Your Witness • Issue 13 • September 1998

Editorial
Legal aid and civil justice reform
New statutory right to interest
Court report
Traffic accident reporting... plc?
Forthcoming conferences
Letters to the Editor

Editorial
Welcome to the autumn issue of Your Witness. Inside you will find a report that will bring you up to date on the latest state of the Government’s plans for the overhaul of legal aid, and on its progress towards implementing Lord Woolf’s recommendations for the reform of civil procedures. I am particularly pleased to draw your attention to the article on traffic accident reporting by one of our readers, and hope that it may encourage others to follow suit.

Dr Bird’s contribution in our last issue produced a lively response from readers who have experienced similar delays in the payment of their invoices. If late payment of fees is a concern of yours, then the item on a forthcoming Act of Parliament should be of interest.

Web Register statistics
You may recall that in the December 1997 issue of Your Witness we announced the launch of our Web Register. At that time about one-third of you opted for your complete details to be made available in this unique on-line resource.

The Web Register works much like ESP, the software version of the printed Register. After specifying expertise and geographical search criteria, users receive back a list of identification numbers (which equate directly to numbers in the current edition of the printed book) of all experts who match the chosen search criteria. More detailed information on those experts who have agreed to be listed on-line can then be retrieved immediately.

I am pleased to report that the number of visitors to the site has been growing steadily over the past few months. In July we had some 500 visitors who conducted around 450 searches. From these searches, on average each expert was ‘found’ about 10 times, which is, I feel, very encouraging. Remember, though, that if you did not opt to have your details included on-line then the visitor would need to have the printed book to hand to know that they had ‘found’ you!

An information sheet about the Web Register is enclosed with this issue. If you are not currently listed on-line but would like to be added during our next monthly upload, please contact Kate Porter on (01638) 561590.

Is PI insurance still necessary?
The Court of Appeal decision in the Stanton -v- Callaghan case is also reported. It would appear to settle once and for all that expert witnesses are immune from suit for anything they may do, say or agree to during a court-ordered meeting of experts. One should be wary, though, of thinking that the decision relieves you of the need for professional indemnity cover for your expert witness activities.

The main advantage to an expert witness of having professional indemnity insurance has always been, and still remains, the assurance it provides that you will always have the means to defend your reputation in any action that may be brought against you, however frivolous, vexatious or misplaced. All too often clients look for someone to blame when their case is lost: if it is not their solicitor or counsel, then it could be their expert witness. Particularly disgruntled clients may even be tempted to sue. You could then be put to considerable expense instructing lawyers on your behalf, and face still more financial strain should the matter reach court – all regardless of the merits of the case against you. Furthermore, there is no guarantee that if the matter is resolved in your favour you will be able to recover all your legal costs. Insurance covers you against all such risks and expenses, although with the proviso that you allow the insurance company to handle the case on your behalf.

There are many suitable insurance products available, and since we launched the UK Register of Expert Witnesses own professional indemnity insurance scheme the costs of policies have come down to a point where they better reflect the true level of risk to the insurance market. If you would like more information about the Register product please contact Jonathan Thomas at Norwich & Peterborough Insurance Brokers – the brokers for the scheme – on (01223) 352421.

Battle of the Chancellors?
In my view the postponement of the withdrawal of legal aid for personal injury actions is to be welcomed. Whilst there has been little explanation offered by the Lord Chancellor’s Department (LCD) for the delay (except for the usual blandishments that the Lord Chancellor has been listening to his critics), one is left wondering about the possible causes.

In an idle moment one might wonder whether the Lord Chancellor is coming under growing pressure from other government departments, notably the Treasury and the DSS. It is well known that the net saving to the LCD’s budget of the withdrawal of legal aid from such cases is peanuts – around 35 million in a full year from a total spend of some 1,600 million. But what of the extra costs to the DSS of supporting accident victims rendered unable to obtain compensation for their injuries through the courts? Could it be that the Chancellor of the Exchequer has had a word in the shell-like ear of the Lord Chancellor?

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Legal aid and civil justice reform

A much needed respite
When the Lord Chancellor dropped his legal aid bombshell last October he also made it clear that he would be in a hurry to sweep away the debris. Legal aid was to be withdrawn from all personal injury actions from April this year, and as soon as possible thereafter from all other claims for money or damages. From the same month conditional fee agreements (CFAs) were to be permitted for all civil proceedings other than family cases. During the summer a White Paper was to be published setting out the Government’s proposals for those other changes that required primary legislation, and in the autumn this was to be followed by the Modernisation of Justice Bill to give effect to these proposals.

Well, April came and went without any changes in the availability of legal aid, and so far there has been no sign of a White Paper. True, a Statutory Instrument to extend the scope of CFAs was tabled before the summer recess, but it cannot come into force for a while yet. And for some months now there have been rumours that the promised Bill might not make it into the Government’s legislative programme for the coming session.

It was against this background of disarray that Lord Irvine announced in July that he would be delaying the withdrawal of legal aid from personal injury cases until at least October 1999. Another factor contributing to this decision may have been the threat of an action for judicial review had he gone ahead with his plans any sooner. Be that as it may, it has taken a lot of pressure off both the legal profession and the insurance industry. Solicitors now have the opportunity to develop techniques for assessing risk in undertaking such cases, while insurers have a welcome breathing space in which to devise and pilot a wider range of after-the-event legal expenses schemes. We may hope, too, that the delay will give lawyers more time to reflect on the dangers inherent in attempting to instruct expert witnesses on either a contingency fee or a conditional fee basis.

Civil justice reforms
It seems that a piecemeal approach is also to be expected in the long-awaited overhaul of civil procedure. Although the Lord Chancellor has reiterated his determination to have the new system up and running next April, a recent consultation paper from his department has indicated that the introduction of fixed costs for ‘fast-track’ cases – a key element in Lord Woolf’s proposals – might have to be postponed until other reforms have bedded-down, perhaps for several years. The paper also says that Lord Irvine is willing to consider exempting personal injury claims from the fixed-costs regime – which is extraordinary considering how large a proportion of ‘fast-track’ cases are expected to be of that kind. And if that were not enough to take on board, the Lord Chancellor’s Department (LCD) admits that the IT system on which judges will be relying to carry out their new case management functions will not be ready in time for the April 1999 start-up.

On the plus side, we now have a full set of the draft Civil Procedure Rules, issued in June on the LCD web site (www.open.gov.uk/lcd). Publication of the definitive Rules is promised for January 1999. In a House of Lords debate, Lord Woolf went so far as to say that the delay in installing the IT system might prove a blessing in disguise, in that there would be a considerable risk in attempting to implement the new Rules and new technology at the same time. Two years ago he was claiming that it would be a disaster if they were not. We can only hope that his current view proves correct.

More on protocols
We noted in our last issue that preparation was well advanced of the pre-action protocols recommended by Lord Woolf in his report on access to justice. Well, two drafts for two of them have now appeared, and we are assured that those for two more will be out shortly.

The intention behind pre-action protocols is to encourage greater openness between parties and, where possible, enable them to settle their disputes sooner. They aim to secure both objectives by standardising requirements and laying down a timetable for the steps that need to be taken before proceedings are issued. This should both facilitate and speed up the exchange of relevant information and, or so it is hoped, improve the prospects for disputes to be resolved other than by legal action.

The expectation is that the protocols will be incorporated in Practice Directions, and that these in turn will be bolstered by sanctions authorised under the new Civil Procedure Rules. It is likely that from April next year courts will have the power to penalise parties for non-compliance of protocols, either by refusing their applications for time extensions or by awarding, or disallowing, costs.

The drafts published in July are those of the protocols for personal injury claims and the resolution of clinical disputes, and the full texts of both are available from the LCD (telephone 0171 210 8512). We will be aiming to cover the next two drafts, which deal with road traffic accidents and the use of experts, in the December issue of Your Witness.

LAB rethink on medical negligence claims
As readers will know, the Government decided earlier this year that it would not, after all, withdraw legal aid from medical negligence claims – at least until such time as the insurance industry came up with after-the-event cover for them at affordable premiums. However, at the same time as he revealed this change of heart, the Lord Chancellor stipulated that only those solicitor firms that specialised in medical negligence claims should be allowed to conduct them on legal aid.

In May, the Legal Aid Board (LAB) announced that it intended implementing this instruction in January 1999, from which month legal aid for medical negligence claims would be made available only through the solicitor firms on the specialist medical negligence panels of the Law Society and the Association for Victims of Medical Accidents (AVMA). This provoked an uproar, with the Law Society insisting that in no way could 90 or so firms be expected to cope with the present volume of claims, let alone that to be expected in future.

The LAB evidently took account of the protests, because it has since announced that for the first 6 months of the new scheme all solicitor firms franchised for personal injury litigation can ‘hold themselves out as franchised’ for medical negligence cases as well. Temporarily, at least, this should increase the number of firms able to undertake such cases on legal aid to around 2,000.

Presumably the LAB is hoping that many more of these firms will apply for, and be granted, the new medical negligence franchise before the 6-month grace period is up. We can only hope so, because otherwise there is a real risk that the requirement imposed by the Lord Chancellor will reduce access to justice for many of the 11,000+ individuals who bring medical negligence claims each year.

Fewer civil actions
It is often claimed that as a nation we are becoming more litigious. Yet whatever else may be contributing to the congestion of the civil courts in England and Wales, and its attendant consequences of cost and delay, it is certainly not the number of actions commenced in them. Judicial statistics show that these have been falling for the past 6 years – during which time, on demographic grounds alone, they might have been expected to have increased by at least 2%. Moreover, the latest figures indicate an acceleration in this downward trend, with county court actions and Chancery Division proceedings commenced in 1997 both showing a 5% drop on the previous year, and writs and summonses from the Queen’s Bench Division recording an unprecedented fall of 15%.

Of course, the great majority of disputes are resolved without recourse to litigation, just as most litigation is settled before the parties reach court, and it is impossible to say whether judicial statistics accurately reflect the underlying situation. Insurance companies, in particular, would maintain that even though fewer writs are being issued, the number of claims they receive is rising all the time. Which prompts the interesting question, what is it that is preventing more of these claims resulting in litigation? Are more of them being settled or abandoned before that stage is reached? If the former, is it because the claims are better founded or because the companies reckon that the cost of fighting them outweighs any advantage that might accrue? Unfortunately, no-one seems to know; for while individual insurance companies no doubt keep records of this kind, industry-wide statistics are completely lacking.

Another possible explanation for the decrease in civil court activity is that potential litigants are resorting to other methods for settling their disputes, although so far the evidence for this is meagre. While it is undoubtedly true that greater use is being made of mediation, for example, that alone can account for only a small part of the decrease. It does seem likely, though, that alternative dispute resolution (ADR) methods will have greater impact in future, especially in relation to construction disputes.

Whatever the reasons for the current trend, it is clear that fewer cases mean less work for experts as expert witnesses. That alone should encourage more experts to explore the roles of arbitrator, adjudicator and mediator.

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New statutory right to interest
The Late Payment of Commercial Debts (Interest) Act comes into force on 1 November and in some circumstances it could prove a very useful means of applying pressure on solicitor firms to pay your fees more promptly. Just how soon you might be able to take advantage of its provisions, though, will depend on the size of the firm you are dealing with.

Hitherto, it has only been possible to claim interest on an overdue debt if provision for doing so was included in the contract or the debt was being pursued through the courts. Now recovery of interest has been made a statutory right of all businesses (whether sole proprietors, partnerships or companies) when other businesses pay their bills late.

Where the customer has accepted, either orally or in writing, a supplier’s credit terms, payment becomes ‘late’ as soon as the credit period expires. If no credit period has been agreed between them, the Act sets a default period of 30 days, after which interest becomes due. This default period starts running from the later of two actions: either delivery of the goods (or, in our case, performance of the service) or receipt by the customer of the supplier’s invoice. Special provisions apply to late settlement of advance or staged payments.

The Act also sets the rate to be used in calculating the interest due. It is defined as 8% above base rate, which at the time of writing amounts to 15%.

So much for the good news, now for the less good: the legislation is to be phased in over a period of 4 years. For the first 2 years, i.e. from 1 November 1998 to 31 October 2000, only ‘small’ businesses will be eligible to claim interest under the Act, and then only from ‘large’ businesses and public sector bodies (such as government departments and local authorities). Moreover, it will only be recoverable on debts incurred under contracts agreed after commencement of the Act.

Then from 1 November 2000 the Government plans that the statutory right should be extended to enable ‘small’ businesses to recover interest from other ‘small’ businesses, though again only on debts incurred under contracts agreed after that date. Finally, the Government hopes that from 1 November 2002 all businesses and public bodies will enjoy the right to recover interest on late payments of debts by other businesses or public bodies, regardless of size.

Clearly, the important issue here is what constitutes a ‘small’ business. The Act defines it as one that had 50 or fewer employees on average over the financial year prior to the year in which the contract was made. If the firm had more than 50 employees, it counts as ‘large’. ‘Employees’ means all paid staff including owners, partners and directors, with part-timers counted pro-rata. And how do you find out whether the firm from which you are hoping to recover statutory interest is ‘large’ or ‘small’? You ask. A firm that falsely claims to be ‘small’ to avoid having to pay statutory interest on its debts is liable to be prosecuted for fraud.

And what if a customer insists on writing into his or her contract a remedy for late payment that is less favourable than that provided under the Act? Well, the courts will have the power to strike it down. To prevent purchasers of goods or services abusing their power, the contractual remedy has to be ‘substantial’. If it is not, it will be void and the debtor will be unable to rely on it to defeat a claim for statutory interest. In determining whether a contractual remedy is sufficiently substantial, courts would have regard to all the circumstances, including the rate of interest payable and the length of the credit period. Should a court conclude that the contractual period is grossly overlong, it will have the power to replace it with the 30-day default period provided under the Act.

So there we have it then – a new weapon for use in the ongoing battle to get solicitors to pay their experts within a reasonable time frame. If you would like a free copy of the DTI’s User’s Guide to the new Act you can obtain one by telephoning 0870 150 2500. In addition, the Courts Service has produced a leaflet that explains how to make a claim for interest under the Act, and copies of this can be obtained from the Registry of your nearest county court.

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Court report

Immunity clarified
The Court of Appeal has now given its ruling in the matter of Stanton -v- Callaghan, the case discussed by John Lord in the article he wrote for Your Witness 11 on immunity from suit of expert witnesses.

Readers may recall that the case concerned a property that had suffered from subsidence damage. Partial underpinning had been carried out, but this was not successful and further subsidence occurred. The defendant, a structural engineer, was engaged by the owners to report on the problem, and he advised that the partial underpinning had been inappropriate. To restore the property to its full market value, total underpinning of the building would be required. On the strength of this advice the owners made a claim under their buildings policy which the insurers rejected. They then brought proceedings against the insurers, instructing the defendant as an expert witness.

The court ordered a pre-trial meeting of experts to identify the issues, and at this meeting the defendant, departing from his previous advice, agreed with the insurers’ expert that the existing partial underpinning could be restructured at much less cost. This agreement had an immediate impact, of course, on the value of the claim, so much so that when the insurers paid 16,000 into court, the owners felt constrained to accept it. When, however, they came to sell the property, they could get only 50,000 for it. The owners then brought proceedings against the expert and his firm alleging that he had been negligent and in breach of his contract with them. They contended that his initial advice had been correct all along and claimed as damages the difference between the full market value of the property had it been repaired (reckoned to be 105,000) and the amount they had been able to sell it for, due allowance being made for the sum recovered from the insurers.

At two previous hearings the engineer’s lawyers had applied to have the action struck out on the ground that, as a prospective witness, he was immune from suit in respect of any report on which his evidence would be based or any agreement summarising evidence he would have given at trial. In both instances, though, the application was refused, with the judge in the second of them ruling that it was at least arguable that the expert ought to have told his clients what he was intending to do before entering into an agreement which, in effect, abandoned a large part of their case.

The Court of Appeal has now allowed the expert’s appeal against the latter decision, and it is clear from reports of its judgment in the legal press that it did so on grounds of public policy. The Court stressed the importance for the administration of justice that trials took no longer than was necessary to do justice, and that to that end experts, whose overriding duty was to the court, were to be encouraged to identify in advance those parts of their evidence on which they were in agreement, and those on which they were not.

It further held that in the case in question the defendant’s reports had all been prepared for the principal, if not sole, purpose of his giving evidence in court, and that accordingly he was entitled to immunity from suit ‘to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice’.

In this the Court has evidently followed the reasoning adopted in another case referred to in John Lord’s article, namely Landall -v- Dennis Faulkner & Alsop, and its decision should clear up any remaining doubts on the matter. It is hard, though, not to feel some sympathy for the plaintiffs who, through no fault of their own, have suffered considerable financial loss as a result.

More criticism from the Patents Court
There have been several instances in recent years when judges trying cases in the Patents Court have criticised the quality of the expert evidence they have heard and the behaviour of the experts providing it. The forthright comments of Mr Justice Lightman in the case of Alan Clark -v- Associated Newspapers Ltd provide yet another example.

The action was one for ‘passing off’. During the summer of 1997 the Evening Standard published a series of articles under the heading ‘Alan Clark’s Secret Election Diary’ and, subsequently, ‘Alan Clark’s Secret Political Diary’, all of which were spoofs. The plaintiff alleged that the false attribution of the articles to him had caused him damage. Both sides called expert witnesses, and much of the time at trial was taken up with their cross-examination.

In the judge’s opinion, the expert evidence had been of very little assistance to him. Of three experts in particular he commented that either they had never seriously held the views expressed in their witness statements or they had experienced a conversion in the witness box on a par with that of St Paul on the road to Damascus.

One of the defendants’ experts was a former editor of The Observer newspaper. In his witness statement he had asserted, ‘There really is no such thing as bad publicity for generating demand... Anything [the plaintiff] does or is thought to have done, however disreputable to some, could in my view only add to his value and demand for his work.’

In cross-examination, though, the expert conceded that the position he had held was quite untenable: false attribution of authorship could be damaging, indeed a nightmare, for an author such as the plaintiff. In answer to a question from the judge about the passage just quoted, he admitted that the word ‘only’ should be deleted. As Mr Justice Lightman observed in his judgment, that small change, made as if it were a mere matter of drafting and of no practical significance, totally transformed this expert’s evidence from being wholly supportive of the defendants’ case to being (at best) neutral.

A contributory factor in this case was that the defendants’ solicitors neglected to provide their experts with copies of statements from the plaintiff’s witnesses which had been disclosed to them by the other side. These were to the effect that the witnesses had been misled by the Evening Standard’s column into believing that it had been written by the plaintiff. Mr Justice Lightman was of the view that had the experts seen these statements they would not have so lost touch with reality in the evidence they themselves gave, and the trial would have been over much sooner. He went on to say ‘measures need to be taken to enforce the recognition by experts (and the solicitors who instruct them) of their paramount duty at all times to assist the court: any duty or inclination to assist their clients must be subordinated to this overriding obligation.’

Perhaps we should now be adding another principle of expert evidence to the seven laid down by Mr Justice Cresswell in the Ikarian Reefer case, namely that solicitors owe a duty to the court to bring to the attention of the experts they have instructed any evidence, such as the other side’s witness statements, that might cause the experts to reassess or tone down the evidence they would otherwise give.

And lastly, a reminder about admissibility
Experts need to be aware that their evidence may not always count as expert evidence. For example, a professional person cannot be found to have breached his or her duty of skill and care unless expert evidence is adduced from persons of the same profession as the defendant as to the standard of care required in the particular case and the defendant’s failure to reach this standard. So held the Court of Appeal last December in the case of Sansom -v- Metcalfe Hambleton & Co., when it allowed the appeal of a chartered surveyor against the decision of a lower court which had found him liable in negligence on the evidence of a structural engineer. The Court of Appeal ruled that the engineer’s evidence did not qualify as expert evidence, as required under Section 3 of the Civil Evidence Act 1972.

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Traffic accident reporting... plc?
Mr M A Rickett asks whether it is time to consider privatising RTA reporting

Over the past 10 years I have noticed a steady and accelerating decline in the standard of police accident reports, and I believe that I am not alone in this. Police forces generally are taking less and less interest in reporting road traffic accidents unless they are fatal or have a special interest, and the ability of the average police officer to report an accident properly seems to be diminishing.

There are various reasons put forward for this decline. Usually, it is that the police are not obliged to obtain evidence for civil litigation, or that the resources do not stretch to traffic policing, other than ensuring the free flow of traffic. Officers themselves will say that it is the policy of ‘tenure’ which prevents them from remaining in a specialist branch more than a few years. They are then not trained to a very high standard, nor do they have time or enthusiasm to become experienced in that particular branch. Whatever the reasons, the fact is that many accidents, if fully reported at the time, would not require further investigation when at a later stage they become the subject of litigation.

At present, only the police may attend road traffic accidents to collect data at the scene. If it is too costly for them to be able to do this for minor accidents, why not charge insurers for the service? The money could then be recouped from the motorists when the matter is settled, either as a one-off payment or through increased premiums for a set term.

If, on the other hand, the police are unable or unwilling to provide a complete service, is it not time that legislation is introduced to enable other suitably experienced persons to do the job? Perhaps consideration should be given to the formation of a separate traffic service, organised along the lines of the AA or RAC, with the details of available staff kept on computer to facilitate their prompt dispatch to the scene. The police would then only be required to render such assistance as is necessary to enable the scene to be assessed and marked and the relevant evidence collected.

It is not possible in the space of a short article to deal with all the ramifications of a proposal such as this, but it should be possible to overcome any problems with it if the will to do so is there. I dare say that the biggest objection would come from the police themselves, being unwilling to relinquish any of their authority while at the same time unable to provide the complete service that the public in general, and the motoring public in particular, has a right to expect.

In my view it is high time that interested bodies, such the legal and insurance professions and the various institutes with investigators as members, sought a firm statement from the Association of Chief Police Officers as to what exactly the police are prepared to do to remedy this state of affairs. If it falls short of what is needed, further action should be taken to restore the situation to that in existence in the late 1950s when all accidents, whether they resulted in damage only or personal injury, were fully reported.

M A Rickett

M A Rickett has been an independent traffic accident investigator since 1988. Before then he served for 30 years in the Metropolitan Police, most of the time with its Traffic Division or training Traffic Division officers.

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Forthcoming conferences

Society of Expert Witnesses Conference
The Society will hold its AGM and conference on Friday 30 October at the Midland Hotel, Derby. The event will focus on practical issues for the expert witness and is designed to offer something for everyone, from beginner to seasoned veteran.

In the morning, Dr Brian Mahendra will speak on proactive report preparation and there will be a session led by Thomas Sands Training on practice development for experts. After lunch, Judge Adrian Head will discuss the proposed Civil Procedure Rules and their impact on the work of expert witnesses. Finally, trainers from Professional Solutions will present a mock cross-examination, offering tips on how to handle oneself in court.

The fee for experts in the Register is 75 + VAT. For more details call Vanessa on 0345 023014.

Bond Solon Conference
The annual Expert Witness Conference arranged by Bond Solon Training takes place a week later, on Friday 6 November. Once again, it is being held at Church House, Westminster and boasts an impressive line-up of speakers.

An innovation this year is the inclusion during the afternoon session of workshops led by specialists. Delegates will have the opportunity of discussing in them such varied topics as working with the CPS, meetings of experts in child protection cases, working in teams of experts, and taxation and the expert.

The cost of the conference is 135 + VAT, which includes a full sit-down lunch, refreshments both morning and afternoon, and a post-conference reception. To book a place, or for further details, call Bond Solon Training on Freefone 0800 731 2095.

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Letters to the Editor

Delayed payment of fees
Mrs Catherine Edwards BSc FRICS FSVA, John Chivers Commercial, writes:

I read with interest the letter from Dr Bird (Your Witness 12) concerning panels of experts and the delayed payment of fees.

I, too, have been in this situation with a firm of solicitors which has been running such a scheme for at least four years. When I joined its panel, the terms of payment were six months of date of invoice or on settlement of the case, whichever came sooner. Then the settlement period was extended to two years, which I refused to accept, stating that I felt six months was long enough. I have not received one instruction from the firm since then, although I used to write for it on average four reports a month. As you can imagine, this has somewhat thrown my estimates for the year!

I feel very strongly that expert witnesses should be totally impartial. Two years ago I lost some other work when I was asked by a firm of solicitors which acts solely for defendant insurance companies whether I would agree to work only for such defendants in future. I declined and, again, I have not been instructed by the firm since.

I wish that there was some way in which large firms of solicitors could be made to act more responsibly in these matters, but I fear that as they have the clout we will continue to see this kind of behaviour for many years to come.

Mr John Curtis MPhil AIPD FRSA, Charterhouse Partnership, writes:

We, too, have had approaches from solicitors asking us to wait for settlement of our fees until conclusion of the case, but without the bribe offered to Dr Bird of being included in a panel of kept experts. In most, though not all, cases the reason given has been that the solicitors themselves cannot get payment from legal expenses insurers who are funding the claim. In some others, the reasons have been either that the trade union which is funding the action will not pay until conclusion, or that plaintiffs funding themselves have no money to meet experts’ fees before their claims are settled.

What are we to do? Solicitors will be tempted to use experts who are most likely to fall in with their financial requirements, irrespective of which expert can best meet their need for a quality report. So far, we have accepted instructions on a deferred payment basis and quoted our usual tariff. In future, we are thinking of doing so only with an uplift on the fee.

Dr Duncan A Veasey BSc DPM MRCPsych writes:

I am becoming increasingly concerned by comments about fees and impartiality. I fear, too, that Dr Bird’s desire to have all experts behave in the same way is very much a forlorn hope.

There is a clear difference between the issue of contingency fees, where an expert might be said to have a direct financial interest in the result of litigation, and the matter which Dr Bird is commenting upon. I used to take the view that I would not get involved in delayed payments. However, as more of the larger companies which instruct me have had problems with the way legal expenses insurers deal with disbursements, I have agreed to them on request. I charge a premium for doing so, since I am in effect making a loan to whoever is funding the litigation, but I refuse to accept any arrangement which involves delays beyond a year.

This seems to me to be a wholly reasonable business arrangement, since it at least partly covers me for the inconvenience and cost involved in delayed fees. Moreover, I cannot see that any reasonable person would regard it as affecting my impartiality. Nobody is forcing me to take this line, and nobody is forcing the firms in question to accept my terms.

We appear to be in danger of adopting the position that experts cannot be impartial if they are being paid at all, since they might otherwise be said to have a financial interest in giving those instructing them the opinion they require in order to attract more work. I think, though, that most of us would agree we should be paid for our services.

I suspect that the courts may take more of an interest in experts’ fees in future. One senior solicitor from a firm which acts mainly for defendants in personal injury actions has pointed out that the insurance industry has its own ‘panel’ of experts. In my speciality, there are a number of experts who appear to be instructed solely by defendants and seem to find the most enormous difficulty in diagnosing any disorder at all in plaintiffs, even in the most extreme cases. It is rumoured that their fees are vastly higher than the sort of figures quoted in Your Witness, and it can only be a matter of time before the courts will need to consider whether their opinions are, in effect, being purchased.

Mr Maurice G Rogers BSc, Thermal Measurement Ltd, writes:

I was once kept waiting 3 years for payment of my fees in a case which was eventually settled out of court. The amount owed was, by my standards, large, and I found the solicitor who had instructed me quite intransigent about paying me sooner. I subsequently took the decision to turn down work unless it was agreed at the outset that payment was to be made within 30 days of invoice.

Recently, I made settlement within 30 days a condition of accepting instructions from a firm of solicitors in Kent. This was, after some hesitation, agreed verbally and I duly minuted it. When they failed to honour the agreement I took the matter up with the firm’s senior partner and a cheque was posted the very next day.

What was of more concern, however, was the fact that the solicitor handling the matter assumed that my report would support his client’s case, no matter what was involved. In fact, it was perfectly clear to me from the papers I had been sent that the dispute could in no way settle in their favour. The expert reports for the other party were perfectly clear and correct, and I would have forfeited all credibility had I sought to show otherwise.

The solicitor’s response was interesting: ‘We only asked you thinking that by accepting our commission you would naturally report in our favour.’ He needed such a report to bolster his case and assist him and his clients in winning the action.

The terms independent and expert are two that I cherish dearly and, come what may, I will never adjust or temper my conclusions to suit those who receive my invoices.

Mr J J Connors BSc CEng MIOA, J J Connors Acoustics, writes:

I have undertaken many instructions after prior approval by the Legal Aid Board (LAB) and have consequently suffered long delays in payment of my fees while the instructing solicitor ‘awaits payment from the LAB’. I have also been instructed in privately funded actions where the solicitors have deliberately delayed paying me until the case was resolved.

I made the decision some months ago that this was not acceptable. None of my non-legal clients work this way and, more importantly, neither do my suppliers. As a small business (which, let’s face it, most experts essentially are), cashflow is vital. On completion of a report, I expect prompt payment for a job well done.

For solicitors, the problem goes with the territory, since their work is not complete until the case is over. This can be months or years after my input. In private actions a solicitor would expect advance fees on account. Why should we experts be any different?

I still undertake LAB-funded work, but now include a condition in my quotations to the following effect: ‘We note that our fees for this project will be funded by Legal Aid. We consider our contract to be with yourselves, not the Legal Aid Board. Our payment terms are strictly 30 days from the date of invoice. We regret to advise that we will not accept late payment as a result of delays by the LAB.’

Your comments on the additional funding required by solicitors in the future are accepted, but, frankly, who cares? The problem is theirs, not ours. You mention that a ‘medium-sized firm could be requiring as much as 450,000... a year’, but do not mention that this is on a turnover of millions. In my opinion, it is up to the solicitors to make provision for this in the form of loans, overdrafts or reduced profit-taking, rather than rely upon the good grace (and creditworthiness) of their suppliers.

Comment
It is worth pointing out that, in legal aid cases, once a solicitor has been granted prior authority to incur the cost of instructing an expert witness, that solicitor is guaranteed reimbursement of the expert’s fees up to whatever ceiling figure the local area office sets. Furthermore, whether or not the solicitor has secured this authority, he or she may at any stage of the proceedings apply to the Legal Aid Board for a payment on account of disbursements (including experts’ fees) incurred or about to be incurred. It follows that in legal aid cases there is no need for instructing solicitors to carry the cost of experts’ fees until their own bills have been met, although unless they have taken the precaution of securing prior approval of that cost they do run the risk of having part of it disallowed on taxation.
Editor

Police co-operation
Mrs Kathleen Cox BA FBPsS CPsychol DClinHyp, Cox Associates, writes:

Referring to Dr Williams’s letter (Your Witness 11) and the way the police make expensive demands of him as an expert, we have had similar experience with regard to viewing videotaped evidence of interviews with children.

Following the Cleveland enquiry into how allegations of sexual abuse were handled, strenuous efforts are now made to interview children once, rather than repeatedly. We are often asked for our opinion on the reliability and validity of these interviews and the child’s responses. Because such tapes often contain sexually explicit material it is important they are kept confidential. Police forces vary considerably in their practices, some releasing the tapes to us under suitable safeguards and others absolutely refusing to do so.

In addition to the extra expense incurred in time and travel costs, requiring us to view tapes at the place where they are being held hampers our work in other ways. There is rarely time to view them more than once, yet it is difficult to give a confident opinion on the strength of a single viewing. Tapes vary in quality, and in some it may be hard to observe the expressions on the faces of the interviewer and interviewee. In such circumstances not one but several viewings of the cogent part will be necessary.

We have therefore not only encountered the same problem as Dr Williams, but have been obliged to give less good opinions because of it.

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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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