The catch-all solution?
23 May 1995
During Lord Woolf's review of the civil justice system it has been suggested that the current system of expert witnesses should be replaced by one of using a single court appointed expert.
Questions have been raised about the cost of experts, the time which they take up in trials and their perceived lack of independence. A single court appointed expert is expected to solve these problems. However, for several reasons, it is not obvious that a single court appointed expert would improve the system at all.
The theory is that a single expert would reduce the number of experts appointed, and that with fewer experts working on a case the costs should be less. But it is undoubtedly the case that many litigants and their solicitors would appoint 'shadow' experts to second-guess what the court expert will conclude and to provide material for extensive cross examination by their counsel, if indeed this would be allowed.
In the simplest scenario, if both parties to an action did this there would be three experts working on a case instead of two - an increase in the overall costs for experts' fees.
It is hard to understand why the parties would be happy to instruct one expert between them when they do not do so already under the current system. On the application of one of the parties, the court has powers under Order 40 to appoint an expert. The parties can choose whether they use single experts or not and at present they choose to use experts on both sides rather than a court appointed one.
Clients and lawyers at a recent Woolf seminar said that they did not believe the use of single court appointed experts would improve the situation. As Lord Woolf's reforms are aimed at improving access to justice it would seem to many clients that even if costs savings were attempted via the single expert route the overall effect would not be to their liking.
A single court appointed expert may also cause other problems. Apart from the obvious problem of the choice of expert, the timing of the appointment would be difficult to decide.
Presumably, an appointment would be made on the judge's directions. But how would the expert be instructed and what would the terms of reference be? A difference in opinion on the facts of the case may be central to the issues. In this case do the parties both instruct the expert who then prepares two alternative reports based on different scenarios? Perhaps the parties would agree the instructions, but this will just add another negotiation step to litigation. Or do the experts make their own determination as to which facts are relevant, a function that is surely that of the judge and not the expert?
Another problem would be the timing of the expert's report. A report by an expert can often shed sufficient light on a case that it settles before ever getting to trial. There may be missed opportunities for early settlement if the parties are required to wait until the court appointed expert's report has been produced. Presently, instructing solicitors and counsel have the benefit of discussing the general themes of an expert's report as it is being drafted. This highlights issues and gives an indication of the expert's views on the merits of the case. Delays will ensue as parties wait for the court appointed expert's report to be produced and this benefit will be lost.
The other perceived problem with the current system is that of the expert's lack of independence. However, is this a real problem or is it imaginary? Solicitors are in a similar situation. They are officers of the court but have a duty to their clients. If experts are truly biased then this can be dealt with at trial. In such a case the judge will question the expert's ability to view the facts objectively and reach independent opinions and will take this into account when making his judgement. If we entrust the decision process in trials to judges we should surely be able to expect them to deal with biased experts. I doubt if incompetent experts will survive in today's demanding litigation market-place anyway.
While the civil justice system needs review it is important that we give clients what they want. To force single experts onto disputes against the litigants' wishes with little benefit can hardly be an improvement. Focusing on the role of experts is a red herring - there are other areas under scrutiny which are much more likely to achieve the desired results.
David Lee is a chartered accountant and co-founder of Lee & Allen, which specialises in fraud cases and assessing quantum in commercial litigation.