Your Witness • Issue 4 • June 1996

The Woolf Inquiry: your replies
The replies...
Profiles please
Court report
Tools of the trade
Read the context
To use, or not to use
How not to treat your expert
Can you help?
Society update

The Woolf Inquiry: your replies
Regular readers of Your Witness will recall that with the March issue of the newsletter they received a copy of an issue paper on expert evidence. It was one of six such papers dealing with aspects of the reforms proposed by Lord Woolf which the Lord Chancellor’s Department issued at the end of January and on which it was inviting comment from interested parties.

Six weeks had been allowed for this consultation exercise which, given the far-reaching importance of its subject matter, is an unusually short period of time. Indeed, it is a fair guess that many of those most crucially affected by Lord Woolf’s proposals on expert evidence, namely the experts themselves, might not even have heard of the exercise before the closing date of 11 March had we not circulated the issue paper to them.

Another matter which concerned us was that up to that stage the only expert witnesses whose views had been actively canvassed by the Inquiry Team were medical doctors. This was perhaps inevitable given the amount of attention Lord Woolf devoted to their problems in his Interim Report. On our reckoning, though, they are outnumbered at least two to one by experts in other fields, and it seemed to us at least desirable that the Department should have the benefit of comments from some of the others.

The Inquiry Team welcomed our suggestion that we reprint the issue paper, circulate copies of it with Your Witness and collate on their behalf the replies we received. In return, they agreed to postpone the closing date to the end of March. Even so, we could only allow our readers 10 days in which to respond to the issue paper, and in these circumstances it is commendable that so many of you found time to do so in great detail.

In the event, 55 readers sent in comments, 44 of them in time for us to be able to collate these for the Inquiry Team. Of the 44, 14 were engineers, seven were scientists, five were surveyors and seven were medical doctors.

All the replies received were duly forwarded to the Lord Chancellor’s Department, together with the report collating the comments they contained.As this ran to 22 pages, we can provide here only a summary of its findings (overleaf). We hope, though, that this will be of interest to the expert witness community at large. On its behalf, as well as ours, we would like to thank those of you who contributed to the exercise. Your efforts are also appreciated by the Inquiry Team, as can be judged from the letter reproduced here.

Chris Pamplin

Lord Chancellor’s Department
Selborne House
54–60 Victoria Street
London SW1E 6QW

3 April 1996

Dear Chris,

Thank you very much for your letter of 2 April and for the summary of the responses (and the responses themselves) to the expert evidence issue paper which you circulated to the experts in the UK Register of Expert Witnesses.

I am very grateful to you and to those who responded for all your work on behalf of Lord Woolf’s Inquiry. The summary, report and individual comments are extremely useful and will be of great help to us. Your response is particularly welcome because it represents the views of experts in a diverse range of specialities.

My grateful thanks again.

I Johnson, Woolf Inquiry Team

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The replies...

1. Court-appointed or neutral experts

  • Considerable doubts were expressed about the wisdom and practicality of this idea.
  • Many experts felt that because ‘grey areas’ exist, there was a real risk that justice would not be done if the court was to rely on just one interpretation of the facts at issue.
  • Many were sceptical of experts being appointed by professional bodies.

2. Narrowing issues between experts

  • The majority of respondents were in favour of more use being made of experts’ meetings.
  • Many suggestions were made for making such meetings more productive.
  • Only a minority had ever been instructed not to reach agreement, andall agreed that the practice was iniquitous and should be outlawed.
  • There was almost unanimous opposition to the use of cost sanctions to discourage over-long reports.

3. Impartiality of experts

  • There was a general welcome for the recommendations summarised in paragraph 18 of the issue paper.
  • The majority of respondents regardedthe removal of legal privilege as undesirable, and even counter-productive.

4. Improving the quality of reports

  • There was general acceptance of the need for more and better training in the skills required of expert witnesses.
  • However, few respondents thought training should be made compulsory or that trained and accredited experts should alone be permitted to appear before the courts or to prepare reports for their use.
  • First priority must be that experts are top-notch in their profession, and other requirements, however desirable, are secondary.
  • There are dangers in encouraging the development of the work of the expert witness as a new profession.

5. Widening the choice of experts

  • Many respondents pointed out that there was no lack of choice in their field.
  • Several considered that the real issue was the need to make more efficient use of the expertise already available.
  • It was suggested that legal advisers might be prepared to engage less senior experts if the court-appointed assessors chaired experts’ meetings.

6. Access to evidence: inequality of resources

  • Only a handful of experts responded to this section of the issue paper, but of those who did, several wondered whether the solution proposed (requiring the defendant to provide the claimant with an in-house expert’s view of the latter’s case) could work, seeing that the expert might not be impartial or might not be thought to be so.

7. Experts’ attendance at trial

  • Those respondents who were medical doctors confirmed the inconvenience suffered when required to attend court.
  • The non-medical experts, on the other hand, tended to regard court appearances as an inevitable, even advantageous, part of their job.
  • There were mixed views on the use of video technology, with several respondents expressing concern that expert evidence might not then be subjected to cross-examination.
  • There was general support for the improved timetabling of cases.
  • There were suggestions for penalising legal advisers who make last-minute settlements of their clients’ cases.

John Lord

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Profiles please
Our free profile information service to subscribers has been a great success. Solicitors certainly appreciate the extra information they receive from these summaries. We have had some complaints, though, that occasionally the profile sheets do not add significantly, if at all, to the Register entry. So please spare some time to think about your profile sheet. Is the information it contains useful and does it expand significantly on the information we already list in the Register?

If you have already submitted a profile but would like to amend it, please send in a completely new version for scanning into our database. If you have not yet supplied a profile but would like to do so, please post it to us as soon as possible.

For more details about what to include in your profile, see the enclosed A4 sheet.

Kate Porter

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Court report
Here is a further instalment of recent cases concerning expert witnesses. Both the judgements summarised here questioned whether the experts called had contributed anything to the trial but expense!

While delivering the judgement of the Court of Appeal in a road traffic case (Liddell -v- Middleton, July 7, 1995), Lord Justice Stuart-Smith deplored the tendency in recent years for parties in such cases to enlist the services of accident reconstruction specialists whether or not their evidence was really needed.

In the case under appeal, the judge trying it had needed to determine what had happened and to deduce from that where the negligence lay and whether it caused the accident. In some road traffic cases, expert evidence was necessary and desirable to assist the judge in reaching primary findings of fact (for example, where there had been no witnesses capable of describing what had happened or in providing information not available to a layman about the speed of a vehicle at the time of its accident). Experts were not entitled, though, to conclude from the statements of eye witnesses that the driver should have sounded his horn – and still less that his driving had been grossly negligent, as had happened in this case. Such matters were for the trial judge to decide, and the opinions of experts on them were entirely irrelevant and inadmissible.

Lord Justice Stuart-Smith went on to say that in road traffic cases it was the exception rather than the rule that experts should be required. If the plaintiff was legally aided, the Legal Aid Board should not authorise the employment of one without the opinion of counsel as to the necessity of expert evidence; and if the court took the view that expert evidence had been called unnecessarily, it could – and should – invite the taxing master to consider whether the cost of obtaining it had been reasonably incurred.

Last year Lord Justice Staughton was no less forthright while delivering the judgement of the Court of Appeal in Rawlinson -v- Westbrook and another. He noted that while the Rules of the Supreme Court allowed a judge to limit the number of experts who could be called, they did not permit the exclusion of such evidence altogether. As a result, courts were frequently treated to the spectacle of litigants rushing like lemmings to their doom by engaging experts unnecessarily.

In the case under appeal, there had been no need at all for the expert evidence that had been called, and the taxed costs were totally absurd. Both of the parties were chartered surveyors and could have given the relevant evidence themselves. Yet every litigant, or his solicitor, thought that he had to have at least one expert to give evidence for him. To save litigants from that folly, it was suggested that the Rules should be changed to enable courts to refuse to hear any expert evidence at trial.

John Lord

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Tools of the trade
Mr Harry Kenyon’s letter in our last issue has prompted replies from two readers, one in support of his views and the other not.

Dr Malcolm Salter writes:

‘I believe taxing masters are showing an extremely blinkered view in regard to modern technology. It is reasonable to expect expert witnesses to have certain tools for the trade. In my field of materials engineering I would regard a motor car, a camera and, indeed, a PC for preparing reports as coming into that category. The first of these is charged for at an effective depreciation rate upon generally agreed mileage figures. In other words, the tool for the trade is the car, but a charge for its use is acceptable to taxing masters. The other two items are covered by my daily consultancy rate.

In carrying out materials investigations it is possible to take a very tortuous classical route to solve a problem and to charge for this at the appropriate hourly rate, all of which would presumably be acceptable to a taxing master. However, I would much prefer to use state-of-the-art equipment, for both quicker turn round in report preparation and greater confidence in the results reported. Such equipment can cost as much as 300k, and I could not possibly justify laying out such sums. I would instead need to rent time on the equipment. Even so, its use should reduce the overall cost of the investigation.

The principle we are talking about is that of ‘quality assurance’, i.e. achieving the right result, in the right place, at the right time and at the most effective cost. Reliance on state-of-the-art technology in presenting expert evidence is bound to increase, but it is unlikely that many individual experts or small consultancies will ever be able to afford the purchase of the necessary equipment. In deciding whether or not to allow charges for its hire, what taxing masters should be considering above all else is whether use of the equipment has proved cost-effective.

I believe that the problem posed by Mr Kenyon needs clarifying, or expert witnesses will simply have to increase their daily rates to cover the extra expenses they will be incurring.’

Mr Robert Hill writes:

‘I was very surprised to read Mr Kenyon’s letter in the last issue of Your Witness. I am also a noise and vibration consultant, and the company that I work for charges clients in one of two ways. We charge either on a time basis, using an hourly rate that covers all our overheads including the capital cost of our instrumentation, or on the basis of a fixed price for a particular test or piece of work. In the latter case the fee would also be inclusive of the use of any instrumentation involved. We certainly do not regard it as ‘usual’ for the noise and vibration business to make an additional charge for the use of instrumentation. To do so smacks to us of deceiving the client into believing that he is being offered a particularly competitive rate and then hitting him with the hidden extras at the end.

The analogy with mileage charges for motor vehicles is a false one, because the ‘mileage charge’ is in effect a method of scaling the additional on-costs of travelling to a distant site. I also believe that the advice from the Association of Consulting Engineers to which Mr Kenyon refers raises other issues about how their standard salary multipliers have been formulated, but I am not familiar enough with that guidance to argue the case strongly.’

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Read the context
In our last issue we drew attention to a case in which the court allowed an expert witness to be cross-examined about evidence he had given in a previous, quite unrelated, hearing. In case you should ever be faced with such a situation, Mr R J Grogan has this advice to offer on how to tackle it. He writes:

‘The item under the heading ‘Court Report’ raises wider issues, particularly for anyone likely to be drawn into giving evidence (testimony) in the USA. In America, it is normal practice to require depositions to be taken before trial. The witness gives his evidence on oath in front of attorneys representing the various parties, and the proceedings are recorded – usually by shorthand and on tape, but increasingly on video as well. The depositions can then be produced as evidence at trial. If I interpret the system correctly, this procedure is designed to prevent ‘trial by ambush’. It also means that cross-examining counsel has access to a storehouse of evidence you have given in other cases.

During the course of a deposition, an expert witness is almost certain to be confronted by previous testimony he has given, usually taken from depositions, with the object of showing inconsistency. Wherever this happens, be it in the USA or in this country in similar circumstances to those which occurred in Leeds and London Estates -v- Paribas (No. 2), my advice is: ‘always insist on reading the full context’. This will inevitably cause delay, there will be cries of distress, bad temper, suggestions that you are impugning the honesty of cross-examining counsel, or that you must be singularly feeble-minded not to remember what you said on a previous occasion.

You will be accused of playing for time, but why not? Can you remember every case, every piece of evidence, all the details? Often I find that it is clear, and was only too clear to the questioner, that the apparently inconsistent evidence he was citing is not inconsistent at all, being related to different circumstances or conditions. It is all part of testing one’s credibility, and we should be prepared to meet the challenge and accept it as valid, providing we are alert to the pitfalls and refuse to accept everything at face value. But then as experts we never do, do we?’

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To use, or not to use
Since we introduced the facility in Spring 1995, more than 350 of you have ordered stickers of our logo or reproduced it on your stationery. Not everyone, though, who is listed in the UK Register of Expert Witnesses approves of the logo’s use in this way, Mr Graham Shellshear among them. He writes:

‘I am concerned about the use made of your logo in the letter headings of those who advertise their services as experts. I, too, have an entry in the Register which I have paid your firm to include. The only other requirement for inclusion was that I had to supply you with the name of a solicitor who might provide a reference for me.

J S Publications is not a ‘professional body’, and an entry in its Register does not mean that person is any better qualified as an expert in his or her particular field. Therefore a logo stating that one is ‘registered’ is neither a qualification nor a indication of excellence.

It is my view that reproduction of such information in a letter heading is liable to give the wrong impression, and I am concerned that someone who is not aware of the exact nature of your Register (and that includes many in the legal profession) might take the view that an expert who uses the logo in this way is better qualified than one who does not.

The fact that such a logo was produced in the first place is confirmation that experts are being encouraged to advertise their inclusion in the Register, but I can see no justification for the practice. I believe it to be inappropriate and could tend to devalue proper professional qualifications that have been truly earned.’

Mr Shellshear raises an important issue. Our own position has always been that inclusion of an entry in the UK Register of Expert Witnesses should not – indeed, cannot – be taken to imply anything about the standing, qualifications or competence of the expert concerned in his or her professional field. All that we do claim is that we have taken appropriate steps to check that applicants for inclusion have experience of acting as expert witnesses, and that at least one solicitor who has instructed them has confirmed to us in confidence that he or she would commend their use as such to other members of the legal profession. Only in these respects does the Register logo signify anything at all.

We would be glad to hear from other readers who have views on this subject or on the related one of accreditation of expert witnesses.

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How not to treat your expert
Mr N H Harris has sent us a copy of a letter he has written to the Lord Chancellor’s Department complaining of his treatment by the trial judge in a case for which he has now been subpoenaed to appear as an expert witness. We agree with him that the position taken by the judge runs directly counter to everything that Lord Woolf’s Inquiry seeks to achieve in improving the quality of civil justice in England and Wales, especially with regard to making better use of those medical specialists who are willing to act as expert witnesses. With MrHarris’s permission, we are reprinting here an edited version of his letter of protest, omitting of course the names of the parties, of the defendant’s solicitors and – for the time being at least – of the judge.

We would be interested to hear whether any of our other readers have been subjected to similar treatment as that experienced by MrHarris in this instance.

‘In October 1994 I was instructed as an orthopaedic expert by solicitors acting for the defendant in a highly complex case arising from an accident in 1985. Since then I have prepared two reports, arranged special investigations and attended a conference.

The case is due to come to trial in Liverpool this October.

On 17th April there was a hearing before the trial judge to fix the date for the trial, and shortly before this I advised my instructing solicitors of the days I was committed elsewhere. Despite this, the judge settled on 21st, 22nd and 23rd October, in full knowledge of the fact that I had previously agreed to attend a trial in Cambridge on those dates. He stated that the defendant would not be prejudiced by my non-attendance, but if his solicitors thought otherwise they should find another expert! They have now told me that they have no choice but to subpoena me, and that I must ask the solicitors in the other case to request a change of date for their trial.

I offer the following comments:

1. What is the point of providing unavailable dates if they are ignored?

2. I have no hesitation in saying that my evidence is of critical importance for deciding what is a very large claim. Surely instructing solicitors and counsel are the best judges of whether or not expert evidence assists their case.

3. It is ludicrous to suggest at this late stage that another expert be instructed. No-one of sufficient standing would be available to examine the plaintiff and prepare a report inside 6 months. Solicitors should not be told to change their chosen expert, and moreover one who has worked on the case for some time, just to suit the court’s timetable.

4. It is unreasonable for the court to put me in this impossible position, when I have given it prior notice of a commitment to attend a trial elsewhere.

5. We can all agree that delay and cost are important considerations, but they must not be allowed – as in this case – to override the interests of justice.

Lord Woolf, I know, is anxious to provide a climate whereby more senior doctors will be willing to act as expert witnesses, but the attitude adopted by the trial judge in the case I have instanced is guaranteed to have the opposite effect. When trial dates are fixed they must take account of the prior commitments expert witnesses have to attend court elsewhere. A delay of a few weeks until all of the experts are available should not disadvantage either of the parties, whereas contempt of the needs of expert witnesses, and of the contribution they can make in deciding the case, almost certainly will.’

Mr N H Harris FRCS
Consultant Orthopaedic Surgeon

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Can you help?

Are you dissatisfied as well?

Sir

The Law Society Directory of Expert Witnesses is an important publication in that by carrying the Law Society’s approval it appears to be a definitive statement of available expertise. However, I have encountered a considerable amount of dissatisfaction with this Directory from a number of sources. I should be grateful if anyone interested would write to me giving the following information:

1. Does the Directory list your expertise correctly and fully as you detailed in your copy to them?

2. Does your entry appear in the Directory in a position where your potential clients are likely to come across it when searching for your particular expertise?

3. Is there likely to be any impact on your business as a result of this Directory?

4. Will you subscribe to this publication in its current form at a future date?

Dr Audrey Giles
Manor Lodge, North Road
Chesham Bois, Amersham, Buckinghamshire, HP6 5NA

Information required pertaining to landfill sites and public health

Sir

We are most interested in hearing from anyone who may have pertinent information or specific knowledge about the health risks associated with residential proximity to domestic and industrial waste landfill sites.

If you can help, please contact Dr J Ousey telephone 01638 750828 or e-mail: ibell @cix.compulink.co.uk

Dr J Ousey
7 Danehill Cottages, Kennett, Newmarket, CB8 7QX

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Society update
In response to the letter from the Society of Expert Witnesses sent out with our last issue of Your Witness, the Society now has a founder membership in excess of 300.

For those who did respond to their request for support, please note that cheques will be cashed in the near future and VAT receipts issued. The unforseen delay was caused by ‘over-zealous’ officials at Company House. These have now been resolved and the Society will shortly be assigned its company number.

The Steering Committee thank all the founding members for their patience. The first Society newsletter will be sent to all founding members in June.

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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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