Narrowing down the issues
25 November 1997
Marion Golding says that success lies in opposing expert witnesses identifying areas where they can and cannot agree. Marion Golding is a senior litigation solicitor at Lovell White Durrant.
Lord Woolf's proposals for expert witnesses, now endorsed by Sir Peter Middleton, have also been accepted by the Lord Chancellor, Lord Irvine. It is only a matter of time before the new procedures are introduced. How different will this Brave New World be in practice?
One big change is the emphasis (despite strong opposition from practising lawyers) on appointing a single expert, except for in "large, complex and strongly contested cases". Single experts would be appointed by mutual agreement between the parties, and on joint instructions. If the parties fail to agree, a witness would be appointed by the court.
The idea is that a neutral expert could present to the court the range of possible expert opinions, together with their view of them. Partisan and extreme positions put forward by separate experts would become a thing of the past.
The danger lies in the assumption that an expert can truly be impartial. Every individual has their own personal opinion. Experts are no different and there is no special reason why one expert opinion, within a reasonable range, need be more valid than another.
And what can the party whose case suffers most from the opinion of the single expert do about it? Lord Woolf might say settle. But they might validly believe that their case is good and that the single expert has got it wrong.
There is always cross-examination. The cross-examiner may need an expert to help them prepare their cross-examination. No matter how well it is done, it is unlikely to repair all the damage done by the first expert.
Would they be able to call their own expert to give evidence. Even if they could afford it, it looks as though that will not be an option where a single expert has been appointed. The court is likely to refuse leave and certainly will not allow the costs to be recovered.
As for choosing a suitable single expert, there was a suggestion that the Legal Aid Board might develop panels of accredited experts from whom the parties or judge could choose.
Some might say this would have been a great incentive for the parties to agree jointly on an expert rather than risk having one imposed. This idea will presumably not be going forward, at least for claims for damages, if legal aid will no longer be available for such cases, as the Lord Chancellor has proposed.
Where two experts have been allowed by the court, what about greater co-operation between opposing parties' experts? This is surely the right way forward, while preserving the adversarial nature of our pro ceedings.
We all applaud the emphasis on duty to the court, elucidating the range of opinion, avoiding suppression of facts and narrowing the issues. There is still concern about disclosure of communications to the experts and how that will work in practice.
Like many of Lord Woolf's proposals, the idea of 'opposing' experts identifying exactly where they can and cannot agree is already in use in many courts. Does it work well? In my experience the answer is that it does, but only up to a certain point.
It depends very much on the approach of the lawyers and the subject matter of the case. In the right case there should be plenty of scope for the experts to narrow down the issues. In other complex cases that can be much more difficult.
For example, in a recent trial, we had directions for joint instructions to experts a without-prejudice experts' meeting without lawyers, and a joint report on areas of agreement and disagreement.
Lord Woolf would certainly have approved. In the event, our opponents produced an unagreed set of instructions to their expert, in addition to the agreed set.
When the agreed report emerged, it was accompanied by an unagreed extra report from their expert. Our opponents also insisted on putting before the court all the interim reports, in addition to the version that had been agreed. The case settled and not because of the expert evidence. The judge never had to consider the expert evidence.
We trust that a post-Woolf judge would simply have refused to even look at anything other than the final agreed report.
As ever, it lies in the judges hands to make a success of these procedures.