SJ EWS February 2016

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17
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