Getting unhappy experts out of bed
Expert witness work is no longer a risk-free activity, writes Mark Solon; experts and solicitors alike must be aware of the necessary due diligence to undertake and the potential consequences of giving evidence that is found wanting
Experts must be feeling that it's not
worth coming out from under the duvet because of developments over the past two or three years. They must be reminiscing about the old days of fees determined by the length of a piece of string and timetables that could be changed. Experts are now liable in negligence and for breach of contract, following the decision in Jones v Kaney  UKSC 13, and fees in publicly funded cases are now capped. Perhaps experts should stick with the day job.
What can instructing solicitors do to help?
Let's start with the contractual position. A client instructs a solicitor to conduct litigation on their behalf, and if an issue arises requiring expert opinion evidence, the solicitor will generally contract with an appropriate expert and charge for the fee as a disbursement, which will eventually be paid by the client or through legal aid.
Instructing an expert is no longer a risk-free activity. The Jones decision may well have implications for the relationship between solicitor and expert. Clearly, the solicitor will want to avoid liability for any inadequacies of the expert, so must be more careful in the proper selection of the expert in the first place. There must be due diligence to ensure the expert has the experience and qualifications appropriate to the issues in dispute. References should be taken and the expert must have been properly trained, particularly in the mandatory knowledge of the court protocols and so on.
The expert must be properly instructed to avoid any counterclaim and the terms and conditions of engagement should anticipate problems, as the decision includes breach of contract as well as negligence. The expert should produce evidence of insurance to show cover for both negligence and breach of contract.
As part of the legal aid reform programme, the Legal Services Commission, now the Legal Aid Agency (LAA), introduced maximum rates for certain types of expert witness. The LAA has the power to increase the fixed fees if it considers it reasonable due to exceptional circumstances.
This would include where the expert's evidence is key to the client's case and either:
The complexity of the material is such that
an expert with a high level of seniority is required; or
The material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
In other words, not in most cases. Payments on account for experts fees will be rejected if they exceed the specified rate, unless a prior authority has been granted showing that the case is exceptional.
Shaken baby cases
It now not uncommon for experts to go before professional bodies if there are problems with the opinions they have expressed. For example, Dr Waney Squier was recently struck off the General Medical Council (GMC) register for her conduct as an expert witness in shaken baby cases. Many experts must be wondering if it is worth doing the work, as the potential consequences of giving evidence that is found wanting can be catastrophic.
The tribunal found that Squier 'deliberately and dishonestly misled the courts by putting forward theories insufficiently founded upon the evidence, by giving evidence outside [her] own field of expertise, and by misquoting research and literature so that it appeared to support [her] opinion when it did not.'
Her supporters, such as human rights lawyer Clive Stafford Smith and barrister Michael Mansfield QC, argue that she was struck off for challenging the theory of shaken baby syndrome, and claim that this case will have a serious adverse effect on the administration of justice and lead to an increase in wrongful convictions of carers.
Was the case about effective regulation or preventing challenges to the mainstream theory? What effect will it have on experts? Was the removal from the register about the science?
The GMC deliberately did not look at the validity of shaken baby syndrome, and accepted that those who reject the triad of symptoms typically used to diagnose it may be proved right in the future. Perhaps the GMC did not look at the syndrome as the case had nothing to do with Squier, who had appeared for many years as a prosecution witness against accused parents before beginning to appear for the defence, 'changing her mind'. Experts should not be deterred from challenging the consensus: all experts have a duty to acknowledge the range of views in their field of expertise.
It is uncertain how far an expert has to go to provide a balanced view of the research. For example, Squier argued that her reports would be far too long if she included all research. Lawyers now need to be careful to ensure the expert report has all relevant references. There were also discussions on experts having to stay within their area of expertise, but this is more easily said than done, particularly for medical experts, as there are often overlaps and unclear boundaries. Again, lawyers need to remind experts of this duty and check they have not strayed too far outside the area where they are entitled to give opinion evidence defined by their qualifications and experience. We all remember the Sally Clark case, where Roy Meadow, the expert paediatrician, did go beyond his competence.
The three most prominent UK experts who have been researching and critiquing shaken baby syndrome - Dr Irene Scheimberg, Dr Marta Cohen, and Dr Squire - have all faced difficulties, including police investigations against them and complaints to the Human Tissue Authority. The feeling is that there are now few experts, possibly none, who will criticise the received wisdom on shaken baby syndrome. I understand Squire will be going to the High Court to appeal.The problem may be exacerbated by the effect of the Jones case. This and the Jackson reforms in civil matters, providing courts with the ability to limit and budget expert evidence, may mean many experts in controversial areas will be reluctant to leave their day job.
Expert evidence guidance
However, if the expert does get out of bed and accepts instructions, there is some useful guidance in the judgment of Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland)  UKSC 6. Who would have thought that a bruised wrist from a fall on an icy footpath in 2010 would have led to the Supreme Court giving useful guidance on when expert evidence would be allowed in a civil court?
Because the case started in Scotland, the judges refer to skilled witnesses - the Scottish term for expert witnesses - but the principles apply throughout the UK. In essence, the judges recognised the need to regulate expert evidence, which can be highly influential and difficult for the other side to test unless assisted by their own expert. They set out guidance regarding the admissibility of expert evidence, the responsibilities of the legal teams and the court in relation to such evidence, and the importance of economy in litigation. They said experts may give both opinion evidence and expert evidence of fact, drawing on their own knowledge and experience of the subject matter, including the work and literature of others.
The four considerations which govern the admissibility of skilled evidence are set out at paragraph 44 of the judgment. Ultimately, it's for the court to decide, but an expert should be able to answer yes to all four questions:
Will your expert evidence assist the court in its task?
Do you have the necessary knowledge and experience?
Are you impartial in your presentation and assessment of the evidence? and
Is there a reliable body of knowledge or experience to underpin your evidence? SJ
Mark Solon is chairman of Wilmington Legal and founder of Bond Solon