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Your Witness •
Issue 5 • September 1996
Introduction
As we go to press with this issue of Your Witness
the Final Report has just been published of Lord Woolf’s
Inquiry into the civil justice system. It is a wide-ranging
report and signals some major changes in the way in which
litigation is conducted in England and Wales. The major
question mark over its implementation is whether the Government
will be prepared to find the money to resource the reforms
adequately.
Naturally, it is the chapter of the Report that deals
with expert evidence which is likely to be of most interest
to readers of Your Witness, and in a special
insert John Lord examines the evolution of Lord Woolf’s
thinking on that topic and conflates the new recommendation
with those made last year in the Interim Report.
Otherwise the main focus of this issue is on training,
and I make no apology for that. It has always seemed to
me that proper training is essential to the acceptance
of expert witnesses as key players in the litigation process.
As Lord Woolf writes in his Final Report, ‘Professional
people who take on responsibilities as expert witnesses
need a basic understanding of the legal system and their
role within it. They also need to be able to present their
evidence effectively, both in written reports and orally
under cross-examination.’
We will aim to give regular coverage to training in future
issues of Your Witness. In the next one I hope
to be able to include an assesment by a participant of
one of the courses on offer this autumn.
Chris Pamplin
Engineers in the
box
With the growth in construction-related litigation, there
is an increasing demand for engineers as expert witnesses.
However, to be effective in the witness box you need practical
experience, for no amount of theoretical teaching can
be as valuable as time actually spent in the witness box.
The old maxim, that there is no substitute for experience,
holds true and has been taken to heart by Professional
Solutions and the Association of Consulting Engineers,
organisers of two one-day training seminars for engineers
being held this autumn.
Many expert witnesses have never given evidence in court.
Often disputes are settled before the case comes to trial,
and sometimes at the courtroom door. Those experts who
do have the experience usually develop their skills in
the courtroom itself, which can be a dangerously hit and
miss business. ‘Giving Expert Evidence’ is a
seminar designed to give engineering professionals a unique
opportunity to experience cross-examination in a training
environment.
Courtroom simulations
The seminar is conducted by barristers from a
well-known set of chambers that specialises in construction
disputes. They give the lectures and conduct the practical
workshops which are such a feature of the seminar. These
include realistic courtroom simulations in which expert
witnesses are cross-examined by counsel in the witness
box. Courtroom etiquette is observed throughout, and there
is a ‘judge’ to ensure fair play.
The role of the expert witness in such circumstances
is a demanding one, because not only must they undergo
cross-examination from experienced counsel, but they must
do so in front of their professional peers. Participants
are not thrown to the wolves, though. They are given ample
opportunity to study the case papers prior to the seminar
and are also briefed on the types of questions they are
likely to receive from opposing counsel. The object of
the exercise is not to make anyone look foolish but to
give those attending a flavour of what it is really
like to appear in court and to demonstrate the vital importance
of knowing your own and the other side’s material.
Arbitration hearings, too
A second workshop focuses on arbitration hearings.
It is preceded by a lecture on the investigative stage
and the differences in legal procedure. Engineers attending
the seminar are again called upon to appear as expert
witnesses, but this time in a simulation of arbitration
proceedings.
After both workshops, the participants are given a critical
analysis of their performance, highlighting the good points
as well as the areas that need attention.
A natural complement
The second seminar is a natural complement to
the first. Entitled ‘Forensic Report Writing for
Engineers’, it focuses on the vital role the expert’s
report plays in the legal process. A sound witness box
performance is often the culmination of a great deal of
hard work in preparing such a report, and no matter how
cool you are in court, you can be completely undone by
a carelessly worded paragraph. Moreover, the report can
have a major influence on the way in which the case is
conducted. Cross- examination will be based upon its content,
highlighting the importance of preparing a professional
report that accurately analyses the matters in dispute
in language appropriate to the proceedings.
A report writing specialist, a barrister and a solicitor
are the speakers at this seminar, and they each give their
individual insights into the demanding process of producing
the report and how it is used in court. They examine the
pitfalls and show how apparently commonsense assumptions
and statements may be ruled inadmissible. During the seminar
participants both review reports previously used in litigation
and produce report material themselves.
Accredited
Both these seminars are accredited by the major
engineering institutions and are essential for engineers
wishing to develop the necessary skills to improve their
opportunities in report writing and other litigation-related
assignments. They also offer engineers with some legal
experience the chance to polish their existing skills.
Budding expert witnesses should not go into the witness
box without some form of practical training if they are
to do themselves justice and not compromise the success
of their client’s action.
The potential for increased earnings in this burgeoning
field has never been greater, and the innovative engineering
practice should ensure that it has the necessary skills
to provide clients with this invaluable service. The only
way to be sure that those skills are of the highest standard
and will prove effective in either litigation or arbitration
proceedings is through planned professional training.
Stuart Gulleford
Professional Solutions & Services Ltd
Some courses on
offer this autumn
Courtroom procedures
Having successfully launched a new one-day course in courtroom
procedures, the Institute of Trading Standards Administration
will be running it again in Manchester on 20 September
and in London on 25 September. Both courses are open
to non-members and cost £199 + VAT.
The course covers both the role of the expert witness
and cross- examination, and it provides a thorough overview
of the preparation needed for that vital court appearance.
On successful completion students are awarded a competency
certificate.
Anyone interested in taking the course should ring the
Institute’s Courses Officer, Julia Davison, on 01702 559817,
or write to her at Itsa Ltd, 3–5 Hadleigh Business
Centre, 351 London Road, Hadleigh, Essex SS7 2BT.
For organisations that have more than 10 candidates, the
Institute can lay on in-house training. Further details
of this option can be obtained from the Institute’s
Training Officer, Mark Knight, on 01443 409299.
Doctors in the witness box
Another courtroom skills course to be repeated
this September is one designed specifically for medical
practitioners. It has been organised by the training company
Professional Solutions in conjunction with a well-known
set of chambers and takes place on 16 September in the
Great Hall of St Bartholomew’s Hospital. The
course, which features group workshops and realistic courtroom
simulations, costs £250 + VAT.
For further details and a registration form contact Janette
Gulleford on 0171 356 0838 or write to her at
Professional Solutions, Wheatsheaf House, 4 Carmelite
Street, London EC4Y 0BN; fax: 0171 356 0833.
And engineers
Professional Solutions is also arranging a one-day courtroom
skills course for engineers. Subtitled ‘How to Excel
and Enhance Your Reputation’, it, too, features courtroom
simulations and is described more fully in Stuart Gulleford’s
article in this issue. The course takes place in London
on 25 October and costs £165 + VAT.
Report writing
As we all know, many cases do not reach court until years
after the experts’ reports for them were written.
This makes it all the more important that those initial
reports were properly prepared and presented, otherwise
extra costs may be incurred and the outcome of the case
prejudiced.
In his article Stuart Gulleford describes a course that
is designed to help engineers polish their forensic report
writing skills. It is being given again this autumn on
21 November and costs £155 + VAT.
Professional Solutions is also running two courses this
autumn on ‘Report Writing for Occupational Health
Practitioners’. They are based on the same principles
as the one for engineers and are taking place in Manchester
on 31 October and in London on 20 November.
The cost in both cases is £155 + VAT, and further details
can be obtained from the company at the address given
or by telephoning 0171 356 0838.
Bond Solon Training
Of all the course providers, Bond Solon Training is the
one which over the years has acquired the highest profile
in the training of expert witnesses. In part this is because
it has been doing it for longer than the others, and in
part because it does nothing else.
In addition to providing short, intensive courses on
report writing and courtroom skills that are relevant
to the work of all expert witnesses, the firm lays on
Cross Examination Days to provide those who need –
or relish – it with more practice in that area. It
also arranges specialist courses in conjunction with the
Royal College of Nursing, organises day-long seminars
on making expert witness work pay and can provide firms
and individuals with in-house training tailored to their
particular requirements.
The one-day public courses that Bond Solon Training will
be running this autumn are as follows:
- Excellence in Report Writing14 October; 11 November
£345 + VAT
- Courtroom Skills Training15 October; 12 November £395
+ VAT
- The Cross Examination Day17 October; 15 November £395
+ VAT
- The Business of the Expert Witness11 October; 14 November
£235 + VAT
All these courses take place at the Royal Society of
Medicine, and further details may be requested from Rebecca
Reed on telephone 0171 925 0330, or by writing
to her at Bond Solon Training, 11 Haymarket, London
SW1Y 4BP (fax: 0171 925 1002).
Letters to the Editor
Experts’ meetings
Of all the topics raised in the Woolf Inquiry’s Issues
Paper on expert evidence, the one that elicited the biggest
response from readers of Your Witness was that
of experts’ meetings. MrJASargeant highlights a number
of ways in which the experts taking part in such meetings
can enhance their usefulness. He writes:
The meeting of experts ‘without prejudice’
is a much abused process, but it is one which can work
most effectively to reduce the cost of litigation. Here
are a few suggestions for making such meetings more productive.
1. The experts must distinguish between those matters
which are for them to decide, those that only their clients
can decide (such as whether to make or accept an ‘offer’
to compromise), and those which the court has to decide.
Unless authorised to deal with matters in the second category,
the experts should only seek to agree those in the first.
2. Unless the experts are absolutely agreed on the facts
on which their respective opinions are based, they should
agree the factual basis for each expert’s opinion
separately, as alternatives. (I often find that it is
possible to reach 99% agreement by adopting alternatives
in this way – ‘if A applies than our opinion
is Y’, ‘if B applies our opinion is Z’.)
The joint report may then be a matrix of agreements.
3. Similarly, it may be possible to agree alternative
outcomes dependent upon whether the court ultimately decides
‘A’ or ‘B’ on legal matters.
4. Never wait until the end of the meeting to record
your agreement. When any material fact or figure is agreed,
it should be recorded then and there, and all the experts
should sign to that effect. (I use a proforma which also
makes clear whether the agreement remains without prejudice
or not.) These records should only then require ‘tidying
up’ to become the joint report.
But perhaps the most important prerequisite for a successful
meeting is that the experts attending it should all have
done their homework, so that they come to the meeting
fully equipped to discuss in depth the issues that are
in dispute.
Once bitten
Mr N H Harris’s letter of protest in our
last issue (Your Witness 4, ‘How Not
to Treat an Expert Witness’) reminded Mr R D Wolstenholme
of some rough handling he experienced 15 years previously.
His anecdote shows that discourtesy towards expert witnesses
on the part of some judges is at least by no means a new
phenomenon. Mr Wolstenholme writes:
I suffered a similar experience in Bristol in 1981. I
was giving evidence in a property mis-description case
and my instructing solicitor, with whom I had a close
working relationship, was, for some reason or other, unable
to attend the three-day hearing.
Consequently, he handed me his file and suggested that
in these unusual circumstances, particularly bearing in
mind that I knew as much about the case as he did, I should
brief counsel.
Somewhat naively I agreed, and when I came to give my
evidence, the judge refused to accept it on the grounds
that I could not be both expert witness and briefing ‘solicitor’.
He then went on to give me a public dressing down and
to find the case in favour of the other party.
It was some while before I felt confident in undertaking
expert witness work again!
Unnecessary experts
Our summary of the Court of Appeal’s judgement in
Liddell -v- Middleton (Your Witness 4,
‘Court Report’) has prompted these reflections
from Mr Peter Sorton, himself an expert in road traffic
accident investigation. Mr Sorton writes:
This case is already being regularly referred to by Counsel
in cases where it is felt by one party or the other that
expert evidence is of little value or inadmissible.
In Liddell -v- Middleton the Court of Appeal criticised
the experts for both sides, but in particular the one
appearing on behalf of the plaintiff, who was foolish
enough to express a view as to liability and its apportionment.
In my opinion, the court’s strictures on that point
were entirely justified. It is a criticism, though, which
is much less likely to arise in criminal road traffic
cases. Whilst from time to time police accident investigators
may get their analysis wrong, they generally resist the
temptation to comment upon the evidence of witnesses of
fact. Furthermore, because a higher standard of proof
is required in criminal cases, the reports of accident
investigators tend to be less speculative than in civil
cases.
There can be no doubt, too, that it has become fashionable
to instruct expert witnesses in a variety of fields, and
no-one can reasonably argue that this has not led to increased
costs and delays. In road traffic cases, in particular,
it is my experience that solicitors instruct experts as
a matter of routine without considering whether reports
from them are necessary or will be of assistance. And
the experts, myself among them, being naturally keen to
make a living out of their specialist field normally accept
such instructions without question.
It is difficult to define exactly those cases which justify
reconstruction and those which do not. All experienced
expert witnesses must be aware that secondary evidence
of the kind they provide is unlikely to be preferred by
the courts to the evidence of witnesses of fact. Conversely,
in cases where there are no independent witnesses, or
where perhaps the two drivers can recall nothing of the
circumstances of the accident or sustain fatal injuries,
reconstruction evidence may be invaluable.
If the Court of Appeal decision in Liddell -v- Middleton
results in those instructing expert witnesses taking a
long hard look at the use of expert evidence in road traffic
cases, it must surely be of benefit all round. It would
be a great pity, though, if it led judges to dismiss out
of hand the calling of expert evidence in such cases without
really considering its probative value.
Dissatisfied indeed
In our last issue we printed a letter from Dr Audrey
Giles reporting dissatisfaction with the new Law Society
Directory of Expert Witnesses on the part of
a number of experts who had entries in it. She invited
readers to let her have their views as well (Your
Witness 4, ‘Can You Help?’) and tells
us that 16 of you responded. Dr Giles writes:
Of those who replied, 14 were deeply critical of the
mistakes which had been made in their entries in the index.
For the majority, mistakes had been made in indexing such
that clients would have specific difficulty in locating
them from the Directory. As a result, a significant number
of experts felt that their business would either receive
no benefit from their entry or, unhappily, suffer loss
of business.
Two practices did report a good response to their entries,
but both admitted that this was probably because their
practices were the only ones in their fields which had
been correctly indexed, their competitors having been
‘lost’ through indexing errors.
Some other interesting points arose from the correspondence:
- Dissatisfaction was felt by an extremely wide range
of experts – dentists, document examiners, architects,
surveyors, chemists and biologists. FT Law and Tax appear
to be comprehensively ill-informed.
- Many believe that although the Law Society’s
efforts to correct the errors in the 1997 Directory
are welcome, for many it will be too late since clients
may not wish to invest in such an expensive publication
after only 12 months. Accordingly, many will continue
to consult the erroneous 1996 version.
- There is widespread dissatisfaction that the members
of the Academy of Experts are required only to provide
one set of references whereas non-members are required
to provide new references every two years. Is this meant
to be a cost cutting exercise, or is the Law Society
naive enough to think that the Academy has a reasonable
vetting procedure?
The Law Society has invited me to share the results of
my survey with them, which I shall do. However, if anyone
has any additional comments regarding the Directory, please
contact me as soon as possible.
Finally, one expert’s comment was particularly apt:
‘There is no doubt that many lawyers look to the
Law Society for guidance and I think we are stuck with
this hopeless organisation to advertise our services’.
Dr Giles may be reached by telephone on (01494) 726784
or by fax on (01494) 724076. Her e-mail address is
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Book review
Limitations of Expert Evidence
Edited by Stephen Leadbeatter
(Royal College of Physicians, 1996, ISBN 1 86016 029 8,
price £9.50)
If you are acting as a casual expert witness, or considering
embarking on a career as an expert in your particular
field, then this book should be mandatory reading before
committing yourself to a case. For those used to giving
evidence as an expert, including those of us who have
made a career of this particular form of medical practice,
it would provide refreshing reassurance or timely terror,
depending on one’s standards, if re-read occasionally.
It is a small book of 10 chapters based on papers delivered
at a conference organised jointly by the Royal College
of Physicians and the Royal College of Pathologists. Any
lack of coherence to be expected from such a collection
is absent, almost certainly indicating the discipline
shown by each author in following a specific remit rather
than any formal collusion.
The book covers all the general aspects and pitfalls
of expert witness practice. Except for two chapters which
have specific connotations to medical or scientific practice,
it would be relevant to an expert in any field.
Limitations of Expert Evidence is thoroughly
worth reading at least once, but also worth keeping on
one’s book shelf.
Stephen P Robinson MB ChB DMJ
Your CV on file
– a new service
We introduced the Profile Service last year as a way of
providing solicitors with more detailed information about
the expert witnesses listed in the Register.
Since its introduction, the Service has proved very popular
with them. However, the number of experts who have lodged
a Profile with us has stuck at the 50% mark... despite
regular reminders!
We have been thinking hard about this ‘bottleneck’
and have concluded that the problem may lie with the format
of the Profile Sheet and the time it takes to prepare.
I am sure, though, that almost everybody in the Register
will have their CV available on disk. Furthermore, these
are much used by solicitors as well. As a new service
then to you and the solicitors who use the Register,
we have set up a system that allows us to store up to
four pages of CV text per expert, and this is in addition
to any Profile information that we may hold.
You will have to supply your CV on either an IBM PC or
Apple Mac diskette. The document can be saved in any of
the common word processor formats, or as plain ASCII text.
If you can’t supply your CV in this form then we
are able to offer a retyping service.
Once your CV is in our system we will be able to indicate
in the Register, and on the associated Expert
Search Program software, those experts for whom we hold
a CV. Copies can then be made freely available to solicitors
who ask for them.
Remember that your CV will be sent to any solicitor who
requests it. Please make sure that you have tailored the
contents so that it contains only that information appropriate
to your role as an expert witness.
Bearing in mind that I know you have a CV, and that it
will take you very little time to prepare it for submission
to us, I am hopeful that in the next edition of the Register,
edition 10 April 1997, virtually every entry will carry
the phrase, ‘CV available from the publisher’!
Chris Pamplin
A taxing problem
As you will know, experts who are VAT registered, or who
are employed by firms that are VAT registered, must include
the tax as a separate item in any bills they present.
It seems, though, that not everyone in the courts service
recognises the need to pay the VAT along with the main
charge.
A couple of months ago Mr Peter Phillips rang to tell
us that a determining officer at the Central Criminal
Court was refusing to authorise payment of the VAT element
of an allowances claim he had made for giving expert evidence
in a case heard at the Old Bailey. Mr Phillips wondered
what possible justification there could be for this. From
enquiries we made it soon appeared that it was an isssue
that crops up quite frequently. The Lord Chancellor’s
Department (LCD) assured us that as far as it was concerned
the VAT was payable, but that it was planning
to remind courts of this. The following item, numbered
B3211, duly appeared in the July 1996 issue of the LCD’s
circular, Court Business:
VAT on Witnesses and Interpreters’
Allowances
This item clarifies item B2243 (Nov 1991) with
regard to payment of VAT to companies which
employ a witness or interpreter.
A witness attending court to give expert or
professional evidence or an interpreter who
is entitled to costs from either Central Funds
for attending court or legal aid for preparatory
work may claim VAT if he, she or the company
which employs the witness or interpreter is
registered for VAT. This includes, where appropriate,
the recovery of any VAT included on an underlying
charge by, for example, a hotel or restaurant.
A record of the individual’s or company’s
VAT number should be endorsed on the voucher
or expense sheet.
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So there you are – chapter and verse for challenging
the determining officer’s decision should you ever
have the same experience as Mr Phillips.
Access to Justice
– The Final Report
Lord Woolf’s Final Report is as cogently argued as
the Interim Report that appeared last year. Moreover,
it is accompanied by a draft set of Civil Proceedings
Rules which are designed to give effect to many of his
recommendations. Taken together, the two Reports and the
draft Rules provide a blueprint for the most radical shake-up
that the legal system has experienced this century.
Aims
The main thrust of the Report’s proposals
has been extensively covered in the press. The proposals
are intended, above all, to curb delays, cut costs and
make it easier for individuals to enforce their rights.
Since no-one can dispute the desirability of these aims,
the Report has been generally welcomed by court users
of all kinds, ranging from consumer groups to the Bar
Council.
To achieve the aims, Lord Woolf advocates a less adversarial
approach to the settlement of disputes. Parties are enjoined
to co-operate more and to litigate only as a last resort.
And if they do come to court, he proposes that it should
be the judge and not the parties’ lawyers who controls
the pace and conduct of the proceedings. The end result
should be costs that are more predictable and proportionate
to the value and complexity of the case.
Implementation
All this will require substantial investment
in training judges for their case management role and
in equipping them and court officers with computers. Lord
Woolf considers that this can be paid for out of savings
to be made elsewhere in the system, but there is widespread
scepticism about that. What is clear is that the proposed
reforms are likely to be phased in over a number of years.
Thus, while the Lord Chancellor has indicated that he
will be introducing legislation this autumn to enable
new rules of court to be prepared, it is unlikely that
they could take effect before autumn 1998. It is by these
rules that Lord Woolf’s recommendations on procedural
matters will be implemented.
Expert evidence
This is not the place, and nor do we have the
room, to comment in detail on such a far-ranging package
of reforms as those proposed by Lord Woolf. It may be
of interest, though, to readers of Your Witness
to know to what extent he has modified his recommendations
concerning expert evidence.
In his Final Report the Master of the Rolls acknowledges
that the detailed proposals on the use of experts that
he made a year ago provoked more opposition than any of
his other recommendations. He notes in particular that
most of his respondents favoured retaining the full-scale
adversarial use of expert evidence and deplored any wider
use being made of single experts (whether court-appointed
or jointly appointed by the parties).
Single experts
Here Lord Woolf strongly defends his original
proposals, arguing that single experts should be used
‘wherever the case... is concerned with a substantially
established area of knowledge’. It is sufficient
that the single expert sets out his or her view of the
range of possible opinions for the needs of justice to
be met. We, on the other hand, are inclined to think that
even in ‘well established’ disciplines there
is still plenty of scope for the legitimate holding of
different opinions on the same set of circumstances, and
that it is unrealistic to expect a single expert to give
a balanced assessment of them all in their report. For
the parties to be satisfied that justice has been done
these differing opinions need to be aired in court and,
if necessary, tested by cross-examination.
Lord Woolf accepts that, given the strength of opposition
to the use of single experts, there is unlikely to be
a significant shift in that direction in the short term.
He recommends, though, that the new Rules make a presumption
in its favour. Under them the calling of expert evidence
would be entirely within the control of the court; in
exercising this control the court would be required to
restrict expert evidence ‘to that which is reasonably
required to resolve the proceedings justly’. Procedures
would be established to ensure that the parties to any
action, as well as the judge trying it, not only consider
whether a single expert might be appointed, but, if this
is not considered appropriate, state why not.
Legal privilege
Where Lord Woolf shows rather more flexibility
now than was evident a year ago is in his treatment of
legal privilege. In his Interim Report Lord Woolf argued
that once an expert had been instructed to prepare a report
for use in court any communication between the expert
and the client or his advisers should be made available
to the opposing side. The intention behind that proposal
was to prevent the suppression of opinions or factual
material that did not support the case being put forward
by the party instructing the expert. But Lord Woolf now
accepts that waiver of privilege is not the best way to
achieve this. Draft reports, then, and comment on them,
are to remain confidential.
On the other hand, Lord Woolf maintains that under the
new system, and especially in so-called ‘fast-track’
cases for which expert evidence would be limited to written
reports, it is essential for the parties and the judge
to know on what basis the experts for either side (or
even a single expert) have been instructed. Accordingly,
he now recommends that expert evidence should not be admissible
unless all written instructions are included as an annex
to the expert’s report along with a note of any oral
instructions received.
Other matters
Lord Woolf has also substantially modified another
proposal first aired in the Issues Paper circulated earlier
this year. It acknowledged that there was often a huge
imbalance of resources between claimants and defendants,
and suggested that one way of redressing this would be
to enable claimants to apply to the court for an order
requiring the defendant to provide an in-house expert’s
report on the matter in dispute. However, the idea was
opposed both by prospective defendants, who not unnaturally
regarded it as unfair, and by claimants’ representatives,
who questioned whether such a report could ever be regarded
as impartial and independent. In its place Lord Woolf
now recommends that the court should be granted a wider
power to order any examination or test it thinks fit,
and that it should be free to decide by whom they are
carried out and at whose expense.
Lastly, while commending in his Final Report the principle
that experts should have a basic understanding of the
legal system and their place within it, Lord Woolf has
evidently thought better of the idea floated in the Issues
Paper that there should be a compulsory system for training
and accreditation.
In essence, though, Lord Woolf’s recommendations
with regard to expert evidence are substantially unchanged
from what they were a year ago. Indeed, in his Final Report
he makes others that reinforce the one on single experts
that attracted the most criticism then and since. While
clearly he has listened to his critics, has he really
heeded what they have been telling him?
John Lord
Access to Justice
– recommendations concerning expert evidence
(recommendations from the Interim Report are reproduced
here in green text)
Role of the court
- The calling of expert evidence should be subject to
the complete control of the court.
- The court should have discretion, with or without
the agreement of the parties, to appoint an expert to
report or give evidence to the court.
- The court should have wide power to appoint assessors.
- The court should have a wide power, which could be
exercised before the start of proceedings, to order
that an examination or tests should be carried out in
relation to any matter in issue, and a report submitted
to the court.
Use of single experts
- As a general principle, single experts should be used
wherever the case (or the issue) is concerned with a
substantially established area of knowledge and where
it is not necessary for the court directly to sample
a range of opinions.
- Parties and procedural judges should always consider
whether a single expert could be appointed in a particular
case (or to deal with a particular issue); and, if this
is not considered appropriate, indicate why not.
Responsibilities of experts
- Experts should be given clear guidance that, when
preparing evidence or actually giving evidence to a
court, their first responsibility is to the court and
not their client.
- Where opposing experts are appointed they should adopt
a co-operative approach. Wherever possible this should
include a joint investigation and a single report, indicating
areas of disagreement which cannot be resolved.
Experts’ reports
- Any report prepared for the purposes of giving evidence
to a court should be addressed to the court.
- Such a report should end with a declaration that it
includes everything which the expert regards as being
relevant to the opinion which he has expressed in his
report and that he has drawnto the attention of the
court any matter which would affect the validity of
that opinion.
- Expert evidence should not be admissible unless all
written instructions (including letters subsequent upon
the original instructions) and a note of any oral instructions
are included as an annex to the expert’s report.
Meetings of experts
- If experts instructed by the parties meet at the direction
of the court, it should be unprofessional conduct for
an expert to be given or to accept instructions not
to reach agreement. If the experts cannot reach agreement
on an issue they should specify their reasons for being
unable to do so.
- Experts’ meetings should normally be held in
private. When the court directs a meeting, the parties
should be able to apply for any special arrangements
such as attendance by the parties’ legal advisers.
Codes and training
- Codes of practice providing guidance as to the practice
in relation to experts should be drawn up jointly by
the appropriate professional bodies representing the
experts and the legal profession.
- Training courses and published material should provide
expert witnesses with a basic understanding of the legal
system and their role within it, focusing on the expert’s
duty to the court, and enable them to present written
and oral evidence effectively. Training should not be
compulsory.
Medical evidence
- Unless the plaintiff is relying on the doctor by whom
he is being treated, the defendant should be told whom
the plaintiff intends to instruct and invited to make
any comments as to the proposed instructions.
- Before a doctor reports on behalf of a plaintiff or
a defendant, the opposing party should have the opportunity
to give instructions to that doctor.
- Every effort should be made by the court to avoid
doctors having to attend court, or if they have to attend
court, to reduce the inconvenience this involves. Video
technology should be used for this purpose.
‘Fast-track’ cases
In addition, Lord Woolf’s recommendations concerning
the so-called ‘fast-track’ procedure for claims
under £10,000 include a number on the use of expert evidence
that he regards as crucial to keeping the costs of such
actions proportionate to their value. They are:
- There should be no oral evidence from expert witnesses,
but parties will be able to put written questions to
experts.
- Where possible a single expert should be instructed.
Any relevant protocols should be observed.
- The court will have a residual power to appoint a
single expert.
- Where a party legitimately requires experts from more
than one discipline then they may be instructed, although
no more than two experts can be instructed without leave
of the court.
- Leave of the court will be required to instruct any
expert, other than a medical expert, in road traffic
accident cases.
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