A witness's opinion is only admissible with leave from the court, and such leave should only be given if necessary “to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge [or jury]”. (R v Turner (Terence (1975) cited with approval by Wilberforce LJ in R v Jordan 1977).
But increasingly we have been ready to accept that any matters of complexity are “likely to be outside the experience of the judge”. There are good reasons for this. For example, trials involve increasingly complex issues and, with so much at stake, the fewer issues which are left entirely to a judge the better.
It is always going to be preferable to have as many issues covered by evidence – and, therefore, subject to a degree of control by the parties and their solicitors – as possible.
In the US, flourishing businesses have developed to provide professional expert witnesses, particularly doctors and accountants, and to coach experts prior to giving evidence.
These factors, combined with the demise of the summons for directions as a useful check on proceedings, have led to expert witnesses being used more and more. One has only to look at the trend in solicitors' negligence cases for parties to use expert solicitors to give evidence on the nature of the solicitors' duty of care and its alleged breach, to see how swiftly their use can grow.
However, in this case, a backlash against experts has begun. The trend towards experts appears to have been nipped in the bud, and now solicitors “ought not to expect that expert evidence will necessarily be available to support their action in the event that they are sued” (Charles Gardner – The Lawyer, 19 November 1996).
It seems that the use of experts might have gone too far. There have been a number of recent cases where expert accountants have been called upon to perform arithmetic, which, although complex, is still within the grasp (probably at reduced cost) of solicitors who simply “do not have the time” to do it.
Cases like these are being recognised for the waste they incur, and the tide is changing independently of Lord Woolf's recommendation of neutral witnesses. As a result, a revival of the summons for directions, could be the best way forward. It would provide a court with a supervised and rigorously enforced opportunity to consider all the remaining interlocutory matters necessary to prepare a case for trial while saving costs, court time and delay. It should be the court that assesses the need and the parameters of any necessary expert evidence. There has already been a judicial call for a court power to order the restriction of the admission of expert evidence.
Lord Woolf's proposal that all communications between solicitors and experts be admissible in evidence might also lead to the adoption of a court protocol for instructing experts and put an end to solicitors seeking to influence (in whatever degree) the expression of experts' views.
It is clear that times are changing and solicitors must also adapt. If we do not, Lord Woolf may have something more to say on the subject.