Fifteen years of the Civil Procedure Rules

Since the implementation of the Civil Procedure Rules (CPR) in 1999, 15 years have passed, allowing the courts, lawyers and experts to get to grips with the various changes and their implications. With the CPR, a number of principles intended to ensure access to justice which was "just, fair, appropriate and effective" were operationalised. In particular, part 35 - experts and assessors - addressed the responsibilities and actions of experts and how they could contribute to the above values.

In July 2014, the authors, in conjunction with the Expert Witness Institute, surveyed a small number of experienced experts to ascertain their views and experience of the CPR changes, with regard to experts (For more information, see Hugh Koch's article 'Getting the right balance? How to obtain or provide reliable expert evidence' in Solicitors Journal Expert Witness, February 2014). Nine questions were put to them. Twenty-one experts responded.

Expert opinion: the questions

1. In general, do you think the implementation of CPR has led to improved access to expert evidence (fairness, cheaper, quicker, easier to understand)?

2. Have experts been more focused on restricting evidence to 'what is reasonably required to help resolve proceedings'?

3. Are experts restricting their evidence to evidence which is 'within their expertise'?

4. Is the process of making written questions to experts working?

5. Is the process of getting answers to written questions from experts working (timely, helpful/accurate)?

6. Are single joint experts being used frequently enough as was envisaged?

7. Does the content of reports reflect increased independence of experts and increased responsibility to the court?

8. Do reports adequately reflect the range of opinion?

9. Does the Joint Opinion process work (clarifying different opinions, maximising apparent agreement, helping resolution)?

Expert response: the answers

The presentation of the responses is not intended to be numerical based as the sample size is small; we have detailed them as an approximate yes and no percentage ratio and given a narrative explanation.

1. In general, do you think the implementation of CPR has led to improved access to expert evidence (fairness, cheaper, quicker, easier to understand)?

Yes (50 per cent); no (50 per cent)

• A mixed response, as might be expected, especially given the generality of the question.

• A proportion of the experts who thought changes had not been implemented well had not had a great deal of experience of medico-legal work prior to 1999.

2. Have experts been more focused on restricting evidence to 'what is reasonably required to help resolve proceedings'?

Yes (60 per cent); no (40 per cent)

• More focused questions on narrower issues referring to experts.

• Personal practice has improved but 'restricting evidence' can be a double edged sword - only pursuing the information 'needed' may lead to complacency, incompleteness and reduced thoroughness.

• However, it was felt that greater succinctness on the part of lawyers results in more useful, focused answers from experts.

3. Are experts restricting their evidence to evidence which is 'within their expertise'?

Yes (60 per cent); no (40 per cent)

• It was widely thought that experts already (pre-1999) restricted their evidence to information 'within their expertise'.

• However, the encouragement to maximise this was thought to be helpful. One particular example of how orthopaedic and psychological and psychiatric experts address chronic pain was mentioned. In this area, both professions attempt to explain 'functional overlay' and have a view on each other's explanations, sometimes accurate and sometimes not.

4. Is the process of making written questions to experts working?

Yes (60 per cent); no (40 per cent)

It was felt that this process was under-utilised and should be a priority.

• Use of written questions clearly depends on the size and complexity of the case and also the conciseness of the lawyer.

5. Is the process of getting answers to written questions from experts working (timely, helpful/accurate)?

Yes (50 per cent); no (50 per cent)

• A variable response but largely positive.

• It was thought that high quality experts should (and do) provide timely and succinct responses to sensible, concise questions from lawyers, both for the claimant and for the defendant.

• This was compared and contrasted with the usefulness of a further examination. There were advantages in both approaches.

6. Are single joint experts being used frequently enough as was envisaged?

Yes (10 per cent); no (90 per cent)

• Responses indicated that single joint expert instructions are not as frequent as initial CPR recommendations predicted, although experts had a largely positive view of this mechanism.

• Low frequency means a lack of opportunities to develop the necessary skills of being a single joint expert: many of the experts surveyed had had little or no experience of a single joint expert instruction.

7. Does the content of reports reflect increased independence of experts and increased responsibility to the court?

Yes (40 per cent); no (60 per cent)

• Experts were ambivalent about responding to this general, but crucial, question, perhaps in case it reflected negatively on their pre-1999 practice.

• Experts believed themselves to be 'responsible' and 'independent'.

8. Do reports adequately reflect the range of opinion?

Yes (20 per cent%); no (80 per cent)

• It is thought that no real change has occurred here.

• One issue raised was whether a range of opinion should be made explicit in the expert's report or whether it should be made clear that the final opinion has arisen from an implicit consideration of alternative views.

• In many cases, the typical range of opinion is well under range of opinion, to include pain-related disorders, is appropriate to state explicitly.

9. Does the Joint Opinion process work (clarifying different opinions, maximising apparent agreement, helping resolution)?

Yes (60 per cent); No (40 per cent)

• It was widely acknowledged that since 1999 experts have improved in the quality and robustness of their opinion-forming and this is reflected in the greater effectiveness of the joint opinion process.

• An inadequate pre-meeting agenda and focus of discussion reduces the utility of the joint opinion process.

Litigation culture circa 1990s

Those whose memories actually reach back as far as the highly adversarial litigation culture of the 1990s know that reform was well overdue and met the changes brought by the CPR with positivity. Lord Woolf's historic aspirations were embodied finally in the CPR, which came into effect in April 1999 and have resulted in significant change and even more opportunity for further change.

This small survey illustrates a 'curate's egg' assessment of the results of the CPR, 15 years on, with many aspects indicating 'the jury is still out'.

The issue of what evidence is required in reports (by individuals or single joint experts), follow up questions, Part 35 questions and, where appropriate, joint opinions, points to the needs for a greater emphasis on, and understanding of, which areas of evidence are inherently unreliable.

Current research by one of the authors, Dr Hugh Koch, will hopefully address this issue in two of the front line specialities, psychology and psychiatry and orthopaedics, and result in experts 'honing' their methods of assessing injuries. This will, in time, help both lawyers and experts ask and answer questions with greater specificity and clarity.

Following this, greater clarity - for example, in these two specialities, in areas such as chronic pain, functional overlay and abnormal illness behaviour - will help experts to not only stay within their own expertise, but also recommend the appropriate additional speciality report where appropriate.

The adversarial culture of litigation still often supports the use of expert's reports on both sides and is wary of the single joint expert concept and practice. One of the authors, Dr Hugh Koch, has had experience of both forms of expert instruction and is of the belief that single joint expert opportunities will eventually increase in certain cases, alongside greater explicit understanding of the areas of unreliability referred to above.

The general view in the survey was that ranges of opinion are more implicit than explicit in expert evidence. Many experts believe that to explicitly describe the possible range of opinion and then decide what, in their own opinion, is the most logical is pedantic and repetitive. The judge and counsel in any one particular case may well see this issue differently.

Participants in the joint opinion process have largely found the experience useful and leading to greater clarity and focus. A balance between a well-constructed standard agenda and specific, case-related questions needs to be struck.

The first 15 years of CPR, as reflected in this small survey, indicate some positive change which Lord Woolf would find gratifying and bodes well for further change and compliance for the future.

For more information, see further work by Dr Hugh Koch.

Dr Hugh Koch is a chartered psychologist and director of Hugh Koch Associates LLP. Drs Tracy Thorns, Paul Elso and Faye Fraser are also chartered psychologists in the firm.

www.hughkochassociates.co.uk

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