As one of those vital but sometimes overlooked elements of the justice system, expert witnesses perhaps needed something to raise their profile – and the notion of ‘hot-tubbing’ them has certainly done that.
One of a series of significant issues facing experts and the wider legal community, hot-tubbing is the somewhat suggestive way to describe the practice of experts giving concurrent evidence in court (we can thank Australia for both). Since being introduced in 2013 as part of the Jackson reforms, it has improved the quality of evidence, saved trial time, and helped judges determine disputed issues by shuttling between the experts.
These, at least, were the conclusions of a Civil Justice Council (CJC) working group last year, to which the Expert Witness Institute contributed.
The CJC found that hot-tubbing had been used in a variety of cases, from the Court of Protection to competition law, and it was done in different ways. In some cases, experts gave evidence back to back, while ‘pure’ hot-tubbing involved the judge-led joint examination of experts. Some judges, however, let counsel play more of a role. Experts do not mind who asks the questions but the responsibility that is placed on the questioner is significant.
The CJC report was taken on by the Civil Procedure Rule Committee, which will soon consider rule changes to promote the practice. The aim is for it to become, increasingly, a normal feature of expert evidence in all courts. It has even been suggested that a streamlined process similar to the shorter trial scheme or an earlier hearing date where parties use hot-tubbing may be used as incentive to promote its use, particularly if it saves costs.
Promoting effective evidence
It was also encouraging last year to see Chief Master Marsh, in the case of UPL Europe Ltd and another v AgChemAccess Ltd and others [2016] EWHC 2889 (Ch), impose a costs order on defendants who failed to engage in discussions about expert evidence, leading to the claimants having to go back to court. He rightly said that parties must always cooperate in efforts to focus expert evidence as much as possible.
While ways to promote more effective expert evidence are good news, further difficulties with securing proper pay are not. Legal aid rates are reaching the point of being unsustainable for most experts, while the same may happen for low-value clinical negligence cases if the Department of Health presses ahead with its plan that experts should be paid a fixed £1,200 in cases worth up to £25,000.
The CJC has stepped in here too, warning ministers that some may refuse to take instructions and restrict their work to higher-value cases.
Its response to the department’s recent consultation said: ‘A sum of £1,200 to cover a report, a conference, and a joint report with an expert instructed on behalf of the defendant will not be thought by many experts to be adequate remuneration (particularly in some specialist areas) and the position is highly unlikely to allow more than one expert to be instructed, which is necessary in some cases…
‘In many cases… capping fees at £1,200 would be unrealistic on the current market (it is to be noted that there has been no analysis of expert fees), and would prevent many cases being brought, particularly in certain clinical disciplines.’
Unfortunately, it appears that the government was so worried about ensuring that claimant lawyers are not deterred from taking on low-value cases that it forgot to think about experts being deterred instead.
Solicitors’ role
The legal profession – which relies so heavily on expert witnesses – also has to do better if solicitors are not to drive away those who provide such services. The Institute’s annual survey last year said that a third of experts found instructions from solicitors below the required standard, while 54 per cent reported having been pressured to change a report. This is simply unacceptable and shows a failure to understand the expert’s role. And just 10 per cent said they were paid on time, a lamentable figure.
Expert witnesses perform a crucial role in our justice system. They are open to change if that change improves the process or outcome of that justice system. The government and solicitors must do more to consider and recognise the role of expert witnesses, and the Institute will continue to make their voice heard among policy makers and the wider legal profession. Collaboration and cooperation is ultimately in all of our interests.
Martin Spencer QC is chair of governors of the Expert Witness Institute
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