Principle of least interest

Reforms to curb the excesses in litigation have put expert witnesses under increased scrutiny, as the Ministry of Justice and judiciary see controlling their use as a major factor in cutting cost and delay.

The reforms, which have put solicitors under increased pressure to determine costs at an early stage and meet tight timetables with harsh costs sanctions if deadlines are missed, have created tensions between them and the expert witnesses they instruct.

Together with funding cuts, the changes have combined to create a situation where justice in some case is at risk of being undermined.

Professional standards

The professional standards of expert witnesses have also came under the spotlight. Last summer in 'Justice for Sale?' an undercover investigation by BBC's Panorama, revealed the willingness of handwriting, CCTV and animal behaviour experts to breach their professional obligations and write dishonest reports in favour of the reporter, who was posing as a litigant in person, even when he had told them that he had broken the law. Only one out of the nine experts featured declined to provide the report requested.

Speaking at the 20th Bond Solon Annual Expert Witness Conference in November, former Bar Council chairman and leading barrister Tim Dutton QC, who had taken part in the documentary exposing the misconduct, said that in his experience "charlatan forms of behaviour" by experts was rare.

But, he said, conversations with circuit judges who dealt with low-level personal injury claims revealed their "critical and scathing" view of the "industrial scale" on which "so-called expert evidence" was given by doctors for claimants, particularly in whiplash cases.

The concern, said Dutton, was that experts were being used as 'hired guns' in cases that were expected to settle before trial because of costs. "In other words, the expert is free to report again and again in the hope most cases will settle," he said.

How far the reforms and funding changes have gone to undermine justice and the extent of abuse by experts is unknown. The vast majority are honest, tell the truth and comply with their duty to the court, but issues arise when experts are inexperienced, incompetent or lack integrity.

Funding pressures also have an impact. As Dutton told delegates, the problems are likely to occur in publicly funded cases, or where lawyers are working under a conditional fee agreement, or damages-based agreement. "Under-resourcing creates risk," he cautioned.

Some have called for greater regulation of experts, but this is not the answer. As Dutton pointed out, most experts are already regulated by their professional bodies and have a duty to behave with integrity and uphold the standards of their profession. A further layer of costly, time-consuming and complex regulation would benefit no one, even if the finances and political will for such a scheme were present.

Dutton called for a study, under the aegis of the Ministry of Justice, to discover the extent of abuse. If, after 12-18 months, it showed that abuse is continuing and widespread, the next step, he suggested, might be to make it an offence to 'knowingly fail to comply' with the duties set out in either the Criminal or Civil Procedure Rules.

Until that time, other remedies already exist to address the problem, including proceeding against an expert for contempt of court, attempting to pervert the course of justice or conspiracy to pervert the course of justice. If these were used, suggested Dutton, "it may only take one or two prosecutions for a salutary effect to be brought to the whole system".

Problems could still arise in relation to experts who are not in regulated a profession or where the witness is a one-off expert in some arcane area. Here, as Dutton suggested, it is up to the lawyers to maintain standards and ensure the expert is aware of and complies with their duties.

Other remedies to address the problem, suggested Dutton, are the existing offences of contempt of court, attempting to pervert the course of justice or conspiracy to pervert the course of justice. "It my only take one or two prosecutions for a salutary effect to be brought to the system as a whole," he said.

Speaking at the conference, the president of the Supreme Court, Lord Neuberger, commented on the required objectivity of experts. Without criticism, he opined that the notion of the "dispassionate detached scientist is something of a myth". Even very eminent scientists, he suggested, could "become very committed in their emotions and very one-sided in their approach to evidence".

But he also accepted that "the great majority of experts do their best to be objective and professional" adding that "for most of those experts their best is really pretty good".

Neuberger cautioned against the wisdom of some of the cost-cutting reforms, including the use of a single joint expert assisting both sides in a case. "One thing that worries me is if you have a single joint expert, that's who decides the case. Is the judge there only as a figurehead?"

He also questioned the use of 'hot tubbing' - where experts give their evidence and are cross examined together. More evidence on its effectiveness, he suggested, should be collected before it becomes standard practice.

Survey says

The results of a survey completed by 186 experts who had attended the conference demonstrated the increasing tensions and pressure that experts found themselves under.

1. Experts have come under pressure to change reports.

Of the respondents, 55 (30 per cent) said that over the course of the year they had been asked or felt pressurised to change their reports in a way that damaged their impartiality and objectivity.

Their experience ranged from being asked to remove sections of reports that were seen as damaging to the client's case, to being asked to re-write it in their favour. Others said that solicitors had refused to pay them if they felt they had written an 'unhelpful' report.

One said: "A leading firm of solicitors tried to pressurise me on more than one occasion as the client didn't like my conclusions." Another reported: "Solicitors were asking for the report to be changed materially to the client's advantage. Other solicitors were asking for quoted GP note entries to be changed. I always refused."

One expert reported overt bullying by solicitors, in an attempt to encourage them to put aside their overriding duty to the court. They said: "The solicitor had a weak case and was clutching at straws. The solicitor told me: 'You have a duty to the court to do as you are instructed by your solicitor'. I knew that was wrong. The solicitor threatened I would be liable for wasted costs."

A further expert reported how he had experienced the "salami technique of redaction [until] gradually the essence of my argument was lost".

More encouragingly, 69 per cent said they had never experience such forms of pressure.

2. Fears over hired guns.

Echoing the concerns raised by Dutton and others, an alarming proportion of nearly 45 per cent of respondents said they had encountered what they believed to be hired guns over the year. More reassuringly 101 experts (54 per cent) confirmed that they had never come across such a person in the course of their work.

3. Division over whether better regulation is needed.

Experts were divided over whether they thought better regulation to deal with the problems of fraudulent and dishonest behaviour perpetrated by some would make any difference. Some 44 per cent believed better regulation is needed, while 39 per cent said not.

4. Accreditation would be pointless.

As the government is considering the introduction of accreditation for experts undertaking soft tissue personal injury (whiplash) claims (see Mark Solon's article 'Are changes to RTA medical reports an accident waiting to happen?'), delegates were asked if they thought mandatory accreditation across the board would improve standards. Around a third (35 per cent) suggested it would have that effect, but a higher percentage, (39 per cent), felt it would make no difference.

5. Increase in instructions.

On the positive side, half of respondents (50 per cent) reported an increase in instructions in the 12 months to November 2014, up on the previous 12 months, during which 45 per cent reported an increase. Fewer experts reported a drop in work, 17 per cent, compared to 23 per cent in the previous year.

6. Static fee rates.

Fee rates were fairly static over the year, showing only a minor increase on the last year, rising to an average of £177 from £174 in 2013. The lowest hourly rate rose from £30 to £32 and the highest from £480 to £500.

For now, it seems that expert witnesses, as well as the government's civil litigation reforms, remain very much in the dock. The jury is still out on their impact on the justice process. SJ

 

Mark Solon is the managing director of Bond Solon

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