, MBE, MRIN, MM, MIMgt, writes:

Whenever I am asked to assist with a case, I always enquire how the solicitor obtained my name and am glad to find that, while cross-recommendation is high, even higher is the Register. So I am confident that your practice of sending the electronic or book version to solicitors works in our favour, and I am grateful to you for doing so. Would it help if members submitted names of practices, which have approached them, to help you plug gaps in your distribution?

The controlled list is designed to put the Register in the hands of solicitors who will use the listed experts. If, like Mr Hales, you know of litigation practices we should consider placing on our list, then please do let us know their names and addresses.

And finally
We are grateful to Mr Michael Chapman, MRCVS, MIBiol, CBiol, DBIT, FCIArb, for supplying this entertaining anecdote:

Sir Montague Levine, Coroner for Southwark until 1997, recently gave a presentation to the Medico-Legal Society. After a very serious study of ‘Death in Police Custody’, he concluded the evening with the following story:

‘A doctor in the witness stand was being given a terrible time by a barrister who was having a good go at him. Said the barrister, “A man in your position must have a lot of commonsense and knowledge?” To which the doctor, who had had enough, replied "If I wasn’t on oath, I would return the compliment."’

Correspondents should note that we reserve the right to abbreviate letters that are sent to us for publication and to edit them for style.

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