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5

I

n November 2015, more than 360 expert

witnesses met inWestminster for the

21st Annual Bond Solon ExpertWitness

Conference. Some interesting trends became

apparent.

Retired experts

One of the arguments that re-emerged concerned

the use of retired expert witnesses. In his keynote

address, Lord Hughes stated that ‘your evidence

or advice is not much use to anyone unless you

have current hands-on experience in your field’.

He added: ‘It is particularly a problem in

medicine… If you are being asked for a prognosis,

the first question any barrister will ask is when

you last had a patient (not a client) in the same

situation. And then, howmany, so that you can be

seen to be speaking from a decent size of sample

of the way patients actually react. If you are being

asked whether the practice adopted at the

operation passes muster or not, same question:

when did you last do it yourself?’

Most experts did not agree. In the annual

survey, we asked: ‘Do you think that when

someone retires from their profession they should

also retire from expert witness work?’72 per cent

said no and only 22 per cent said yes.

It is not always possible to ignore retired

experts: one finance expert in the audience

commented that banks don’t allow their

employees to act as experts. There are also cases

where a retired expert is more appropriate.

For example, in historical cases a retired expert

may be less likely to confuse historical working

practices with more recent developments.

Retired experts are often better able to meet

tight deadlines and court appearances.

Ben Holland, a partner at Squire Patten Boggs,

also commented that he looks for an expert who

has recent experience of giving evidence and

writing reports. Often, the more experience an

expert has in the courtroom, the fewer hours

they will be able to commit to direct practice.

Judge Topolski QC argued that retirement

should not be a bar to giving evidence. When our

panel was asked whether expert witnesses should

be in active practice in their speciality, he

responded: ‘It is to my mind inconceivable that

there is that huge reservoir of talent that we

should just simply abandon.’

However, experts not currently in practice can

be at a disadvantage.

Judge Topolski highlighted the Keran

Henderson appeal (

R v Henderson

[2010] EWCA

Crim 1269), in which he, as a barrister, called an

expert who was not in current practice. Lord

Justice Moses was concerned that a retired expert

would be disadvantaged in two ways: by not

doing the job on a daily basis and by potentially

not keeping up with developments. Judge

Topolski urged retired experts to ‘read that part of

the judgment in

Henderson

…get familiar with

the way that the court was thinking and act

accordingly’.

Allen & Overy partner Joanna Page reflected

Judge Topolski’s comments. If experts are not fully

up to date in a particular area, she said, then they

should tell the instructing solicitor at the earliest

opportunity: if they are shown to be out of date in

cross-examination, their evidence could be

diminished.

If experts are working in a controversial area,

they could also take the initiative and ask the

solicitor to put it before the judge as a preliminary

issue. This may avoid arguments later, when the

expert has done the work and risks not being paid

for it. Judge Topolski mentioned that he had heard

an application on this in a criminal case.

>>

GUEST FOREWORD

INTRODUCTION

The use of retired experts and the introduction of randomised selection through the MedCo

portal are just some of the issues currently concerning expert witnesses, says

Mark Solon

Current trends for

expert witnesses

Mark Solon is chairman of

Wilmington Legal and founder of

Bond Solon Training

@BondSolon

www.bondsolon.com

SJ 160/6

Expert Witness Supplement Spring 2016