BAR TALK

The question of how far a single joint expert witness can be cross-examined was the subject of a recent Court of Appeal hearing. And the answer? No, you can't cross-examine. Which has raised quite a few hackles among tough barristers.
The matter in question arose at the Court of Appeal before Lord Woolf, our venerable Lord Chief Justice, and involved a claimant in a medical negligence action appealing for a conference with a joint expert witness, but without a defence lawyer present. Woolf ruled that a lawyer was not necessary (shurely shome mishtake), adding that cross-examination of a joint expert would not normally be appropriate.
Is it really in the interests of justice for a barrister to be refused the right to cross-examine a single joint expert who has come down against his side? Joint witnesses are a good idea and can save considerable court time, but surely this is one step too far, particularly when one considers the varying quality and lack of regulation governing expert witnesses.
Take one recent copyright infringement case, overseen by Mr Justice Jacob. His judgment included such a terrifying attack on the expert to warrant a mention. Reading the judgment reveals a catalogue of errors by the expert, a certain Mr Wilkey. These included confusing a trapezium for a triangle, failing to read an important document exhibited with his report and misreading a drawing. And so on until the end of the judgment, when Judge Jacob accused him of being “biased and irrational”.
Surely now is the time to start thinking seriously about a register of expert witnesses and required professional qualifications, as well as sanctions that can be imposed against those like Wilkey, who, as Mr Justice Colman concluded, had failed in their duty to the court. After all, we have Lord Phillips, Master of the Rolls, who said last month that “the expert witness has all too often been the Achilles heel of the justice profession”.
Confusion in the High Court
Barristers could be forgiven of late for a certain amount of confusion when appearing in the High Court. Several reports hint at a certain disunity these days in the conduct of judges in the various divisions of the High Court, particularly in the Commercial Court and the Technology and Construction Court.
The confusion has arisen as a result of an apparent ad hoc approach to implementing Woolf's reforms. The impression given is that some judges feel that, because they helped set the standards for his reforms, they can be somewhat flexible in their application of the now not so new rulebook.
Feedback on barristers' experiences of case management conferences (CMCs) in the Commercial Court, for example, suggest that some judges are not taking them as seriously as Woolf would like them to. For instance, parties in the ongoing Sumitomo case – Ashurst Morris Crisp and Clifford Chance – agreed the way forward, so there was no need for heavy CMC from the court. Of course, this is not the case in every Commercial Court action, but is at least commonplace in those involving the larger firms. Clearly, judges consider Herbert Smith et al to be above getting entangled in petty bickering and to be able to thrash out agreements among themselves.
While most reports suggest that this is in direct contrast to the rest of the Queen's Bench, where masters and judges take an active role in CMCs, in the Commercial Court at least it is clearly not just barristers who are gentlemen.
Alternative dispute resolution (ADR) is another case in point. Judge Colman, a senior judge in the Commercial Court, once famously dispatched to ADR an energy dispute he had already ruled on. Since that landmark day, Judge Colman has been no less zealous in whisking cases off to mediation.
Other judges in that court, however, are rather less enthusiastic when it comes to ADR. Litigators are required to tick a box on a court form on whether they believe a case should go to litigation, and some judges – without respect for the Word of Woolf to encourage ADR wherever possible – take the litigator's response at face value. Given the scepticism with which many lawyers continue to view ADR (ie that it generally doesn't save time or money), you can guess which box they tick.
brendan.malkin@thelawyer.com