|
Your Witness •
Issue 15 • March 1999
Editorial
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 , as will
all new steps taken in cases already underway. The Rules,
together with their associated protocols and , 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 .
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 . 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 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?
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 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.
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.
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
.
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 . 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 .
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 ),
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 () 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.
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.
Information
2. 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.
Instructions
3. 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
4.1 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
5. 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.
Assessors
6.1 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.
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.
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.
Comment
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 .
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.
Comment
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?
Comment
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.
|
