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7

www.solicitorsjournal.com

Retired experts

are often better

able to meet tight

deadlines and

court appearances

SJ 160/6

Expert Witness Supplement Spring 2016

Primers

Lord Hughes wanted to see expert witnesses

create ‘primers’setting out the common ground

on which experts in their field generally agree.

He said: ‘It is possible, maybe likely, that this

process will... advance from the agreed statement

in a single case to an agreed statement of general

principles applicable to cases of a particular kind.

One day I hope that there will be primers in the

sciences which constantly recur. They will be

booklets prepared by well-respected experts in

the field, which set out the minimum common

ground which is generally agreed by those who

practise in the particular area, and in language

which simple lawyers can understand – hence

“primers”… In principle this ought to be capable

of accomplishment in plenty of fields. It will not

put experts out of work, for there will always be

disputed territory beyond the agreed minimum,

and litigants who need to go there.’

A chartered surveyor attending the conference

supported this approach, and the time and

money that could be sensibly saved in the courts.

In his experience, when two experts put together

a single statement of agreed facts, they are

‘consistently knocked back, told to do two reports

and then to sit down and see what aspects we can

agree’.

Other groups have previously supported the

idea of primers: at the Annual Legal Update, Jason

Tucker of Cardiff Law School advised experts to

look at Sir Brian Leveson’s ‘Review of efficiency in

criminal proceedings’and the Royal Statistical

Society’s primer-style ‘Case assessment and

interpretation of expert evidence’.

Capped fees

How will the cap on expert witness fees affect

the instruction of experts? In criminal legal aid

cases, Owen said that ‘the situation is dire, but I

fear that there is little prospect of things changing

unless and until enough expert witnesses simply

refuse to accept the instructions’. The two expert

witnesses on our panel already refuse cases with

capped fees.

For more on this, turn to pages 22-23

What solicitors want

Page discussed how experts could improve

the relationship with the solicitor. Examples

included:

„

„

Be proactive and pushy to ensure you get

good quality instructions. Ask good questions

to establish what the key points are;

„

„

Ensure you know the name of the partner

responsible for the case. Contact them if

something is going wrong;

„

„

Keep a careful record of all documents you

have received;

„

„

Ensure you are given the timetable and kept

updated: if you don’t know what the deadlines

are, you will not be able to comply with them;

„

„

Don’t overpromise: be honest about the time

that it will take to do the work and the other

commitments in your diary; and

„

„

If cost estimates change, discuss it with the

solicitor at the earliest opportunity.

Randomised selection of experts

Richard Mason, deputy director for civil justice

at the Ministry of Justice (MoJ), gave a briefing on

the government’s whiplash reform programme.

In February 2012, the government committed

to tackling the number and cost of whiplash

claims and highlighted potentially unhealthy

relationships between experts and the people

instructing them. The MedCo portal was

introduced to break that link.

Since 6 April 2015, solicitors and other

instructing parties have only been able to source

expert medical reports in soft tissue injury claims

through the MedCo portal, which returns a choice

of randomly generated medical reporting

organisations (MROs) and medical experts.

To ensure that all experts meet the MoJ’s

standards, from February 2016 experts will only

appear on the portal if they have undertaken

and passed MedCo’s accreditation.

Mason stated that the MoJ had confidence in

MedCo, but changes might be introduced as a

result of the review and audit of MROs, which was

started earlier than planned to tackle perceived

gaming of the system. The outcome of the review

will be published shortly.

According to Mason, there are currently no

plans to expand the MedCo system to other areas

of expertise, but once it is fully bedded in, the

government will reconsider. For example, the MoJ

has asked the Civil Justice Council to investigate

potential abuse in cases of noise-induced hearing

loss, for which a MedCo approach may be

suitable.

SJ

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