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Solicitors ‘telling experts to leave out dates’ to meet post-Jackson time limits

Requests 'risk damaging professional independence and integrity', occupational therapists warn

19 March 2014

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Solicitors are asking expert witnesses to omit dates from the information they rely on when writing their reports in a bid to comply with tough, post-Jackson timetables, it has emerged.

A specialist section of the College of Occupational Therapists has warned members that solicitors are increasingly sending out "source material including draft reports and witness statements but asking them either not to list or refer to this material in their report or to remove all dates of reports and witness statements".

The medico-legal committee of the section specialising in brain injuries said, in an alert to members, that these demands were incompatible with the civil procedure rules.

"There is a clear danger that experts who agree to such requests could be liable to censure by the court and are putting at risk their own professional independence and integrity."

The committee said it was aware that this was a "very difficult area", since experts naturally wanted to maintain a good relationship with their instructing solicitors and solicitors themselves were under "increasing time pressures" due to tight case management by the courts, following Jackson and the Mitchell judgment.

"Essentially, occupational therapy experts need to be aware that it is not a straightforward issue and they should consider very carefully the implications of the request before doing it.

"By removing dates from documents there is a huge potential for confusion further down the line, with readers being unclear which documents have been relied upon, eg at experts' meetings and in court."

However, the committee said it was "perfectly acceptable for solicitors to ask experts to update their reports in the light of new evidence, and that legally an earlier report can remain privileged with only the final report being served.

"Solicitors will therefore want other experts to only refer to the report being served, with previous versions being deleted from document lists - this is perfectly acceptable, as long as those other experts have considered the updated report and amended their own in the light of what they have read."

The committee added that once experts had read a document, the content of that document was within their "background of knowledge" and could consciously or subconsciously influence their thinking.

In a separate development, a survey of opinions from experts by witness training company Bond Solon has revealed a wide range of concerns about the post-Jackson landscape.

These included the reduced fees, increasing bureaucracy, "draconian time limits" and "solicitors bartering for work to be done for less".

Mark Solon, managing director of Bond Solon, commented: "As the first anniversary of the Jackson reforms of civil litigation approaches, we asked expert witnesses for their views. The natives are restless - there is discontent around fees, timetables, the amount of work and access to justice."

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