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J S Publications’ response to the LSC Consultation
The following is our initial, detailed, response to the Consultation paper. After reading this, you can:
Executive Summary
This is the response of the UK Register of Expert Witnesses to ‘The Use of Experts’ Consultation Paper issued by the LSC on 25 November 2004. The Consultation Paper is subtitled ‘quality, price and procedures’. We consider each of these in turn and draw the following conclusions.
Quality
- We do not see, and the Consultation Paper does not provide, any evidence for there being a general problem with the quality of expert evidence.
- The effect of the Civil Procedure Rules has been to solve many of the past problems that solicitor-based case management caused with expert evidence in civil cases.
- There has been a specific problem with the way the criminal courts have dealt with conflicting scientific evidence, and we propose procedural changes to deal with this.
- We believe that the existing system of combined control from professional qualifying bodies and the courts is the best way of ensuring competence amongst expert witnesses.
- No system of accreditation can prevent a first-class expert witness getting it wrong on the day, and we know of no accreditation scheme that would have excluded, for example, Professors Meadow and Southall from being instructed in the first instance.
Price
- We provide evidence from our own biannual surveys of expert witnesses that fees have increased by about 10% above the rate of inflation since 1997.
- We identify some inflationary pressures flowing from the Access to Justice Act 1999, and offer suggestions for how these pressures can be ameliorated.
- We predict a serious impact on supply and competition within the expert witness marketplace if the ‘meagre’ fee scales on offer in the criminal arena are imposed on expert witnesses in the civil arena.
- We understand the desire to achieve proportionality between the cost of expert evidence and the quantum in a civil case, or the seriousness of the crime, and suggest a staged approach to the instruction of experts as a way of achieving this ambition.
Procedures
- We appreciate the difficulties of assessing applications for prior authorities.
- We consider that removal of the prior authority system would have a serious impact on the supply of expert witnesses.
- We suggest that a staged approach to the instruction of experts would offer a way for the LSC case workers to make more informed decisions on applications for prior authorities.
- We welcome any pressure the LSC can bring to ensure expert witnesses adopt clear, written terms of engagement.
- We do not consider it appropriate for the LSC to stipulate mandatory clauses in those terms of engagement.
Introduction
J S Publications has published the UK Register of Expert Witnesses since 1988. The Register has developed over the years from a simple directory publishing project into a support organisation for expert witnesses. The majority of our time is now spent on the professional support and education of expert witnesses.
Our daily contact with expert witnesses – drawn from across all disciplines, and including some who undertake an occasional instruction and others who work almost exclusively as expert witnesses – has given us an unrivalled understanding of this ‘litigation support industry’.
The Consultation Paper is subtitled ‘quality, price and procedures’. We consider each of these in turn.
Quality
The Consultation Paper makes the following assertion [2.2]:
“We believe that solicitors should be encouraged to use accredited (quality
assured) experts, i.e. experts who are on the register maintained by the Council for the Registration of Forensic Practitioners (CRFP)”
We will consider this proposition under three heads – need, quality assurance and feasibility – before looking at the structural reasons why scientific evidence can cause problems in the courtroom.
Need for improved quality?
By seeking to achieve a position where all experts are CRFP accredited [2.3], the Consultation implies that the quality of expert evidence, across the board, is in need of improvement. However, not one piece of evidence has been offered to demonstrate this.
The civil arena
In the civil arena, following the introduction of the Civil Procedure Rules (CPR) in April 1999, we have seen:
- expert evidence placed under the complete control of the court
- the adoption of a cards-on-the-table approach to litigation
- absolutely clear guidance for expert witnesses on their overriding duty to the court.
In the system of case management that existed pre-CPR, lawyers held sway and often used expert evidence as part of their case management strategy. All too often this strategy involved finding the most circuitous route to court, and misuse of expert evidence was just one tactic they adopted. It was, perhaps, understandable, then, that the ‘hired gun’ was seen from time to time.
This has all been swept away. As Graham Bennett, Solicitor, puts it in his letter to The Times (30 Nov, 2004):
“The present law requires the judge to satisfy himself that the witness is expert in the field in which the witness proposes to give evidence. This is done by reference to the witness’s professional qualifications, his experience and, if need be, by questioning him as to his expertise.
“It is only if the judge considers that the witness is properly an expert, and that the witness evidence will assist the jury to make its findings, that such evidence can be allowed. Courts can and do refuse to allow evidence to be given by those who cannot prove themselves to be expert, so there is already proper scrutiny of the witnesses’ credentials.”
One effect of CPR has been to develop a meritocratic system within the civil arena, with the occasional bad expert being readily identified and widely reported, and the good experts no longer used as pawns in the lawyers’ games of brinkmanship.
The criminal arena
We recognise that those who have based their assessment of the quality of expert witnesses on media reports over recent months will have been likely to conclude that all expert witnesses are unprincipled Mammon-worshipping rogues! We have lost count of the number of times Trupti Patel has been (mis)reported as having been convicted on Professor Sir Roy Meadow's say so – even the Chairman of the Criminal Cases Review Commission was reported to have said as much in The Guardian (30 Nov, 2004).
The recent high-profile miscarriages of justice in child death cases do not, we believe, reveal a general problem with the quality of expert evidence – and the Court of Appeal agrees.
In its decision in the Angela Cannings Appeal, it made it plain that the reason for quashing the conviction was not the expert evidence, but some new evidence that had been identified (recent SIDS studies and the possibility of a genetic factor). Whilst the Court of Appeal warned experts of the dangers of being ‘over-dogmatic’, the main problem it identified was the way in which the courts handle conflicting expert evidence. The decision concludes:
“If the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.”
So, turning to the Sally Clark case, we finally have an example of an expert who got it wrong – Dr Williams. His failure to make reference to the laboratory report that ultimately led to Mrs Clark’s release was procedural. Rather than explicitly stating that he had looked at the laboratory report and found it irrelevant, he just (mis)filed it in with the other papers in the case. This was a failing. It had dreadful consequences. But is it really symptomatic of a general problem of quality amongst expert witnesses? We do not think so.
Professor Sir Roy Meadow has been vilified in the media. In the Clark trial:
- his 73,000,000:1 statistic was wrong
- the application of “Meadow’s Law” ran the risk of switching the burden of proof to the defendant
- he brought to the court an air of infallibility.
Our conclusion is that none of this ought to have been allowed, by the court, to result in a criminal conviction where the ‘outcome of the trial depended exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts’. The Court of Appeal subsequently thought likewise.
Leading-edge science
There is a fundamental incompatibility between what science can offer and what the English legal system seeks. And that is ‘certainty’. The courts want it; science cannot provide it. For any hypothesis to be scientific it must be capable of being proved wrong – if only the falsifying evidence could be found. Falsification means science can never provide absolute certainty.
Much of the vitriol that has been poured on Professor Meadow flows from this incompatibility. He was a world-acclaimed authority, and by all accounts his mere presence in court had a way of winning over juries. What was more, the Court of Appeal noted that he had a certain arrogance. What is arrogance if not a species of self-belief? What do lawyers and the courts crave? Certainty. Is it any wonder that Professor Meadow was called back time after time after time.
Does that make him alone the perpetrator of an injustice? We think not.
Conclusion
Based on our observations, we see no evidence of a problem with the quality of expert evidence in general at the present time.
Quality assurance?
By juxtaposing‘quality assured’ and ‘accredited experts’, the Consultation Paper implies that the accreditation of expert witnesses will achieve quality assurance. We do not accept this premise, for the following reasons:
- Accreditation does not prevent people ‘having a bad day’, a point accepted by the LSC [6.14].
- There is nothing to accredit in an expert’s ability to bear witness to their opinions (see below).
- We know of no system of accreditation that would have excluded Professor Meadow or Professor Southall (we name these individuals simply to exemplify our point to a wide audience, and not because we believe they ought to have failed to pass any system of accreditation).
- If accreditation is to function as a gate-keeper, it can only improve quality by excluding those who fall below some agreed standard. We have argued in the previous section that we can find no evidence for there being a general problem with the quality of expert evidence. Accordingly we fail to see the need for a gate-keeper, and will argue in the next section that the accreditation of expert witnesses is not actually possible.
Feasibility – what to accredit
In the current context, an expert is anyone with knowledge or experience of a particular discipline beyond that to be expected of a layman. An expert witness is an expert who is asked to form an opinion (based on the material he is instructed to consider) and bear witness to that opinion.
There is, currently, no precondition imposed by English law on the qualities demanded of an expert witness. It is for the court to make a judgment of the individual’s qualities and to weigh the expert’s evidence in accordance with this judgment. It is clear to us, therefore, that the only distinction between experts and expert witnesses is that the latter undertake to bear witness to their expert opinions.
What is there in a person’s ability to form an opinion and bear witness to it that is susceptible to accreditation? The basic skills and knowledge specific to giving evidence are really not that onerous, and are easily acquired through training. In fairness to the CRFP, even it does not suggest that such accreditation is possible. According to the CRFP web site, what it is doing is checking that experts:
“Take all reasonable steps to maintain and develop [their] professional competence, taking account of material research and developments within the relevant field and practicing techniques of quality assurance.”
So, the question that now requires answering is: Is the CRFP better placed than extant professional bodies to check an expert's qualifications and understanding of current practice and new developments in the field? To properly consider this question further, we need to review the way professional bodies operate.
Professional bodies
If there is a desire to move to a system of preselection of experts into those who are ‘sufficiently expert’ to accept expert witness instructions and those who are not – thereby removing the court’s freedom to determine on a case-by-case basis which expert witnesses it considers worthy of hearing – then why is it thought proper to hand this duty to an ad-hoc body, such as the CRFP, rather than encouraging the existing professional qualifying bodies to undertake the task? Indeed, some professions have already taken steps to clearly identify those of their membership suitably qualified to undertake expert witness work, e.g. RICS (Chartered Surveyors) and ICAEW (Chartered Accountants).
The Consultation Paper sets attributes of the CRFP that make it the ideal accrediting body. These include:
- putting the public interest first
- independence from Government and sectoral interests
- rigorous entry requirements based on an assessment of current competence against criteria developed for each specialty
- a published code of conduct
- a disciplinary procedure
The last two points are not unique to the CRFP. Any professional body could implement them, and many do. Indeed, the power a professional qualifying body has to deal with a member found wanting is more effective than any sanction available to the CRFP.
The problem we see for the CRFP’s model of rigorous assessment is that, in recognition of the futility of attempting to accredit the witness-specific elements of the expert witness's performance, it has to base its assessment on peer review.
Where a professional qualifying body already exists, the CRFP approach sets up a parallel system of peer review which would inevitably draw in the same sorts of people who would undertake peer review within the professional body. Having set up a parallel system, the CRFP has no power beyond removal of an individual from its register – whereas the professional body has further disciplinary powers.
The credibility of a claim by the CRFP ‘to have independence from government’ is rendered nugatory by its dependence on Home Office funding. The Home Office funded its creation, and now, with a reported 1,500 or more individuals on its register, the CRFP is probably still dependent on Home Office funding. This is because the vast majority of those 1,500 are likely to be employed by police authorities – and their budgets come from the Home Office. So the CRFP has simply switched direct Home Office funding for indirect Home Office funding. That seems a somewhat strange definition of ‘independent’.
The Consultation Paper claim ‘that the CRFP is free of sectoral interests’ is also flawed. The fact that the CRFP assessment regime for each specialty is developed through consultation with the experts in that specialty, and operated by experts drawn from that specialty, inevitably means that sectoral interests are drawn into the assessment process. This is not a criticism of the efforts of these people, just an inevitable consequence of the fact that you cannot accredit the witness-specific elements of the expert witness.
We turn now to the issue of the CRFP putting the public interest first. We would be more willing to consider this as a unique selling point in the CRFP’s favour if there was not a strong sense apparent in the expert witness community that the prime motivation of the CRFP’s push into the civil arena is its desire to achieve financial independence from the Home Office. We have already set out the basis for our view that, since the introduction of CPR, the use of expert witnesses in the civil arena has been put in good order. Yet it is only in the civil arena that the CRFP will find a sufficient volume of expert witnesses not employed by the State to give it financial independence. If this motivation is real, then the CRFP is guilty of putting self-interest before public interest.
The CRFP was conceived originally as a means to ensure that forensic scientists working for the prosecution in criminal cases met a basic standard of competency – because it was these experts who had been found wanting in the previous two decades. It laid no claim to experts in the civil arena, and, importantly, its procedures were designed to meet its stated purpose of providing (mostly) state-employed forensic scientists, scenes of crime officers, and the like, with a professional qualifying body. In its original role, the CRFP has a valuable, and welcome, function to perform.
Conclusion
The Consultation Paper reminds us that the CRFP arose out of concern following a ‘number of high-profile miscarriage of justice cases’. However, those cases are not the recent high-profile criminal trials centred on child deaths, but cases reported in the 1970s and ‘80s.
The CRFP, in creating an overarching system of professional skills accreditation, usurps the function of the professional bodies and the courts by preselecting experts who are ‘sufficiently expert’ to be instructed. Yet it will not prevent miscarriages of justice like those perpetrated in the 1970s and ‘80s.
Leaving aside the fact that we cannot conceive of an accreditation scheme that would exclude a man with the professional stature of Professor Sir Roy Meadow, an accreditation scheme will not prevent a thoroughly competent expert getting it wrong on the day.
All that is left to consider is the ability of the CRFP to deal with an expert found wanting after the event. The courts have a perfectly good, if slow, system of appeals to deal with such instances, and these usually highlight specific experts who have shown themselves to be wanting.
If we had any evidence that there was a general problem with the quality of expert witnesses, it is possible that we would consider the CRFP’s attempts to regulate worth pursuing, with significant changes. Since we see no evidence of a quality control problem, we do not see why experts should be made to subject themselves to CRFP accreditation – which will be costly in both time and money.
Science in the courtroom
Based on our analysis of the problems that have arisen within the criminal court, we suggest that the real culprit in the child death miscarriages of justice is the fundamental incompatibility between science and the courts, as discussed previously.
Understanding the problem
First, the problem is small. Tragic as the consequences have been for the Clark and Cannings families, these types of case represent a tiny fraction of the litigation in the UK. A feature of these prosecutions was that they were based almost entirely on post-mortem medical opinion evidence. After all, what other corroborating evidence is there when a child dies in its own home under the sole care of its mother?
In criminal cases, the court has to be sure beyond all reasonable doubt before returning a guilty verdict – say something in excess of 90% certainty. By contrast, in the civil arena the standard of proof is on the balance of probabilities – so 51% certainty will do fine. Clearly, it is only in the criminal arena that the falsification basis of science has the potential to cause problems.
Second, it is notable that in both the Clark and Cannings cases, the expert evidence was disputed. The defence teams put forward experts who cast doubt on the opinions of the experts instructed by the Crown. These were criminal trials. The court has to make a finding ‘beyond all reasonable doubt’ before reaching a guilty verdict. Yet all it had to work with was a mass of conflicting scientific evidence.
Accept the Courts are to blame
The Court of Appeal, ruling in the Cannings Appeal, recognised that it was the court’s handling of scientific evidence, not the evidence itself, that was the problem. We quote again the conclusion of that judgment:
“If the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.”
The central tenet of the Court of Appeal decision is that where a court is presented with evidence that is solely, or mostly, opinion evidence, and where there is a strong divergence of opinion amongst the experts, the court should not feel confident to arrive at a verdict of guilt.
If this sensible advice had been followed in the Sally Clark case, the barrage of conflicting scientific evidence would have prevented her conviction. Likewise, in the Cannings case, the array of defence experts disagreeing with the views expressed by the Crown experts should, in the absence of corroborating evidence, have introduced sufficient doubt to lead the judge to direct the jury to acquit.
Take the expert out of the courtroom
Whilst calls for accreditation are easily made, they are also cheap. The real answer lies in changes to court procedures. Legitimate areas concerning expert evidence are:
- the suitability and qualification of an individual expert and the reliability of that expert’s evidence
- the problem of frontier science or pseudo-science, and what happens when there are new developments
- risk evaluation in relation to expert evidence that is not guaranteed to be free from error.
In the United States, the case of Daubert -v- Merrell Dow Pharmaceuticals Inc (1992) 509 US 579 laid down a four-part test to be applied to all expert evidence that was scientific in nature. These four parts are:
- whether the theory or technique ‘can be (and has been) tested’
- whether the ‘theory or technique has been subjected to peer review and publication’
- in the case of a particular technique, what ‘the known or potential rate of error’ is or has been
- whether the evidence has gained widespread acceptance within the scientific community.
As a result of Daubert, expert evidence in the US is more likely to come under closer scrutiny, and at an earlier stage, than in UK proceedings. The parties are aware of the requirements from the outset, and it is common for the court to hear interlocutory applications in relation to the admissibility or relevance of such evidence.
Would such rules applied to our own criminal justice system have prevented the jury from hearing Professor Meadow’s statistical evidence in the Clark case? Would they have identified the fact that Dr Williams had failed to mention the toxicology report that ultimately led to Sally Clark’s release?
Daubert is not without its own problems. However, US lawyers have made some attempt to address the difficulties surrounding the nature of scientific evidence and its relationship to the judicial process. If our courts were to formulate similar rules, they would, in our assessment, be doing more to tackle the problem of how courts handle expert evidence – rather than forcing experts to subject themselves to expensive accreditation by the CRFP.
Price
The Consultation Paper sets out proposals to deal with the increasing cost of expert evidence. We will deal with a number of specific aspects of these proposals later, but first will offer some evidence on what has happened to expert witness fees over the past 8 years, based on our own surveys.
The LSC is hampered in its approach to expert fees because it does not currently gather data to enable it to know its annual spend on experts. Neither can it assess the differences there might be between the fees of experts working in the civil and criminal arenas, nor the various specialties.
Since 1997, we have undertaken a detailed biannual survey of the views, experiences and working practices of experts listed in the UK Register of Expert Witnesses.
The 2003 printed questionnaire was dispatched to all expert witnesses listed in the UK Register of Expert Witnesses along with the June 2003 issue of Your Witness. Experts could also complete the survey on-line.
The sample size of all our surveys is above 2,700, with between 500 and 700 experts responding on each occasion. So that you may appreciate something of the make-up of this constituency, it is important to know something of the UK Register of Expert Witnesses.
The Register lists expert witnesses drawn from across the range of specialisms. Some are relatively junior; others are at the top of their profession. It lists some experts who undertake mostly criminal work, a larger group who undertake mostly civil work, and a smaller group who do both. In the current edition of the UK Register of Expert Witnesses, which lists almost 3,000 expert witnesses, there are:
- 1,971 experts who undertake some criminal work
- 2,749 experts who undertake SJE instructions
- 2,515 experts who undertake publicly funded cases
We subdivide the responses to our surveys into broad groups of specialism, and the results over the four surveys conducted are presented below.
It is apparent that:
- the average hourly fee has increased by 26% from £88 in 1997 to £111 in 2003
- compounding an inflation rate of 2.5% across that 7 year period would account for an 18% increase, so the real-terms increase has been around 8%
- charging rates have a bimodal distribution, with medical consultants and accountants charging something like 50% more per hour than other experts.
It is no coincidence that expert witness costs in civil cases have increased since April 2000. While one of the main aims of the Access to Justice Act was to decrease the costs of expert evidence, the changes have, in fact, had quite the opposite effect.
How CPR has caused expert witness costs to increase
Whilst the CPR have been a source of major improvement in the conduct of civil litigation, one consequence has been the move towards every expert report being written as if it will be put before the court. Great care must be taken over the writing of such reports. This inevitably increases costs, and is one reason why the cost of expert reports has risen in recent years. However, the vast majority of cases never get to court – instead they settle. In such cases the expert’s report is used as a negotiating tool between the parties.
Is it necessary for reports used in this way to be as detailed as those that will go before the court? If not, then a reduction in costs could be achieved by ensuring experts are instructed to prepare an initial ‘outline’ report at an agreed cost, proportionate to the (likely) quantum of the case, that would allow the parties to seek a negotiated settlement. Only in the small number of cases that do not settle would the additional expense of a ‘fully detailed’ report, for use in court, need to be incurred.
We stress the point, however, that it must be for the lawyer (who has conduct of the case and an overview thereof) to instruct the expert to undertake a programme of work that can be completed within a cost regime proportionate to the quantum of the case. The choice of what can or cannot be left out of a report should not, and must not, fall to the expert, who is not competent to make such judgments.
How Medical Reporting Organisations have caused expert witness costs to increase
The Access to Justice Act widened the scope for conditional fee agreements (CFA). The resultant growth of claims farms and the widespread adoption of CFAs to handle PI cases have resulted in a rapid increase in the number of medical reporting organisations (MRO) in recent years. There is a large, and growing, groundswell of medical doctors who are against their use. Our own analysis is that the MRO market tends to increase costs by selling on reports for two or three times the fee charged by the doctor, and simultaneously reduces report quality by interposing an (often non-legal) intermediary between the instructing solicitor and the doctor.
The increase in the cost of expert evidence created by the MRO is significant but is not included in the statistics we are able gather. This is because experts can only tell us what they charge the MRO, not what the MRO charges the lawyer.
We anticipate that it will not be possible to prevent the use of MROs – that power lies only in the hands of the doctors. But the LSC has the power to prevent contracted solicitors from using an MRO, thus cutting expert costs. In addition, it must be possible for the activities of MROs to be regulated in two particular respects:
1) the mark-up applied should be made clear to the lawyer, insurer and expert
2) they should be prohibited from interfering with the direct line of communication between the solicitor and the expert.
Taken together, these changes would, we believe, ameliorate the worst aspects of MRO involvement in cases.
Whilst it is a common trick of the tabloid press to seek out extreme examples to prove a point, the LSC’s case is not well served by adopting the same tactic. Detailed reports of our surveys are freely available on our web site and could have been used by the Consultation Paper.
Fee bands
If fee bands linked to those currently set in the criminal arena are introduced in civil cases, then, based on our own survey data, expert witnesses would lose roughly half of their current fee income in such cases.
There is already considerable concern within expert witness and judicial circles about the low level of expert fees in criminal cases. Consider, for example, the following:
“The second matter that has been the subject of considerable complaint by
defence solicitors and experts is the low level of publicly funded experts’ fees.
I have had a look at the current scales, and, without going into detail on the
figures, they are meagre for professional men in any discipline. I am not
surprised that solicitors complain that they have often had difficulty in finding
experts of good calibre who are prepared to accept instructions for such poor
return. The best expert witness in most cases is likely to be one who
practices, as well as giving expert evidence, in his discipline, rather than the
‘professional’ expert witness – one who does little else. Justice is best served
by attracting persons of a high level of competence and experience to this
work. If we expect them to acknowledge an overriding duty to the court and
to develop and maintain high standards of accreditation, they should be
properly paid for the job. I hope that the Legal Services Commission will take an early opportunity to review and raise appropriately the levels of their publicly funded remuneration.”
A Review of
the Criminal Courts of England and Wales
by The Right Honourable Lord Justice Auld,
September 2001
To propose imposing such ‘meagre’ fee scales across the board for expert witnesses in publicly funded civil cases seems calculated to create the same complaints in the civil arena.
As we note in the next section, there is clear potential in the civil courts to tackle some of the causes of increasing expert witness fees without risking the negative supply and competition effects the current proposals are likely to cause.
Proportionality
The proposal that the seriousness of the crime be taken into account when selecting an expert witness is closely allied to the question of proportionality in relation to quantum in civil cases. In both areas, the same two basic considerations apply:
- expert witnesses should not be expected to work for no payment
- expert witnesses are not competent to determine what aspects of a case can be omitted from consideration.
It follows, therefore, that if cost savings are required, they have to be realised by the solicitor instructing the expert witness to undertake a programme of work that can be completed within the available budget. But solicitors, who are, of course, not experts themselves, often have some difficulty knowing what can safely be omitted in pursuit of proportionality. The answer to this conundrum perhaps lies with greater use of staged instructions by solicitors.
Staged instructions
An expert witness could be instructed to prepare an initial report. This would be designed to conduct a ‘reconnaissance’ of the expert matters and to identify potential areas for more detailed analysis. If the quantum in the case, or the seriousness of the crime, warrants investigation of particular avenues of expert enquiry, further report stages could be sanctioned.
This approach, already adopted by many experienced litigation lawyers in the civil arena, has the benefit of breaking potentially large expert witness assignments into smaller, more easily managed, stages. And each stage of reporting acts to inform the next stage.
Impacts on supply, competition, small businesses
The LSC has conducted an initial impact assessment on the proposals contained in the Consultation Paper. Two of the findings in the assessment we find particularly untenable.
The small firms’ impact test
If the proposals to introduce fixed fee bands in the civil arena (with fee levels linked to those currently set for the criminal court) are implemented, the fees for expert witnesses in LSC-funded cases will, based on our own survey data, roughly halve. Since, under the proposals put forward by the LSC, there are no changes that will reduce the operating costs of the expert witnesses, having their income drop by ~50% is likely to drive many expert witnesses away from publicly funded work in the civil arena. Since larger organisations are more likely to have a broader base of operation and thus be better able to cope with this change, these proposals, in our analysis, will have a disproportionate effect on smaller, sole proprietor or partnership businesses.
Competition assessment
The LSC concludes that on the application of the Cabinet Office’s competition filter test, their proposals will have no significant effect on the market.
In a free market, competition is one of the main factors to influence prices. The Consultation Paper notes this fact at paragraphs 9.3, 9.5 and 9.34. Competition is intimately associated with supply in the market. If halving the fees for expert witnesses working on publicly funded civil cases does result in a significant contraction of the market, competition will inevitably be reduced.
Highlighting entries in the UK Register of Expert Witnesses
We have, for many years, indicated those expert witnesses we list in the Register who are willing to be instructed in criminal cases and those willing to work in publicly funded cases. We are quite willing to include additional ‘flags’ so as to identify those experts prepared to agree to such terms as set by the LSC from time to time.
Conclusion
We came to the Consultation Paper with some sympathy for the plight of the LSC which, being funded through HM Treasury, simply has to find ways to keep a rein on costs. However, the LSC has:
- made general proposals when it does not actually know what it is spending on expert witnesses – and, for that matter, how will it be able to assess the effectiveness of any changes if it has no detail of currrent expenditure?
- selectively used ‘statistics’ to try to portray extremes as if they were norms
- not considered any of the structural reasons why the cost of expert evidence has increased in recent years.
Thus we conclude that the LSC has not identified the inflationary drivers on expert witness fees. The LSC has, in our analysis, failed to produce cost-saving proposals that are sufficiently targeted, or neutral in terms of supply and competition, as to be capable of being broadly accepted by expert witnesses instructed in civil cases. If, however, budgetary factors force the LSC to adopt these proposals, we anticipate that quality, competition and supply will all be adversely affected.
The LSC needs to work together with the DCA, CJC and others to engage in an honest and open discussion with experts on the factors that contribute to the cost of expert reports. If this can be managed, we predict that several features of the current litigation landscape could be identified which, if tackled, would not only drive down costs but also enhance access to civil justice and promote its better administration.
Procedures
Removal of prior authority
Prior authority is one of the reasons expert witnesses stay in the publicly funded market, despite low fee rates. The LSC engages in a circular argument when it notes, as a justification for removing prior authority, the fact that it is uncommon for experts' fees to be adjusted on costs assessments [10.7]. Of course they aren’t - prior authority prevents such interference on cost assessment.
An alternative: staged instruction
The suggestion we make – of changing to staged instruction of experts as a way of working towards achieving proportionality – would also help the LSC case workers to make informed judgments on applications for prior authorities. Initial expert reports would be modest affairs attracting a modest cost. If the initial report revealed the need for a further reporting stage, the LSC case worker would have the benefit of the initial report to inform the decision.
LSC-specific Terms of Engagement (ToE)
Based on our surveys, the number of expert witnesses who use written terms of engagement has increased from 32% in 1995 to 47% in 2001. We are regularly asked to help expert witnesses with payment problems that come down, in part, to the lack of written terms of engagement. Indeed, we continually encourage experts to adopt a clear set of terms, and have published suggested written terms in our newsletter and factsheets.
Any encouragement the LSC can offer in this regard is to be welcomed. However, we doubt many expert witnesses will be attracted by the terms proposed. They represent an erosion of the freedom to set terms that make commercial sense to the expert. For this reason, any such terms should be optional.
Specific Questions
The Consultation Paper asks a series of questions. Our response is as follows:
Question 4.2
Do you view services under the CLS and CDS (legal aid) as public services like the NHS? (See para 5.2)
No. Everyone uses the NHS; only an unfortunate minority use the CLS or CDS.
Question 4.3
Do you consider that accreditation will generally raise the quality of forensic services provided by experts? (See para 5.13)
No. We do not see, and the Consultation Paper does not offer, any evidence for there being a general problem with the quality of expert evidence provision. Furthermore, we do not consider meaningful accreditation of expert witnesses to be possible. In as much as experts can be accredited, we see no reason to impose a system that runs parallel to those that are coming onstream in the professional qualifying bodies. No system of accreditation can prevent a first-class expert witness getting it wrong on the day.
To convey our scepticism to a wide audience, we note here that we can conceive of no system of accreditation that would have excluded Professors Meadow and Southall (we name these individuals simply to exemplify our point to a wide audience and not because we believe they ought to have failed any system of accreditation).
Question 4.4
Do you agree that the bodies identified by the Commission for the quality assurance function are the most appropriate? Are there any other bodies that should be considered as quality assurance bodies? (See para 6.9)
As we do not believe there is a generic quality problem, we do not accept that expert witnesses can be accredited. We do believe that professional qualifying bodies are best placed to accredit experts. We do not think the promotion of the CRFP, especially into the civil arena, is necessary. It is likely to be ineffective and incapable of gaining widespread support amongst experts.
Question 4.5
What is your professional body and do you consider that it would be practicable for it to work with the CRFP to develop a post-qualification forensic work specialism as we propose? (See para 6.12)
See our reply to question 4.4.
Question 4.6
Do you agree with the Commission’s view that, even in the long term, compulsory accreditation is not practicable? (See para 6.14)
Yes, but the LSC’s ambition to see most experts undertake CRFP accreditation, together with moves by others such as the Civil Justice Council, are likely to create de facto compulsion, which would accord with the CRFP’s stated ambition.
Question 4.7
To what extent do you support the Commission’s quality assurance proposals and are they equally applicable to all types of proceedings? (See Part 2)
We do not see any evidence, and the LSC does not provide any, that suggests there is a general problem with the quality of expert evidence. There is, however, a clear problem with how the courts deal with ‘serious disagreement between distinguished and reputable experts’ providing science-based opinions. This is particularly so in the criminal courts which have to work to the higher standard of proof.
We have suggested that the solution to these quite specific problems lies in court procedure, and have suggested one possible development.
The current push to compel all expert witnesses to be subject to CRFP accreditation is both unnecessary and will be ineffective at tackling the causes of the recent high-profile miscarriages of justice. Where the CRFP can be effective is in its original role of tackling the causes of the high-profile miscarriages of justice that happened in the ’70s and ’80s.
Question 4.8
Do you agree that experts’ fees for services under the CLS and CDS should be lower than in privately funded cases?
Expert witnesses are external suppliers to the CLS and CDS. Just as the NHS has to pay its external suppliers the market rate for the supply, so should the LSC pay experts. We think services supplied to the LSC, like in the NHS, should be paid for at the market rate – or at a discounted rate based on negotiation. If the LSC has to find cost savings, it should first seek to understand the true level of, and the factors that are causing inflation in, expert witness fees. We have identified some structural issues in the civil arena that are causing experts fees to rise. If the LSC works to have these addressed, it would likely find experts far more willing to engage in jointly seeking practical solutions.
Question 4.9
Do you agree that an expert should charge less in less serious crime cases? (See para 9.12)
See next question.
Question 4.10
Do you agree that “proportionality” should affect experts’ fees in civil cases?(See para 9.15)
The only way expert witness fees can be made proportional to the quantum in a civil case, and the seriousness of the crime in a criminal case, is for instructing solicitors to provide experts with instructions that are capable of being completed within the necessary budget. Expert witnesses are not competent to determine what aspects of a case can be omitted from consideration, yet many solicitors would struggle to make this judgment too.
We believe changing to the staged instruction of expert witnesses, as set out, would allow experts to help solicitors move towards achieving proportionality of expert witness costs.
Question 4.11
What are your views on “proportionality” of costs in family cases? (See para 9.21)
See previous question.
Question 4.12
Do you agree that, like lawyers, experts should keep a detailed record of the work they perform (and of the time taken), and what do you think are the benefits and drawbacks of doing this? (See para 9.33)
We have long recommended that experts maintain a proper record of their work so that they are in a position to provide contemporaneous evidence in support of their invoices.
Question 4.13
Do you appreciate the Commission’s difficulties in dealing with applications for prior authorities in cases that are not managed under individual case contracts? If so, do you agree that abolishing prior authorities and publishing guideline fees is a reasonable way of dealing with this issue? (See para 10.4)
Yes, we do appreciate the difficulty. We do not believe that bringing rates in the civil cases down to the, quoting Auld LJ, ‘meagre levels currently applicable in the criminal courts’ is a reasonable way of dealing with the issue.
By changing to the staged approach to instructing experts, both proportionality and helping the LSC case workers to make informed judgments on applications for prior authorities would be achieved.
Question 4.14
Do you agree that, for (a) civil and (b) family proceedings, the guideline rates for experts should have (i) a lower minimum and (ii) a higher maximum? And if not, why not? (See Para 9.17 and Annexes F and G)
Not applicable.
Question 4.15
Which view of an expert’s obligation to the court do you feel most accurately reflects the current position? If neither, please state your view of the obligation (See Annex H – Draft terms of appointment).
We see no basis for differentiating between the criminal and civil arenas in respect of the overriding duty. If the expert witnesses does not have an overriding duty to the criminal court, to whom does he owe a greater duty - government targets on crime clean-up rates?
We note, in passing, that advisory experts under CPR owe a duty only to their clients.
Question 4.16
Do you agree that, in criminal proceedings, the prosecution and defence should work to the same guidelines for experts’ fees? (See para 9.9)
Yes. However, if the criminal courts are working properly, i.e.
- the burden of proof is placed in the prosecution,
- the defence team is not expected to prove anything, only try to identify sufficient doubt, and
- juries understand their duties
then there is an argument to be made that the prosecution, which has by far the greater evidential burden, might be expected to use additional, and more senior, expert witnesses.
Question 4.17
Do you agree that, given the width of crime guideline rate bands in the regulations, it is appropriate to introduce guidance on fees within the bands and to divide the bands? (See para 9.11)
Any guidance that helps to reduce uncertainty, and attendant disputes, over fees is to be welcomed.
Question 4.18
Do you consider that additional specialisms need to be included in the crime guideline bands? If so, what are they, and what group do you consider they should be in? (See Annex E- Part 2)
We have no input.
Question 4.19
Do you agree that the number and cost of experts’ reports in public law Children Act cases have increased significantly in recent years? Do you consider that the assessment work undertaken (or not) by local authorities and the approach of a local authority towards payment of experts’ fees has a significant impact? If so, please explain by reference to examples. (See para 9.20 and Annex G-Part 2)
We have no input.
Question 4.20
Do you consider that, in public law Children Act cases, the court should pay for the expert services it approves/requires (in the same way that the court pays for professional and expert witnesses attending court to give evidence in criminal cases)? (See para 9.24)
We made this suggestion in our submission to the Woolf Report. We think it has much to commend it.
Question 4.21
Should solicitors and experts be able to agree to disapply any of the proposed standard terms of instruction in cases under the CLS and CDS? (See Annex H)
Yes, otherwise the terms are likely to act as a disincentive to expert witnesses who currently have the freedom to use terms that make commercial sense to their own circumstances.
Question 4.22
Do you consider that more detailed guidance than that proposed about fees is necessary, and, if so, do you have any to suggest? (See Annex E - Part2, Annex F and Annex G - Part 1)
No.
Question 4.23
What are your views on the categories of expert proposed in the fees guidance? Have you others to suggest and, if so, in which group should they appear?
We have no input.
Question 4.24
To help experts with questions about Commission-funded legal services do you consider that the Commission’s website www.legalservices.gov.uk could usefully include a section for experts?
Yes.
What next?
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