Experts | The future for experts in low-value RTA claims

On 1 April 2013, many of the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, signalling a seismic change in the litigation landscape as we know it. These changes have implemented, via amendments to the Civil Procedure Rules (CPR), many of the proposals to reform to litigation costs and funding as recommended by Lord Justice Jackson. Such changes are intended to meet the government's desire to streamline personal injury claims, promote efficiency and reduce litigation costs. Such an objective is to be welcomed, but what does it mean for experts who are instructed in low value claims?

What has changed?

From 1 April 2013, the number of experts (as with factual witnesses) can be even more closely controlled by the court. The requirement is intended to promote greater focus in evidence and reflects increased court power to cost manage as well as case manage. Therefore, parties seeking permission for expert evidence must now:

• identify the issues the proposed evidence will address; and

• provide an estimate of the costs of that evidence.

The order granting permission may specify the issues which the expert evidence should address (as well as the format of the report). The aim of the costs estimate is to assist the court in exercising its inherent power to limit recoverability of the costs associated with the instruction of experts from the losing party.

The technique of hot-tubbing (which developed in Australia) has also been introduced to permit (but not require) expert witnesses of the same discipline to give evidence concurrently at the direction of the judge i.e. whether or not the parties agree (CPR Part 35). The technique involves hearing evidence concurrently from the experts in a particular discipline, rather than having each expert give evidence and then being cross-examined separately. In such circumstances at trial, the experts will be sworn in at the same time and the judge will chair a discussion between those experts. Counsel is permitted to join in the discussion and can put questions to the experts, and the experts can put questions to each other.

As Jackson LJ noted during a pilot of the new technique, hot-tubbing is intended to provide quicker resolution, be better for experts, provide costs savings in terms of trial time and make it easier for judges to understand complex technical evidence. However, the use and success of hot-tubbing is yet to be seen. Experts will need to be fully familiar with the subject matter, which will become much more important than how good they are at performing in the witness box. As important to the successful outcome of this initiative are judicial resources. In the 'hot-tub', there will be much more focus on the judge himself, and their own understanding of the points in dispute. Therefore, a judge who has not undertaken such a detailed examination - possibly due to lack of time - may well be less inclined to use the new approach.

Small claims track?CPR Part 27 sets out the procedure for dealing with claims which have been allocated to the small claims track and limits the amount of costs that can be recovered in respect of a claim which has been allocated to that track. In a claim for personal injuries, the small claims track is the appropriate track where the claimant has a reasonable expectation of recovering less than £1,000 in damages for his injuries.

In other types of claim (such as housing disrepair or claims for property damage) the small claims track limit has been increased from £5,000 to £10,000. This increase coincides with current speculation that the personal injury element of the limit for personal injury claims may also be increased (from £1,000 to £5,000).

CPR 27.5 confirms that for small claims, no expert may give evidence, whether written or oral, at a hearing without the permission of the court. In practice, expert evidence is usually limited to paper. No oral evidence is usually permitted. The ability to recover disbursements associated with the instruction of an expert is limited. Going forward, cost recovery is likely to become even more limited - or indeed, exceptional.

The amount that can be recovered for an expert's fees in a case proceeding through the small claims track is now limited to £750. It is anticipated that courts will continue to take a robust approach to experts' fees.

Fast track

CPR Part 28 sets out the procedure for dealing with claims which have been allocated to the fast track. The fast track is the normal track for any claim where:

• the small claims track is not the normal track;

• the claim has a value up to £25,000; and

• the court considers (amongst other factors) that oral expert evidence at trial will be limited to one expert per party in relation to any expert field and expert evidence in two expert fields.

(The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track.)

When the court allocates a case to the fast track, it will give directions for the management of the case and set a timetable for the steps to be taken between the giving of the directions and the trial, which will include expert evidence. In practice, a defendant is regularly restricted to the claimant's evidence, subject to being allowed to put written questions about the claimant's expert's report ("Part 35 questions"). Any answer to such questions will, of course, be treated as part of the expert's report. As is the case now, the party who originally instructs the expert to whom questions are put becomes responsible for that expert's fees for replying to the other party's Part 35 questions.

Low value motor claims?Currently, low value motor claims valued up to £10,000 are managed in accordance with the pre-action protocol for personal injury claims in road traffic accidents (the RTA Protocol), which was implemented on 30 April 2010.

Such claims are processed through an online web-based claims portal. That portal supports the RTA Protocol by way of an electronic infrastructure that allows the safe transmission of information.

The RTA Protocol is due to be extended at the end of July 2013. Despite the fact the revised protocol remains in draft from (and may not be signed off by the Civil Procedure Rules Committee until as late as June 2013), the protocol is set to be vertically extended to apply to motor cases valued up to £25,000 notified on or after 31 July 2013.

The revised RTA protocol provides for the claimant to obtain a medical report. The instructed medical expert will be required to identify within the report the medical records that have been reviewed, as well as any additional medical records also considered relevant to the claim. Thereafter, the claimant must check the factual accuracy of the report, as once sent to the defendant, there will be no further opportunity for the claimant to challenge the factual accuracy of the report before it is disclosed.

A subsequent medical report from an expert who has already reported must be justified. An example might involve a case in which the claimant is receiving continuing treatment or has not recovered as expected in the original prognosis.

During the consultation period surrounding the extended protocol, defendants frequently observed that many experts do not appear to properly consider medical records or review them at all.

A further compliant often heard is that medical experts appointed on behalf of claimants produce generic reports, recycling predictable and routine prognoses. It is hoped, therefore, that any new requirements imposed by the extended RTA protocol will improve the quality of expert evidence put before the court in all claims (regardless of their value). All experts' primary duty remains to the court. It continues to override any obligation to the person who has instructed or agreed to pay them (CPR 35.3).

With the philosophy of Jackson in mind, we now know that the court will sanction any party who fails to comply with a court timetable. Experts must be able to comply with the requirements of that timetable.

It is, therefore, imperative that those who instruct experts inform them of the precise detail of that timetable. If need be, the expert should ensure that those instructing him provide details of the timetable. An expert's failure to comply with the court timetable could result in that expert's fees being disallowed or worse, in cases where that failure has cause loss or delay elsewhere; to that expert being called to court to explain that failure.

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