Your Witness • Issue 2 • December 1995

ESP to the search and rescue!
It’s getting draughty here!
Feedback
Witness in the dock?
Questionnaire update
Comment
Nota bene
Association update
What to charge?
Lord Woolf on expert witnesses

ESP to the search and rescue!
Imagine you are a solicitor who needs to instruct an Orthopaedic Surgeon in the South West. Naturally, you reach for your copy of the UK Register of Expert Witnesses! Whilst the printed Register lists many Orthopaedic Surgeons, it can be difficult to extract just those from a chosen part of the country and to quickly review their details. Because the book is ordered primarily by county and town, entries for Orthopaedic Surgeons will inevitably be scattered throughout. One solution would be for us to change the Register so that it lists experts by category. However, this would require endless duplication because most expert witnesses cover more than one discipline. For example, how would you categorise a diving medicine expert? We decided on a better solution – information technology.

The new UK Register of Expert Witnesses Expert Search Program, ESP, greatly reduces the time it takes for solicitors to locate suitable expert witnesses. At the touch of a button, ESP brings the power of electronic search and retrieval to help its users explore the comprehensive subject index of the Register in ways that are time consuming, or even impossible, with the printed index. With ESP, solicitors have the flexibility to decide their own subject search criteria and geographical coverage, and the capacity to locate and retrieve the relevant information almost instantaneously.

ESP is a simple Microsoft Windows™ application written by J S Publications specifically for the task of making the UK Register of Expert Witnesses more accessible – and you don’t need to be a Windows guru to master it! We have offered the software to all our current solicitor subscribers, and since the October trial release, ESP has been taken by more than 70 solicitors’ offices.

We are pleased to continue to improve the benefits to solicitors using the Register and are sure that this new innovation will ensure that many continue to see the UK Register of Expert Witnesses as the natural solution to the task of locating suitable expert witnesses.

As an expert witness listed in the Register, you will be able to buy a copy of ESP in the New Year. See the ordering information on yourdraft entry form which will be sent to you in early January.

Chris Pamplin

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It’s getting draughty here!
We are rapidly approaching the season of goodwill. Apart from indulging in too much food, drink and merriment, this is also the time of year that we here at J S Publications are busy preparing the draft entry documents that are sent out prior to each new edition of the Register. Although we know that you, too, are very busy, and we wouldn’t want to add unnecessarily to your workload, we feel that it is essential for you to review, and amend as necessary, the information that we publish about you in the Register.

So, when the draft of your entry for the 9th edition reaches you in the New Year, please spare a thought for the staff here who had to spend the run-up to Christmas getting it ready. With such a thought in mind, how could you possibly assign it to your pending tray!

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Feedback
The survey that we conducted earlier this year prompted a number of letters from expert witnesses on the subject of the late payment of fees. We have room here to print extracts from only two of them, but the points their writers make are representative of others we have received.

Mr David Griffiths writes:

... Without question, the subject of late payment of fees is the single major problem in my day-to-day work, and I am glad that somebody is at last paying attention to it.

I am in business as a sole practitioner and I receive instructions from about 150 firms of solicitors. Some, I must say, are extremely good and pay virtually by return of post; others, being the vast majority, do not! This problem is shared by all my professional colleagues who act for solicitors, some of whom seem to assume that the expert will be content to wait until the end of the case before being paid, which could be years away. They do not appear to have heard of the law of contract.

I know of one firm which is currently being sued for a substantial sum by a consortium of experts. I understand that part of its defence is that it is normal practice for experts to wait for payment!

Naturally, I do not want to lose business by pressing too hard. When I have been forced to do this, I have found that a threat of reporting the firm to the Law Society or taking County Court action usually produces results – but no more work.

I do quite a lot of Legal Aid work and find that the Board requires the fee to be quoted beforehand. I do not object to this, and some solicitors will obtain interim payment. However, I suspect that others gather the money and, effectively, invest it for their own benefit.

I regard the general attitude of some solicitors to be deplorable, and the sooner legislation on the subject is introduced the better. I often find that less effort is required to deal with the original instructions than to extract payment...

Mr David Royle writes:

... I don’t seem to have the same problem with fee payments for my ordinary, non-legal work, where I have to say clients pay up fairly promptly. No, the trouble with fee payment for expert evidence work invariably lies with the instructing solicitors. I have done a rough check on payment performance and it comes out as shown in the table.

As far as privately funded work is concerned, the problem is that I can’t get at the client himself – it has to be through the instructing solicitor. Far too often the solicitor does nothing to chase up payment from the client, and indeed is understandably wary of upsetting him. That doesn’t help me. Very occasionally a solicitor will obtain funds from the client in advance, but these are usually for the smaller jobs.

Legally aided work is a horror on its own, but I am now very familiar with the system and will, if necessary, contact the area Legal Aid office and find out for myself the position on payment. As this invariably prompts the Legal Aid office to contact the solicitor, it usually galvanises him into action, but it does absolutely nothing for goodwill between us!

With all Legal Aid work, I have to quote my fee beforehand, or in exceptional circumstances the rate at which it will be charged (but with a ceiling), and this has to be approved by the Legal Aid office before I start work. I know that Legal Aid offices are authorised to pay out experts’ fees by way of interim payment/disbursement on receipt of application from instructing solicitors. In almost all Legal Aid offices around the country, I have found that they will make such payments within 21 days of receiving the request, and sometimes within 14 days. The London offices take slightly longer, but otherwise if a solicitor submitted our account when we render it to him, we should get payment within three or four weeks, which with Legal Aid matters is acceptable.

Again, the trouble with solicitors – some of which I can understand, although it is still unacceptable – is that (a) they take ages to send the bill to the Legal Aid office in the first place (with all sorts of excuses about waiting for the right time to gather in bills from various directions to submit ‘logically’ at the same time), and (b) they then hand it over to their accounts departments, which will most certainly hang on to the Board’s money for as long as possible.

I have had two cases recently where I found out from the local Legal Aid office that cheques covering my fee had been paid to the instructing solicitors, respectively, three and four weeks previously. If I hadn’t chased them up myself with the Legal Aid office, which immediately got on to the solicitors concerned, I would presumably still be waiting for payment.

Although I have complained about solicitors in this matter, it has to be remembered that they are the people from whom instructions are received. There has to be a balance between normal efficient credit control and not putting the backs up of potential clients. Any suggestions you or other experts may have for achieving a better balance than there is now will most certainly be welcomed.

  Prompt payment
i.e. within 28 days
Delayed payment
i.e. over 28 days*
Private/individual clients 80% 20%
Insurance companies 100%
Solicitors    
privately funded cases 40% 60%
legally aided cases 20% 80%
     
(*usually much later and requiring aggressive chasing up)

Solicitors frequently blame the Legal Aid Board for delays in settling experts’ invoices, despite the fact that, as David Royle points out, they are well able to apply to it for a payment on account. Some expert witnesses stipulate in their Terms of Engagement that the instructing solicitor will make such an application, but of course there is no way of checking that this has been done – or, indeed, that the payment has been made – short of telephoning the local Area Office and making a fuss about it. In my view, it would be a great help all round if the Legal Aid Board was to establish a routine whereby expert witnesses are informed whenever interim applications are made to pay their fees, and I am pursuing this with the Board’s HQ in London. I will be reporting on the outcome in the next issue of Your Witness.

Chris Pamplin

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Witness in the dock?
On a lighter note, Captain Eric Beetham has passed on the following anecdote:

‘At an arbitration held in a church hall we had three tables pushed together into a ‘U’ shape, the witness seat being placed in the open part of the U. The church cleaner made the tea and brought it into the arbitration. On the first occasion an expert witness was sat in the witness seat, this delightful lady asked, "Does the prisoner get a cup?"’

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Questionnaire update
The article I wrote for the last issue of Your Witness analysed the replies from 451 of the experts J S Publications had questionnaired in May this year. Since then, a further 341 experts have returned forms to us, and these fully bear out the conclusions I came to in September.

As with the earlier group, the great majority of those responding in the second wave were highly experienced expert witnesses, although overall only one in six would describe such work as their principal activity. Also as before, 82% of them foresaw their involvement in expert witness work increasing in coming years.

On the other hand, an even greater proportion of the new respondents – 72% instead of 68% – admitted to not having a standard form of contract for use when accepting instructions from solicitors, and 45% of them do not even state by when they require their fees to be paid, compared with 41% of the earlier group. In such circumstances, it is perhaps not surprising that the experts in this second group also appear to fare less well when it comes to being paid, with 48% of them reporting that solicitors settled their bills on time in less than one case in four.

John Lord

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Comment
It was interesting to hear Roger Ter Haar QC speaking on the issue of expert witness liability at the Bond Solon Conference in October. It was clear from his contribution that the issue is very complicated. The central role of the expert witness, that of providing an expert opinion in court, is protected: you cannot be sued as a result of anything you say in the witness box. The liability risks all derive from the work you do beforehand, such as the assistance you give your client in establishing the facts and assessing the merits of the case, and any reports you write under instruction. In general, the closer you are to the day of the trial, the ‘safer’ you become!

The number of cases in which an expert witness is actually sued is very small. This reflects in part the protection the courts extend to the expert witness. In Evans v. London Hospital Medical College [1981] 1 W.L.R. 184, the scope of immunity to civil action arising out of negligence, if the act was part of the criminal investigation, was said to cover ‘the collection and analysis of material relevant to the offence or possible offence under investigation... not... merely... the preparation of the witness’s formal statement or proof of evidence.’

Obviously you are an assiduous expert not prone to making mistakes. Taken together with the immunity cited above, one might be tempted to consider the risk so slight that the issue of liability can be safely consigned to the ‘highly improbable’ tray and forgotten.

Unfortunately, I cannot agree. Lord Woolf’s report contains figures on the costs of cases compared with the value of the claims being made. Of interest to us here is that the average cost in the survey is a staggering 24,221. I think many expert witnesses would find it impossible to find the funds to defend themselves in a negligence claim, regardless of the merits of the action brought against them.

Finally, beware of thinking that you are already covered by your existing professional indemnity insurance policy. If you have not specifically disclosed your expert witness work, many insurers would reject a claim arising out of it on the basis that such work constituted a material fact about which they should have been given prior notice.

Very little data exist on how many expert witnesses currently have professional indemnity insurance arranged specifically to cover their expert witness activities. I would be pleased to hear what cover you have, and through which insurer, so that we can compile a report on the current situation for a future issue.

Chris Pamplin

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Nota bene
Thanks to all those who contributed Nota Bene after we introduced them in the first issue of Your Witness. However, we want to compile sufficient to allow us to run the service for at least 12 months. If you can offer a contribution, it will take us that much closer to being able to launch this novel and useful service.

The Nota Bene project is just one of the ways we enhance the service offered by the Register – both to you as a listed expert witness and to the many solicitors who use the Register. It will involve circulating to litigation lawyers vital kernels of information on familiar topics which may be useful to them when considering how to approach a particular case, but which would be difficult for them to come by without first referring to specialist or technical publications. The best sort of Nota Bene will alert the solicitor to a particular aspect of a case which might not be immediately obvious but which could be the one on which the result turns.

The information will be distributed in the form of cards, which we plan to mail to our subscribers at regular intervals. The general form of the card can be gauged from the fictitious mock-up shown alongside, each ‘note’ being between 20 and 50 words long.

If you feel able to contribute to this project, please send or fax your Nota Bene to J S Publications marked for my attention. The solicitors stand to benefit from the information you provide, as a contributor you would benefit from having your name and Register number shown on the card, and we both benefit from the increased market awareness of the Register that the distribution of the cards will engender.

Chris Pamplin

Card 1

Drink Driving

  • The Intoximeter is designed to recognise and compensate for acetone in the breath, which absorbs light at the same frequency as alcohol. However, methane, which demonstrates the same absorption pattern, is far more commonly present in breath and is not recognised by the equipment.
    Dr John Smith PhD FRCPath CChem No.123

  • The Intoximeter is only an approved instrument if it is functioning correctly. However, functioning correctly covers the entire machine. If the clock, which plays no part in the analysis, is wrong, then the machine ceases to be an approved instrument and its evidence is not admissible.
    Dr Susan Jackson PhD MCB CChem No.789

  • The Intoximeter readings can be challenged on the basis that the readings are too different. How different? Government scientists say that a 20% difference is acceptable because the equipment is measuring two different breath samples. However, the new Intoximeter aborts the analysis if the readings are more than 15% apart.
    Dr John Jones PhD FIBiol No.456

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Association update
The total number of those replying to our questionnaire who have expressed an interest in joining an association for expert witnesses has now topped the 500 mark, with 230 of them indicating that they would be willing to play an active role in its affairs. Of these 230, 40 indicated that they were very keen to be involved in its formation, and they have been invited to a meeting this month with a view to establishing a Steering Committee charged with bringing the association into being. We will be reporting on the outcome of this meeting in the next issue.

Kate Porter

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What to charge?
At their Expert Witness Conference in October, Bond Solon distributed the results of a survey they had carried out into the fees charged by experts attending courses the firm had run this year. It showed that a tremendous variation exists in charges, even by specialists in the same field. Nevertheless, the survey gives a fair idea of the going rate for most disciplines.

An intriguing finding of the survey is that a surprising number of experts charge the same hourly rates for attendance in court as they do for writing reports. Perhaps predictably, it is accountants who on average charge the most for both. The survey also reveals that 55% of respondents had no standard terms of engagement under which they agreed to take on expert witness work – which bears out one of the more alarming findings of the survey we conducted last May.

John Lord

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Lord Woolf on expert witnesses
The remit of the inquiry being undertaken by Lord Woolf is to review the rules and procedures of the civil courts of England & Wales with the aim of improving access to justice and reducing the cost of litigation. In his interim report, published in June, Lord Woolf sets out a broad agenda for change and makes recommendations as to how this should be acheived.

Lord Woolf identifies a number of key problems – principally cost, delay and complexity. In his view these problems persist, despite all previous attempts to deal with them, because of the excessively adversarial culture of civil litigation in this country. He concludes that there is little chance of any comprehensive reform of the present system succeeding so long as the management of each case is left to the parties concerned, and he advocates that this control should in future be exercised by the courts. This would bring about fundamental changes in the present, partisan use of expert witnesses.

Although Lord Woolf devotes only one of the 27 chapters of his report to experts, it is his recommendations concerning their use which have provoked the most controversy. With the overall aim of encouraging a more cooperative approach on the part of litigants and reducing the area of conflict between them, he proposes that:

  • it should be for the judge to identify the key issues in dispute and decide what expert evidence will be needed to help decide them
  • the judge should also have the power, with or without the agreement of the parties, to appoint a court expert to report or give evidence on these issues
  • greater use should be made by the courts of the existing power to appoint assessors to help judges decide cases, and these assessors might also preside over meetings of experts
  • experts instructed by one or other of the parties should be given clear guidance that their first responsibility is to the court and not to the party that engaged them
  • an expert’s report should be addressed to the court, contain everything the expert regards as relevant to the opinion he/she has expressed and draw attention to any matter which might affect the validity of that opinion
  • should experts be required to meet at the direction of the court, it would be unprofessional conduct for an expert to be given – or to accept – instructions not to reach agreement
  • once an expert has been instructed to prepare a report for the use of the court, any communication between him and the client or the client’s advisers should no longer be the subject of legal privilege.

In addition to these general recommendations, Lord Woolf also makes a number of detailed proposals concerning medical specialists which are principally designed to reduce the delays and costs involved in PI cases.

At this stage it is difficult to predict how soon, and to what extent, Lord Woolf’s proposals will be implemented. He envisages producing two more reports before the Inquiry is finished, and it is rumoured that he is already re-considering some of the proposals made in the first. For example, strong doubts have been expressed as to whether having court-appointed experts would in fact reduce the cost of litigation, given that in many cases the parties themselves would still need expert advice on the strengths and weaknesses of the technical facts in issue to decide how best to proceed. In addition, many litigation lawyers have expressed concern about the proposed loss of legal privilege in communications with the experts they have instructed. What is quite clear, though, is that the days of the combative approach to litigation are numbered, that the courts are set to take greater control of the litigation process and that new roles for expert witnesses are likely to emerge.

Watch this space!

John Lord

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Disclaimer
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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