OFFICIAL Referee (OR) Court lawyers could lose the right to call their own expert witnesses if proposals by OR judges to have their own court-appointed experts are accepted by the Government.
The OR judges, who hear high-value technical cases in construction, engineering and environmental law, anticipate disagreement among lawyers over their proposals but argue that their ideas will benefit litigants by cutting the time and cost of high-value litigation.
Judge Anthony Thornton QC, an architect of the proposals, says: “The burning issue would be whether they can call their own evidence to undermine the court-appointed expert's report, and subject him to cross examination.”
Thornton says: “Some lawyers will particularly disagree if the power will be used to exclude them from calling their own experts.”
He says the proposals stem from the increasing delays, longer trials, and “horrendous costs” in the court.
Currently, the court can appoint an expert only if all parties agree. The changes will allow the OR Court to appoint its own expert on “basic technical issues”, and then to decide whether parties can call their own experts, says the judge.
Parties would receive a copy of the court expert's report under the proposals, he says.
James Hudson, chair of the OR Solicitors Association and partner at Bristows Cooke & Carpmael, says: “In simple cases it might work, but in more complex cases it might be difficult.”
He adds: “The issues of cross examination and appeal are important.”
The OR judges proposed an amendment to Order 40 to the Lord Chancellor's Department to effect the change.
Thornton says they believe the idea anticipates likely recommendations from Lord Justice Woolf, who is understood to favour court-appointed experts, particularly for personal injury cases.
Few lawyers know of the proposals as the judges were waiting for the response from the LCD before consulting the profession.