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17

www.solicitorsjournal.com

FEATURE

FORENSIC ACCOUNTING

The court loses the

opportunity to see

the full range of

opinion that may

legitimately exist

>>

school of thought or methodology. Experts can

bring their own‘baggage’with them, without

necessarily declaring it.With an accountant this can

be in the interpretation of evidence; the likelihood

of changes to a business or career; what a

reasonable range of change (expansion or

contraction) in, say, customer demand, income, or

costs may be; or a host of other factors that

typically have to be addressed when forming an

opinion on loss quantum.

Unfortunately, I have encountered both extreme

views and serious mistakes in calculations with

party accountancy experts, which would have

resulted in quite different settlement outcomes

had they gone unchallenged or uncorrected. As

such, it seems tome that there is also a real danger

(particularly with quantum) of an error or an

extreme view by the SJE going unchecked. This is

particularly so if one party (and in an injury claim

this will be the claimant) cannot afford the luxury

of advice from a shadow expert.

Practical considerations

Therewill also be a tendency for each side to be

mistrustful of candidates put forward by the other

(and it is natural for solicitors to prefer a previously

used expert or onewho comes highly

recommended).Those issues aside, key features

of a good accountancy SJE in an injury claimare

going to be experience, thoroughness, and integrity.

There can often lurk the fear that the SJE’s

evidence will decide the case on quantum, but that

situation can be countered by careful instructions

and by using an expert who knows exactly how

they ought to participate in the litigation under the

CPR and CJC guidance, setting out ranges and

alternatives, dependent upon different findings of

fact by the court.

That being said, the parties are losing the

opportunities afforded by exploring the expert’s

evidence at conference. Such exploration of expert

evidence, under the protection of legal privilege, is

sometimes the crucible in which the foundations

for potential settlements are forged. The

alternative may be that the services of a shadow

expert are used to check, interpret, and offer

alternative quantumproposals – but with injury

claims there will mostly be an‘inequality

of arms’between the parties. It will be a rare

claimant that has access to a shadow quantum

expert where there is an SJE appointment (such

inequality is specifically anathema to the

overriding objective).

Successful SJE appointments

Situations where a single quantumexpert might

work arewhere earnings, pensions, and benefits

losses, or variations thereof, are required in

circumstances where both parties can clearly define

their respective scenarios and cases.

The alternative would be for a quantum SJE to

‘go in’relatively early in the process, with a brief to

interview the claimant, gather evidence, and

quantify losses. But that will only really work in the

most simple of cases. If there is a range of

alternative facts (some opposing) to be taken into

account, and a plethora of separate calculations

needed, then there is a danger that the quantum

expert’s evidence will become so watered down

and obligingly disparate as to render the exercise

unhelpful. A solution in some cases might be for

the defendant to send someone to observe the

claimant interview.

To achieve a successful SJE appointment, the

parties will have to‘front load’effort on quantum

and have a reasonably clear view of where their

respective pleadings are going. So, for example,

explanations about the impact of injuries on work

are understood, financial records and evidence are

available, and there is a reasonably clear view of

the effects of the index event that can be translated

into instructions to the expert. There also has to be

a clear and adequate timetable whichmakes

suitable allowance for the expert’s questions,

updates to loss calculations, and so on.

Paramount to success is having the right expert as

SJE.This starts with the traditionally difficult area of

identifying, selecting, and agreeing on the single

expert, whichwill require a degree of compromise.

However, themore quantumSJE appointments that

occur, themore a culture of trust will – or should I say

may – develop, making this process easier.

The SJE is still not a popular beast, and for a

number of reasons is not felt to be ideal onmatters

of complex quantumwith injury claims. However, it

will be interesting to see if practices are forced to

change in circumstances where the usual

adversarial system is ultimately influenced by

government intervention.

Might the more frequent use of the single

quantum expert, while potentially fraught with its

own set of problems, be less of a problem than the

two evils of costs and proportionality? Maybe, if a

good quality expert is used and solicitors invest in

the process of tailoring instructions more to the

peculiarities of an SJE appointment. There will be

mistrust and a change in current practices will be

needed, but it may be that SJEs, where they are

properly instructed, guided, and questioned, can

indeedmake a considerable proportion of cases

capable of being conducted at a significantly

reduced cost.

SJ

SJ 160/6

Expert Witness Supplement Spring 2016