Working together

Experts have always felt somewhat beleaguered, if not put upon, and blamed for everything from the high cost of civil litigation to the sometimes disappointingly perverse result. Most of this impression may be quite unjustified, but just occasionally the poor expert may have a point.

The introduction of CPR in the late 1990s, and of course particularly part 35, has gone a long way to codify and clarify the role, responsibilities and rights of expert witnesses, and has been an enormous help to experts in carrying out their duties to the courts.

But some challenges for experts seem perennial. They fall essentially into two groups: poor instructions from instructing solicitors, coupled with lack of information and poor communication, and weak case management by the courts.

Both are dealt with in the CPR, in part 35, its practice direction and the protocol, but translating the words on the page into a change of culture and procedure seems to be difficult.

Significant reductions in both delay and unnecessary costs could be made if experts could be sure of being instructed in plenty of time to produce the required analysis and report; be sure that they had all essential documents early (and no superfluous documents, which have to be read if they're provided even if useless to the drafting of the report); and be sure that they had immediate notice of all deadlines, court timetables and relevant court orders.

It shouldn't be too much to ask, but time and again our members report difficulties because these are not forthcoming. The CPR it seems is too frequently honoured in word only. In the two weeks before sending in this article I have heard senior lawyers (barristers and solicitors) and mediators express the 'off record' view that 'of course' CPR is 'all nonsense'; experts are not and cannot be independent and impartial, and, notwithstanding CPR part 35, experts 'inevitably' adopt a negotiating/advocacy stance.

So far, certainly since the introduction of CPR, all the other experts I have encountered, come up against, or talked to at academy training courses or members' meetings, serve as robust rebuttals of this cynicism, and I am glad to report thus. But challenges still remain however robustly we experts might confront them.

For example, the protocol for the instruction of experts to give evidence in civil claims (closely mirroring the academy's previous guidance) makes it clear that court ordered meetings of experts are to be largely in the control of the experts: 'Those instructing experts must not instruct experts to avoid reaching agreement.' It also states that questions to experts must be in writing and for purposes of clarification only. Our members report frequent, and sometimes pressing, abuses of both these provisions.

Experts also face, as they always have done, continued downward pressure on their fees. The Ministry of Justice was last year already looking for ways to reduce the Legal Services Commission's expenditure on experts in publicly funded cases.

With the change of government and general programme of cuts, the sought-after reduction is even greater and a second consultation on the subject largely repeats the previous one. While many experts do no legal aid or publicly funded work, there remains a suspicion that fee reductions in this area might one day be used to justify a general reduction. In the meantime, experts' business overheads are not reducing.

Pay off

But we also face some new challenges to the way in which we work. The Jackson report has recommended 'hot tubbing' of experts, both to save costs and to assist the judge in better understanding complex expert evidence.

Experts who have already been immersed in arbitration hot tubs seem generally in favour of the process '“ as long as the judge (or arbitrator) is in control of the procedure and does not allow, or encourage, experts to become advocates for 'their' side, or allow lawyers to intervene or attempt limits on what 'their' experts may say.

We, together with the judges, are going to have to learn exactly how to behave properly, in line with our overriding duty to assist the court in understanding technical matters while avoiding understandable impulses to be 'helpful' in discussion and overstep our role.

Finally, no discussion of the challenges currently facing exerts can ignore the most important elephant in the room: the recent Supreme Court case of Jones v Kaney, on the question of immunity of experts from civil suit in respect of their expert evidence. The underlying details are not especially important, although as publicly reported they do not suggest that the expert in question was necessarily a role model for others. The facts revolve on the conduct of a meeting of experts.

The academy naturally has a keen interest in the outcome of the case, so as to be able to advise and instruct its members, but we have carefully made no statement as to any preferred outcome, deciding instead to wait for the Supreme Court's decision.

However, there are several questions prompted by the very fact of the Supreme Court hearing, which ought to be addressed, in CPR if not elsewhere, by the simple existence of the question.

1. The academy acknowledges that other professions, notably the Bar, have lost similar immunity and that the tide of political opinion does not necessarily support continued general immunity for professional witnesses; but the current immunity stems, apart from some public policy reasons which may or may not be considered redundant, from the expert's status as a witness, under oath or affirmation: so would removal of the immunity mean that expert witnesses would be viewed and treated differently from all other witnesses?

2. Would demonstrable compliance with the letter, and spirit, of CPR part 35, the practice direction and the protocol, be seen as sufficient (or, at least, good) defence against any civil action?

3. What would the position of the single joint expert be with two notional 'masters', either of whom might, in disgruntlement, feel he has a cause in action?

4. Would the courts, and in particular the case management judges, be more particular in ensuring that instructing solicitors comply with their obligation under part 35 et al, and especially their instructions and guidance to experts?

5. Would the current position persist whereby experts are currently vulnerable to:

• adverse personal wasted costs orders if they cause unnecessary delay or cost;
• adverse judicial criticism to which they have no right of reply;
• complaints and/or disciplinary proceedings from their primary professional bodies?

On the other hand, if the current immunity were to be upheld:

1. What is the expert's 'evidence'? Given that most experts never, as a welcome result of CPR, appear in court under oath, but their reports are subject to the expert's declaration and a statement of truth, would immunity extend to submission of that expert report? If so, from what date?

2. Does it cover their discussions at any meeting of experts, and the jointly signed memorandum of agreement or otherwise at that meeting?

3. Is the jointly signed memorandum of the meeting of experts part of the expert's 'evidence' and covered by the expert's declaration included in his first or main report? Or not?

4. Does the immunity cover any ancillary, supplementary or additional expert reports, or answers to written questions from the other side for 'clarification' as permitted under part 35?

5. Does it extend to discussions, and possible reasonable, justifiable, changes or modifications of opinion, at a meeting of experts?

6. Would immunity cover 'helpful' explanations volunteered while being hot-tubbed?

7. Would courts, and in particular case management judges, be at pains to exercise their powers in respect of experts, and their theoretically available assistance to experts, more readily?

All these are open questions. Once the decision is known we will of course, with the assistance of our judicial committee, be drafting suitable advice for our members, and experts generallly. Whether or not any removal, in whole or in part, of the existing immunity from civil suit will deter good, ethical highly qualified experts in their fields from acting as expert witnesses remains to be seen.

The academy remains dedicated to training and supporting those who do continue to act, in the cause of cost effective justice. We are sure that some good experts will continue to do so, but we cannot predict which ones or how many.

We will continue to assist and advise those of our members who decide to stay the course.

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