Your Witness • Issue 5 • September 1996

Engineers in the box
Some courses on offer this autumn
Letters to the Editor
Book review
Your CV on file – a new service
A taxing problem
Access to Justice – The Final Report
Access to Justice – recommendations concerning expert evidence

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

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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.

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

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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).

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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 [email protected].

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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

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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

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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.

So there you are – chapter and verse for challenging the determining officer’s decision should you ever have the same experience as Mr Phillips.

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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.

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.

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

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