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... the expert’s forum for discussion and information dissemination

Your Witness is the quarterly newsletter of the . Starting with Issue 16, Your Witness is available in Adobe Acrobat format. If you do not have Acrobat, you can download the free Acrobat Reader software.

Issue 93, September 2018
  • Regrettable politicisation of the justice system - the cost-driven assault on the justice system continues
  • Experts on the carpet - fair process suggested before the court can criticise an expert
  • New guidance published for paediatric experts witnesses
  • Whiplash claims – role of expert witnesses in combating fraud
  • Revision to Criminal Procedure Rules for expert reports
Member only access
Issue 92, June 2018
  • GDPR Thoughts: Data Audits, Privacy Notices and Controller or Processor
  • Complex disclosure requirements in cases that involve massive amounts of electronic documents are an opportunity for expert witnesses
  • Does an expert witness's breach of duty in a criminal case render the conviction unsafe?
  • Beware of receiving unsolicited information about a case you have no dealings with - someone might be engaging in a dirty tricks campaign!
  • GDPR - the vital exemption all experts should know
  • GDPR - Legitimate interest may be a better legal basis than consent
  • GDPR - What happens to the Data Protection Act now GDPR is in force?
Member only access
Issue 91, March 2018
  • GDPR brief
  • When litigation involves sensitive commercial information, trade secrets or valuable scientific research, it poses particular problems with expert confidentiality
  • Dressing up fact as opinion can backfire
  • Are experts distinct from ‘the team’ when cost orders are involved?
  • There is a heavy burden on a party looking to change expert late in the day which, save in exceptional circumstances, will be difficult to discharge
Member only access
Issue 90, December 2017
The recently introduced Pre-Action Protocol for Debt Claims appears to set up a Prevaricator’s Charter that makes securing overdue payment potentially more long winded. What can you do to minimise its impact on your cashflow? We also consider the coming into force in May 2018 of the new General Data Protection Regulation. While most experts are only minor data processors, many deal with very sensitive data so they will not be immune. How do you need to proceed? We end with the somewhat odd notion of the anonymous expert witness. What are the circumstances under which ‘the secret expert’ can exist? Also inside, we regret the Beeching-like dismantling of the legal aid system, one of the key reasons that debt claims now need their own Protocol, and we consider how best to deal with criticism in earlier proceedings of an expert’s work. Often very unfair, is there anything an expert can do to minimise the impact on credibility?
Member only access
Issue 89, September 2017
In this issue we take a look at whether the report of an expert who is no longer able to act for a party has to be disclosed as a necessary condition of the party being able to appoint a new expert. It has become increasingly viewed as a requirement to be imposed by the court, but is that true? We also publish the results of our latest expert witness survey. If you are keen to know how others view the expert witness scene, including summary statistics on charging rates, this is the article for you. We ask can evidence an expert has studied in one case be reused if the expert is subsequently instructed in another action flowing from the same incident? What if the new instructing solicitor does not even know of existence of the evidence? We unpick the distinction between expert evidence that is opinion and that which is factual. The distinction may, at first glance, appear to be fairly academic, but there are some quite important consequences that flow from these different elements of the expert’s evidence. If forced to sue for your fee, we urge you to be careful who you sue - if you get the name wrong you could be on a sticky wicket. And finally we offer some words of caution to experts who undertake pro bono work for lawyers. Such commendable social justice instincts can backfire!
Member only access
Issue 88, June 2017
Brexit remains a hot topic as Article 50 is finally triggered and the UK wheels like a slow dreadnought at the Battle of Jutland to face what is fast becoming the Grand Fleet of a belligerent European antagonist. While that manoeuvring takes place, we use the opportunity to look at what will be involved in disentangling the Gordian Knot that is EU law in the UK. Confidentiality relating to proceedings held in open court is seldom contentious because all documentation and judgments will generally be in the public domain. The same is not true of arbitration. With an increasing number of experts acting in such cases, it is worth reviewing the current position regarding confidentiality rights and obligations in arbitration. An over-eager judge stars in our case report from the Court of Appeal. The judge got so involved that he began to answer the questions that had been put to the expert by counsel in cross-examination! The question asked is: Did this have an impact on the safety of his final judgement? The justice system is keen to get us all in the hot-tub together - whether we want to or not! Our article looks at the benefits of hot-tubbing and what is holding things up. And finally, we ponder the proper response should you end up being approached by both sides in a case.
Member only access
Issue 87, March 2017
Expert witnesses are busy people and have to juggle their available time as best they can. The courts, too, with increasingly overstretched resources, must endeavour to manage court time as efficiently as possible. But, what would you do if you found yourself warned for a whole 3 months! We consider the issue of trial windows, trial dates and how the witness summons can become a very blunt tool. Also inside this issue we report on an interesting side issue that arose in the Dr Squier case about whether disciplinary tribunals can refer to earlier trials in which the expert was criticised by the judge. Being instructed in a case when you have a connection with one of the parties needs to be handled with great care and openness. We discuss a recent case in which the expert fell down badly in this respect and stress the importance of early action to highlight any connection. It is a common enough experience for experts in the witness box to find the barrister ‘playing the man’ when they realise they have no way to undermine the evidence itself. It is, therefore, refreshing to hear that one judge, at least, has had more than enough of it.
Member only access
Issue 86, December 2016
Publicly confronting dogma is a risky business that can have long-lasting consequences. The situation of Dr Squier is a case in point, an expert who challenged professional dogma on ‘shaken baby syndrome’ and has spent the past year or two defending herself in professional disciplinary proceedings. Apart from the revealing light her case casts on the GMC’s (in)ability to conduct its business effectively, it holds important lessons for any expert who believes professional conventional wisdom needs to be confronted. Also inside this issue we look at how you can deal with appeals from your instructing lawyer to change your report. While some such requests are perfectly valid, others are most certainly not. A growing market for medical experts is requests from employers for a medical report on an employee (or potential employee), we look at what issues this raises for the expert. A recent decision of Birmingham County Court has suggested that in some circumstances the court can order the disclosure of items such as draft documents, and even a solicitor’s attendance note of conversations with experts! If this principle is correct, it will ring alarm bells for experts and lawyers alike. Finally we responsed to a couple of helpline questions on instructions that suddenly involve a litigant in person, and on dealing with requests to defer billing for extended periods.
Member only access
Issue 85, September 2016
In this issue we look at what awaits the expert witness in Brexit Britain. It’s early days, but the likelihood is that after the huge task of extraction is completed not much will have changed! We examine a case in which the medical expert got his role comprehensively wrong, and subsequently suffered at the hands of the GMC. Despite the furore caused by the publication in 2012 of a report by psychologist Jane Ireland, Evaluating Expert Witness Psychological Reports: Exploring Quality, the matter has come full circle. We recap events from 2012 before looking at recent developments at the Health and Care Professions Council as it exonerates Professor Ireland at a hearing in the summer. From time to time we become aware of articles written by expert members of the UK Register of Expert Witnesses. In this issue, we carry such a piece penned by retail fraud expert Richard Emery, in which he considers some of the problems in the way public funding is being used in the criminal courts. We round up with a quick look at some topical news.
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Issue 84, June 2016
In this issue we look at a new complication for experts who undertake work for litigants in person – consumer law! Are you ready for on- and off-premises contracts and cancellation rights? We set out everything you need to know. We also investigate an interesting issue that arose when the police came knocking on an expert's door asking for a copy of a civil court report he had written because the CPS wanted to use it in criminal proceedings. And you may have heard about vulnerable witnesses who give evidence from behind a screen, but can an expert witness remain anonymous in proceedings? We find out. We also take a quick look at a case in which the expert got his role comprehensively wrong, and round up with a bit of topical news.
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Issue 83, March 2016
In the last issue of Your Witness we reported on a High Court decision that gave guidance on the nature of admissible expert evidence. We now investigate a February 2016 Supreme Court judgment that has cast further light on the topic, particularly when the expert evidence to be adduced is of arguably questionable probative value or usurps the function of the court by giving an opinion on a point the court itself should determine. Next, we consider some current EU regulations that apply specifically to expert witnesses - particularly topical given the upcoming referendum. We continue by looking at two recently launched court schemes which are seeking to lessen the time and expense of trials. The emphasis on shortened and truncated procedures is likely to have a far-reaching impact on expert evidence... if, that is, these schemes work as the court intends. Finally, following a spate of Helpline enquiries on the topic, we summarise the court guidance for experts considering withdrawing from civil instructions.
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Issue 82, December 2015
The relentless erosion of legal aid in England and Wales over the last two decades has resulted in a significant growth in alternative methods of funding for parties to litigation. The range of funding options on offer can be somewhat bewildering – not only for litigants, but for lawyers and other professionals too. Following a number of related queries from experts to our Register Helpline, in this issue we offer you a brief guide to what’s on offer. The exercise of the court’s wide powers to control the number of expert witnesses instructed in a case often gives rise to procedural challenges. Here we consider a recent Court of Appeal judgment when it heard a case against a refusal to permit expert evidence. We also review the compellability of expert witnesses. In theory, the law makes no distinction between witnesses of fact and expert witnesses, but in practice the courts exercise discretion in deciding whether an expert witness should be compelled to appear. And we revisit the question of experts keeping papers from old cases – what should you keep and for how long? And finally, how can a judge be compared with Goldilocks from the tale of the three bears? We strangle this particular simile to draw out the lessons from some recent judicial guidance on what constitutes a good expert report.
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Issue 81, September 2015
In this issue we report briefly on the Government’s reaction to the latest piece of shenanigans from the medical reporting organisations, and alert you to an imminent consultation on proposals from the Department of Health that would see fixed expert fees in many clinical negligence claims. We also publish the results of our latest expert witness survey. If you are keen to know how others view the expert witness scene, including summary statistics on charging rates, this is the article for you. And we amplify on our short piece in the last issue on weasel words from instructing lawyers. Is a judge bound to accept expert opinion that has not been challenged during the proceedings? This very question was addressed recently by Mr Justice Foskett who found himself in no bind whatsoever! We finish with a report of the Court of Appeal explaining to the Legal Aid Agency that it is not within the Agency’s power to override the will of the Court when it comes to paying for expert evidence.
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Issue 80, June 2015
In this issue we take a quick look at a problem that can occasionally arise with joint statements, before moving on to explain the latest government attempt to correct the litigation 'marketplace' in the high-volume, low-value road traffic accident personal injury sector – MedCo. This new system is supposed to prevent lawyers making money out of medico-legal reporting, but we conclude that it has a low chance of success. In an adversarial justice system, it can be argued that natural justice demands that each party should have a fair and equal opportunity to test the witness evidence. We ask how far this requirement should be allowed to override more practical concerns of the courts. We also conclude our two-part series looking at the role mathematical errors have played in court. Look out for the ‘Earth girdle’ – it demonstrates just how unhelpful our human intuition can be! And even though there’s an increasing focus on costs control by the courts, we report on a case in which fairness was allowed to trump parsimony. Our Helpline has inspired our final article which considers what an expert should do if an enquiry to instruct arrives from a party that has previously been on the other side of a case.
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Issue 79, March 2015
In this issue we consider the question of just how easy it is to demarcate an expert’s area of expertise. With all the sanctions being piled on experts who step outside their area of expertise it is clear lawmakers think this an easy task. Is that true? We also have the first of a two-part series looking at the role mathematical errors have played in court. Despite the ubiquity of the various errors, most are easy to spot. Expert assessors are not that common, but the case of Cary provides useful insight into the role, and in particular on the assessor selection process. We round off with a quick look at medical expert revalidation, news of a valuable addition to the UK Register of Expert Witnesses Professional Indemnity Insurance scheme and a little guidance from the ‘debt recovery coal face’ about one set of weasel words lawyers love to offer experts!
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Issue 78, Dec 2014
In this issue we work through the new Civil Justice Council guidance for experts, drawing out the key points for experts. We offer a refresher on the guidance that has not changed as well as an introduction to the areas that have. We also comment on the new Criminal Procedure Rules Part 33 practice direction that implements some of the Law Commission’s work on the admissibility of expert evidence in criminal cases. And we round off with some guidance on ‘scoping reports’ and an update on recent changes to the Civil Procedure Rules.
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Issue 77, Sept 2014
In this issue we look at the latest efforts at the Ministry of Justice (MoJ) to grapple with personal injury claims that arise from road traffic accidents (so-called “whiplash” cases). This is the area of expert work that has been labelled the “sausage machine” because it commoditises the litigation process in this high-volume, low-value sector. Such commoditisation has been growing for more than a decade and gave rise to the medical reporting organisations (MROs). It appears, though, that the MoJ has finally decided that the MROs have had their day. In other developments, we take another look at the difficulties that can arise in selecting the right expert witness to instruct and, through a fond retrospective on the recently retired Lord Justice Ward, consider some of the dangers inherent in the large growth in the number of cases being conducted by litigants in person. We also offer some advice on how to guard against correspondence that is lost in the post, and ask for your feedback on the “hot tub” in civil litigation in England and Wales.
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Issue 76, June 2014
In this issue we look back at the first year under the Jackson Reforms, and it hasn't been a happy year. We conclude by wondering if Jackson LJ will come to carry for the legal system the mantle Dr Beeching does for our rail system! The prohibition on expert witnesses giving an opinion on "the ultimate issue" is something that has been eroded over time. We look at what the antics of footballers can tell us about the current state of play. As a topic ever dear to many an expert witness heart, we get some advice from a debt expert who has spent a couple of years chasing lawyers for experts who are owed money. Finally, we take a very brief look at why it is so important for experts, and others, to understand the difference between the role of the expert advisor and that of the expert witness, and we reprise the Rules relating to answering questions under the Civil Procedure Rules.
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Issue 75, March 2014
In this issue we follow up on the 2011 Law Commission report on the Admissibility of Expert Evidence in Criminal Cases. The Government has finally published its response and you can see the Age of Austerity written all over it! We also look at some of the expert witness issues that can arise in litigation that crosses EU member state borders. The determination of the judiciary to impose its collective will on cost reforms was emphatically marked with the Court of Appeal decision in the ‘Plebgate’ litigation. We look at that case and also reflect on the sanctions that are now in place when an expert report is delayed. Finally, we take a very brief look at some helpful guidance from the Forensic Science Regulator.
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Issue 74, December 2013
In this issue we look at some new national standards for expert witnesses working in children cases and wonder if people are focusing on the wrong problem. We consider possible conflicts of interest that can arise when expert witnesses know the lawyer or the judge. We report on the use of expert opinion evidence from published sources, consider the implications of an expert witness who wishes to retire whilst a case is still wending its way through the court system and offer some thoughts from an experienced lawyer on how to avoid the bear traps when giving evidence.
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Issue 73, September 2013
In this issue we conclude our two-part series on the role of the expert witness in Scotland by looking at terms of engagement. The adversarial system used in Scottish courts is not dissimilar to that employed in the courts of England and Wales, but there are differences about which an expert should be aware. We also report on our tenth expert witness survey. If you are keen to know how others view the expert witness scene, including summary statistics on charging rates, this is the article for you. We also look at a couple of issues around paying for expert reports that flow from the changed approach to public funding of cases.
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Issue 72, June 2013
In this issue we start a two-part series on the role of the expert witness in Scotland. The adversarial system used in Scottish courts is not dissimilar to that employed in the courts of England and Wales but there are differences that an expert should know about. We also look at access to expert reports by parties who are not party to the litigation for which the report was prepared. Finally, we report on the latest moves by the Ministry of Justice to cut the amount it spends on expert witnesses.
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Issue 71, March 2013
In this issue we take a long hard look at litigants in person. With the major legal aid cuts in April 2013 will come a big increase in the number of litigants who will try and run cases themselves. The prospects for expert witnesses instructed by such litigants is not promising! We also look at a key effect of the Jackson Reforms for expert witnesses in the form of cost budgets. We round off with a couple of articles on expert determination. The first looks at when it is proper for the expert to determine his or her own jurisdiction and the second shows this theory in practice. If you are thinking of expanding your expert repertoire to include expert determination, these articles are for you.
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Issue 70, December 2012
In this issue we look at how the seemingly obvious requirement to select experts with the necessary skills, qualifications and experience can sometimes cause difficulties, particularly when it comes to deciding what weight to apply to the evidence adduced. We consider whether it always takes expert evidence to prove professional negligence and reprise the topic of whether an expert has to answer the questions put by another party. The difficulties created when a party wants to switch expert part way through a case are considered and we muse on whether Wales will soon create its own jurisdiction. Finally, the need to agree instructions at the outset is highlighted and we report on a legal attack upon a parsimonious decision on funding a family court report by the LSC.
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Issue 69, September 2012
This issue is turned over almost entirely to the recently published revision of the Civil Justice Council’s Guidance for the instruction of experts to give evidence in civil claims. This document began life in 2005 when the Civil Justice Council took the initiative to establish a single, authoritative set of guidance for expert witnesses working under the Civil Procedure Rules (CPR) in England and Wales. This is the first major revision since 2005. Exactly when this new text will replace that currently appended to CPR 35 is not yet clear, so this is an early opportunity to get to grips with what is very likely to come into force in the coming months. We also look briefly at who pays for an expert witness answering questions put under CPR35.6 and what the Solicitors Regulation Authority has to say on what solicitors should tell clients about expert witness fees.
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Issue 68, June 2012
This issue is turned over almost entirely to an expert witness’s terms of engagement. The recent changes wrought by Jones -v- Kaney together with moves on fees at the Ministry of Justice and Legal Services Commission, have made the need for an expert witness to have in place a proper contract more important than ever. A good set of terms won’t stop problems arising, but it will make clear what each party expects of the other and the contractual obligations. As a result, dealing with any problems that do arise will be much easier. We also summarise the Ministry of Justice litigation reforms.
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Issue 67, March 2012
In this issue we look at the Family Justice Review final report and wonder if it is more about cutting costs than improving access to justice for some of the most vulnerable in society. We also report on some early results from the trial of concurrent expert evidence (or hot-tubbing as it is known). The difficulties that can arise when experts have prior knowledge about a piece of litigation or the parties are also considered. We also look at the National Taxing Team which deals with discretionary costs in criminal courts, introduce a new handbook from the Solicitors Regulation Authority, have a smile at the expense of psychologists and explain how expert witnesses in the UK Register of Expert Witnesses can get Your Witness on Kindle.
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Issue 66, December 2011
In this issue we look at the ability others have to reuse expert witness reports from unrelated proceedings and report on two cases which have seen the Jones -v- Kaney judgment play an important role, in one case it meant a proper defence had to be raised by an expert witness and in another the fact the expert witness could now be sued was critical in the Court of Appeal rejecting an application. We also consider the admissibility of expert evidence that was prepared for someone who is no longer a party to a court case and take a first look at the recently published Family Justice Review as it relates to expert witness and at some Woolf-like reforms taking place in Scotland.
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Issue 65, September 2011
In this issue we launch, in response to Jones -v- Kaney, the UK Register of Expert Witnesses Professional Indemnity Insurance Scheme, designed to offer expert witnesses top-quality cover at market-beating prices. We reveal the outcome of our ninth bi-annual expert witness survey and we consider a case that deals with whether prior knowledge of one of the parties, or some other aspect of the case, compromises an expert witness’s claim to independence. We look at the impact that discrediting an expert witness should have on past cases and we underline the important distinction between expert advisors and expert witnesses when a party decides to ditch one expert witness and seek the opinion of another. Finally, we report on a family court case that has an important message for all expert witnesses about what can and cannot be kept confidential.
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Issue 64, June 2011
In this issue we take a long hard look at the Supreme Court decision in Jones v Kaney and consider some of its consequences, the decision-making process itself and some import considerations for expert witnesses under the new liability regime. We summarise the three different Statements of Truth that you need to use on reports for civil, family and criminal courts and introduce the new Family Procedure Rules Practice Direction 25A dealing with experts, which contains some helpful ammunition for experts trying to get their instructing lawyers in line. Finally, we preview a bespoke insurance scheme for experts in the UK Register of Expert Witnesses, announce a new LittleBook on marketing and enclose the latest survey form in our biannual series of surveys of the expert witness world.
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Issue 63, March 2011
In this issue we welcome the arrival, after a decade-long gestation, of the Family Procedure Rules which come into force on 6 April 2011. They provide a single set of rules for family proceedings in high courts, county courts and magistrates’ courts in the style of the Civil Procedure Rules and contain little to surprise experts. We review a case in which the controversial Low Copy Number DNA technique – in which tiny amounts of DNA are processed – is declared sufficiently established to be admissible in court. We consider what to do if those who instruct you are trying to hide your report from the court, comment on guidance from the Crown Prosecution Service on ‘shaken baby’ cases and on the use of ‘likelihood ratios’ based on dodgy databases, and clear up some confusion over whether a recent tax tribunal case means experts no longer need to charge VAT on their reports.
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Issue 62, December 2010
In this issue we look at the ‘ultimate issue’ rule – To what extent can expert witnesses give opinions on the facts the court has to determine? – and conclude it is virtually dead. We review a case in which the Court of Appeal looked at the way an expert at the Forensic Science Service (FSS) used a Bayesian approach ‘behind the scenes’ in coming to an opinion on how likely it was that a footmark came from the defendant’s shoe. The Court of Appeal ruled that such an approach was unsupportable, that the FSS was dabbling in pseudoscience and that the Forensic Science Regulator was wrong to promote the use of the approach across the board. We report on some recent guidance on the use of expert evidence from the Technology and Construction Court (often a trail-blazer on developments in procedure), and summarise the latest consultation from the Ministry of Justice on expert fees.
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Issue 61, September 2010
In this issue we look at some Court of Appeal guidance on how juries should choose between experts who disagree in their opinions (and wonder just how its effectiveness can be tested when we don't know, and can't research, how juries make their decisions). We take a look at expert determination, a form of ADR that is growing in popularity. We review a case in which expert evidence on custom and practice in an industry played an important role, and we anticipate some of the arguments likely to play out at the Supreme Court when expert immunity comes under the spotlight in early January 2011.
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Issue 60, June 2010
In this issue we look at the next stage in the Ministry of Justice attempt to get to grips with the cost of expert evidence paid out of public funds. We take a detailed look at the 'hot tub' system, developed in Australia, that Jackson LJ has recommended be tested over here. We consider the future for MROs given their last-minute reprise by Jackson LJ in his Review of Civil Litigation Costs, and we ask whether jurors are able to comprehend the technical expert evidence put before them.
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Issue 59, March 2010
In this issue we look at a proposal to integrate experts more tightly into the Family Court process, review a recent case that deals with how an expert can express the strength of his opinion and report on a recent appeal involving the Low Copy Number DNA procedure in which once again the technique received the official seal of approval. We also summarise the developments in expert witness immunity as a new attempt to remove this important protection (important for litigants, not experts, that is) sees the matter heading to the Supreme Court and ask whether there is anything an expert can do to overturn the decision of a Determining Officer.
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Issue 58, December 2009
In this issue we report back on the latest in our series of bi-annual expert witness surveys. We consider the proposals made by the Ministry of Justice to cap expert witness fees, and summarise our response to the MoJ, which predicts a serious impact on the supply of experts willing to undertake forensic work if the proposals are implemented without radical modification. We also report on three cases dealing with the introduction of fresh expert evidence in criminal appeals, and ask for your help in gathering information on the activities of professional regulators and on the judicial criticism of expert witnesses.
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Issue 57, September 2009
In this issue we wrap up our coverage of the Law Commission consultation on pre-trial testing of expert evidence, we look at the history of and recent developments in clinical negligence case law (and find a relaxation in the burden of proof) and we take a first look at the MoJ's latest attempt to control expert fees. We also preview some rationalisation of the Criminal Procedure Rules, consider literature citation in expert reports and launch the latest in our series of bi-annual expert witness surveys.
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Issue 56, June 2009
In this issue we look at new BMA guidance on terms of engagement for doctors, a jury foreman who has got himself into a spot of bother and a prosecution expert witness who appears to have missed the vital guidance contained in the CPS Disclosure Manual. However, we spend most of our time on the Law Commission consultation on its plan to introduce a pre-trial assessment of expert evidence in criminal trials, the problems it identifies, its proposals for change and our analysis of the likely efficacy of these proposals by reference to some key criminal test cases. Finally, we focus on data protection and the expert witness, and we muse on the thought that most readers of Your Witness are likely to be breaking the law!
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Issue 55, March 2009
In this issue we take a look at the Forensic Science Regulator's consultation on the accreditation of forensic science practitioners, and include information about how to contribute. We also consider running an efficient business and how it could help you weather the economic turmoil and round off with a court report offering the Court of Appeal's thoughts on leading-edge science in the courtroom.
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Issue 54, December 2008
In this issue we take a look at expert witness work and recessions - it isn't all bad news! We also look at debt recovery in Scotland with the aid of the Law Society of Scotland, deferred payment and its effect on income tax and some more attempts by the LSC to cut the amount it pays to experts. Finally, we have a clutch of court reports considering ear print evidence, how an expert dealt with a court ruling him 'inexpert' and the use of shadow experts in the Family Court.
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Issue 53, September 2008
In this issue we take a look at the new GMC guidance for doctors undertaking expert witness work, how the way courts deal with potential bias in an expert witness has evolved in recent times and debt recovery in Scotland. We also look at what to do if a court makes a determination that you aren't an expert and review a clutch of court reports considering the relevance of expert opinion, challenging bias and waiver of privilege.
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Issue 52, June 2008
In this issue we take a look at the admissibility of novel scientific evidence in criminal cases, the new Family Court Practice Direction for experts, some further developments in the Low Copy Number DNA profiling technique and the results of the review ordered by the Forensic Science Regulator.
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Issue 51, March 2008
In this issue we take a look at some further guidance on how long experts should retain documents, what an expert can do when a lawyer goes bust, the Low Copy Number DNA profiling technique, and the trouble it finds itself in, and three court reports dealing with expert fees in the Lands Tribunals, the disregarding of inadequately prepared expert evidence and the proper place expert evidence holds in the evidential base of a case.
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Issue 50, December 2007
In this issue we take a look at some unhelpful changes to the rules that govern the conduct of solicitors and at a further layer of regulation of expert witnesses being introduced by the Government. We consider how long experts should retain documents generated by an instruction and the role the expert witness has to play in the court's fact finding process. We ask whether fresh expert evidence can be grounds for reopening an appeal, and look at the consequences that can flow from a statutory body's failure, as opposed to a litigant's failure, to disclose expert evidence.
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Issue 49, September 2007
In this issue we take a look at preliminary results of the latest in our series of expert witness surveys, the extent to which experts can control the scope of evidence in a case and what a judge must do if he wants to reject an expert's findings. We also look at a case that gives further judicial support for the right of an expert with a connection to a party being able to act as an expert witness. The cross-examination of SJEs and the role of experts in compromise agreements are also covered. Finally, we report on another medical reporting organisation (MRO) that has gone into liquidation (IMS of Richmond in Surrey) leaving thousands of doctors owed a total in excess of £4,000,000 - and offer guidance on how to bypass the MRO and seek redress direct from the instructing lawyer.
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Issue 48, June 2007
In this issue we take a look at when exactly an expert's duty to the court begins, developments in the fitness to practise regime covering doctors, how to minimise problems that can arise when an instructing solicitor moves to another firm, the quality you should expect of the documents you receive as part of an instruction, how the judge should handle an expert's report that is clearly in error, and what can happen when an expert changes his opinion
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Issue 47, March 2007
In this issue we take a look at the major differences between the jurisdictions in Scotland and England and Wales, the technical difference between experts giving opinion evidence as opposed to factual evidence, the growing opportunity for experts in risk assessment to provide expert evidence, the Government’s novel approach to using experts to increase the conviction rates in rape cases, a court report that re-examines the situation in which an expert is employed by one of the parties, and how causation can come into question in low-velocity RTAs. All in all, an eclectic mix of topics that hold the common thread of being centred on the use of expert witness evidence. We also announce the launch of 2 new Little Books for Experts: Expert Witness Fees and Expert Witness Practice in the Civil Arena.
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Issue 46, December 2006
In this issue we take a look at the Court of Appeal judgment in the GMC -v- Meadow appeal, and the Chief Medical Officer’s (CMO) proposals for dealing with the problem of too few experts willing to offer their services to the Family Courts. While both articles are rooted in the medical arena, they have significance for all experts. The Court of Appeal decision on immunity will have important ramifications for all professionals. Likewise, the CMO's proposals for ‘opinion by committee’ represent a radical departure from the status quo. If adopted, we may well see the change filter across all disciplines as the courts alter the way they adduce expert evidence.
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Issue 45, September 2006
Sherlock Holmes and the case of the missing humility - lessons for the 21st century from the Edwardian era • In court: etiquette and procedure • Experts and the ultimate issue • Adjudicator's discretion to disregard expert • What constitutes 'fresh evidence' • A guide to the courts of England and Wales • Testing frontier science
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Issue 44, June 2006
Why has the Attorney General decided to intervene in the GMC’s appeal against Collins J? • The final text of the Criminal Procedure Rules - a missed opportunity? • Record, retain, reveal - guidance on disclosure for prosecution experts • A problem for experts claiming travel time in criminal cases resolved • Wollard -v- Fowler spells trouble for the MROs • Services for experts from the UK Register of Expert Witnesses
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Issue 43, March 2006
Meadow -v- GMC - expert witnesses are now immune from disciplinary procedures initiated by anybody but the court • Fixed fees for experts on the cards • R -v- Campbell - court throws out prosecution over error in CV • MROs under fire as courts prevent lawyers recovering the MRO mark-up • Lord Carter’s Review on Legal Aid Procurement - a second helping • Criminal Procedure Rules - CrimPR Committee urged to go further • VAT on medico-legal work - HMRC urged to delay implementation
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Issue 42, December 2005
Criminal Procedure Rules consultation • VAT on medico-legal reports consultation • Science on trial through the ages • Dangers in a CV • Lord Carter’s Review on Legal Aid Procurement • Earle -v- Centrica: disallowed MRO fees • McTear and the smoking statistic
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Issue 41, September 2005
Meadow appeals GMC decision • LawyerLists service launch helps experts with their marketing to lawyers • Initial results from the Expert Witness Survey 2005 • CJC Experts Protocol - at last it’s official and we present it here in full and annotated!
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Issue 40, June 2005
Accreditation or registration - CJC Forum report, Conclusions, Survey results and Action plan • Declining quality of solicitor instructions • Judicial discretion in appointment of experts • Is permission needed for a party to instruct and a second expert? • Should the trial judge read literature referred to in an expert’s report?
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Issue 39, March 2005
The lesson of Barion Baluchi • The LSC Consultation: Accreditation, Price, Procedures • Survey on LSC Consultation • Joint & Several Liability • Court reports: party acting as the expert, when a witness of fact takes priority over the expert and more on the immunity of expert witnesses
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Issue 38, December 2004
The LSC Consultation • Phillips -v- Symes - the potential for experts having to pay wasted costs in a legal action • The status of draft expert reports - can a party force their disclosure? • Judicial support for witness training • The dangers of ‘coaching’ - when does training go too far? • Money Claim Online - how to sue for your outstanding fees from the comfort of your armchair!
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Issue 37, September 2004
Taking experts out of the court - is there a need to assess expert evidence ahead of the trial? • The substance of instructions - How much of one’s instructions need to be referenced in a report • The reluctant expert - things to consider when a report hasn’t been paid for • Getting paid III - enforcement • Letters
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Issue 36, June 2004
Introduction to the new revetting system for experts listed in the Register • The reasons for ever shorter court timetables, the problems they’re causing and potential solutions • A guide to the use of experts in the legal systems of a number of our European neighbours • A final visit to the aftermath of the Court of Appeal decision in the Cannings case with a view to exploring whether it puts science on trial
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Issue 35, March 2004
Another medico-legal reporting agency gets into trouble • Cot Death cases and experts - who will carry the can? • Coroner’s court reform - more work for experts • Agents - how experts can bypass the middleman • Copyright protection for experts • VAT for experts - including the up-coming introduction of VAT on medical reports
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Issue 34, December 2003
Revalidation and the medical expert witness • Lawyer fees • Court reports, including The freedom to instruct, the discarded expert, letters of joint instruction • Exchanges from the e-wire - a solicitor’s personal responsibility for expert fees • Getting Paid II - when in dispute • Copyright for experts
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Issue 33, September 2003
Report on the fifth in our series of two-yearly surveys of the expert witness world • Proceeds of Crime Act • Guidance on the thorny problem of getting paid • Preparing academics for the courtroom
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Issue 32, June 2003
Why experts should keep their immunity • Expert survey 2003 • Digest, including Enron changes the rules, courts look again at delay, lawyers should prepare experts, the inadequate expert • Judicial criticism - the ARB exonerates the object of Judge Jacob’s wrath • The implications of the Sally Clark case for experts in child abuse cases • New horizons - new asbestos regulations look likely to create job opportunities for experts • Experts and legal privilege
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Issue 31, March 2003
The importance of the Sally Clark appeal to experts • Focus on ADR • Court report - judges disregarding expert evidence • Electronic documents in evidence • Letters
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Issue 30, December 2002
Is there property in an expert witness • Woolf - 4 years on • Irish caution • News
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Issue 29, September 2002
‘Agreed’ experts vs SJEs • Court report covering Factortame and contingent fees for experts • Letters • News • Conference and training update
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Issue 28, June 2002
Disciplining experts • Selecting SJEs • Answering questions • Court reports • Letters • News • Training update
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Issue 27, April 2002
Loads-a-Guidance! • CPR Part 35 changes • Sally Clarke • Court reports • CPR Protocol • News
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Issue 26, December 2001
Expert witness survey 2001 • The eCast explained • The Auld Report • Copyrighted material and expert reports • News
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Issue 25, September 2001
Expert agencies • Court report • Regulation: the CRFP stance • News and letters
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Issue 24, July 2001
Regulation survey • Court reports • Letters
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Issue 23, April 2001
Acting as an SJE - survey results • Court report • Usurping the judge • News and letters
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Issue 22, December 2000
Experts’ immunity • Court reports • Conference reports
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Issue 21, October 2000
The Human Rights Act and experts • Court reports (including justification for refusing inappropriate instructions) • Do experts still enjoy immunity? • News • Letters on the witness summons
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Issue 20, June 2000
The witness summons • Small claims • CPR: The experts’ views • News
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Issue 19, April 2000
News • Claimant/defendant instruction split • Mediation • Appealing CPR • Court report • Factsheets
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Issue 18, December 1999
News • Medics as expert witnesses • Risk assessment and the new legal landscape • Conference reports
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Issue 17, September 1999
Draft Code of Guidance for Experts • Expert witness survey 1999 • Risk assessments in experts’ reports • News and conferences • Criminal matters • Court reports
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Issue 16, June 1999
OSS cop out • News • More on conditional fees • No win, no fee – and (?) no premiums • Accreditation... here we go again! • Services for experts • Court reports • Conferences and courses
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Early issues in HTML format:
Issue 15, March 1999
Access to Justice Bill • Funding Code for legal aid • Civil Procedure Rules 1999 • Practice direction • Conferences and courses • Letters
Issue 14, December 1998
Litigation changes • The Draft Rules • The expert’s protocol • Other news • Court reports • Letters • Conference reports

Issue 13, September 1998
Legal aid • Civil procedures • Medical negligence rethink • Fewer civil actions • New statutory right • Court report • RTA reporting • Letters

Issue 12, July 1998
Medical experts’ fees • Legal aid reform • Pre-action protocols • Small claims concession • Revised allowances • Conference report • Letters

Issue 11, April 1998
Fees survey 1997 • Experts’ immunity from suit • Legal aid reforms • The small claims procedure

Issue 10, December 1997
No-win, no-fee implications • New web site • Conference reports
Issue 9, September 1997
Faxback factsheets • Woolf under attack • Fee survey
Issue 8, July 1997
Woolf under review • World wide web or wise witnesses wait?
Issue 7, April 1997
Seven pillars of wisdom, but are they all sound?
Issue 6, December 1996
Representation or accreditation?
Issue 5, August 1996
Access to Justice – The Final Report
Issue 4, June 1996
The Woolf Inquiry: your replies
Issue 3, March 1996
The trouble with court-appointed experts • Society of Expert Witnesses
Issue 2, December 1995
Lord Woolf on expert witnesses
Issue 1, September 1995
Expert witness survey

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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