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8 November 2013
Expert witnesses and the lawyers who employ them face radical changes to the way they conduct civil litigation post Woolf. Whether there will be more experts or less, whether they will cost more or less, whether they will be easier to work with or more difficult, whether they will speed up the litigation process or create more delay- all are moot points. What is clear, however, is that the recent trend towards creating a recognised profession of expert witnesses is set to accelerate.
The new Woolf regime is, on the whole, in favour of expert witnesses. One of the aims of the reforms was to drive the so-called "cowboys" or "hired guns" out, leaving the work to impartial professionals. Effectively, this means the new regime is making a profession out of being an expert witness. But increasing regulation, rising competition for fees, and the unpredictable impact of the Woolf reforms are spreading confusion in the ranks of expert witnesses.
Under Woolf, judges can use their discretionary power to appoint a single expert witness. While the ethics of this have been the subject of heated debate among lawyers, the consensus among expert witnesses is that this is a positive move, since they predict that parties to high-cost actions will appoint experts as advisers to help them challenge the court-appointed expert. If this is the case, the Woolf reforms in effect introduce a new role of "expert adviser", who will act as a consultant for each side, commenting on the opinion of the court-appointed expert and providing input before the case comes to court.
Trevor Gilbert, chairman of national expert witnesses practice Trevor Gilbert & Associates, says: "Experts tend to prefer this work because it poses less threat to their reputation since they do not have to take the stand in court and can avoid the trepidation which accompanies cross-examination."
Gilbert says that contrary to popular opinion, specialist advice offered outside court does not give experts immunity from legal action, and he predicts that the cost of indemnity insurance will escalate. "I don't think it will be long before we see experts being sued by litigants who lose cases and blame it on the expert who advised them in the early stages of the case, because that early specialist advice is not privileged," he says.
Gilbert claims that one case, Stanton v Callaghan, heard in the Court of Appeal, establishes that expert witnesses are as liable to be sued for negligence as any other professional adviser outside of court.
Gilbert believes that Woolf's plan to oust cowboy witnesses will serve to create a new select group of professional expert witnesses: "We will see a decrease in the number of expert witnesses and a denunciation of hired guns and charlatans, who will be weeded out by the courts and professional bodies of experts, and only those experts possessing efficient systems - the large organisations such as the Mobile Doctors, who have 3,500 member doctors on their panel - will remain in practice."
One of the reasons for this is that experts' reports now need to be produced more speedily. Gilbert says that in 1991, the average turnaround for reports was six months, and that his own average in 1998 was 25 days, now down to 18 days.
Roger Clements, a gynaecologist and chairman of the education and training committee at the Expert Witness Institute, disagrees.
"There is a general feeling that more experts will come into the field because the work will come in on a time-scale that cannot be matched by the present number of experts," he says. "Experts will have to respond very quickly and be available for meetings. Therefore those with a long waiting list will tend to be discarded by both sides. Woolf wants the market to be more open, experts don't have to be consultants, and there will be opportunities for relatively junior people to come in."
Experts feel that the new reforms could make their work easier by forcing lawyers to assess the potential loss (quantum) earlier in the process and bring the expert in as an adviser at an earlier stage.
Forensic accountant Tony Levitt, partner in charge of RGL International's London office, says: "We have been instructed on a number of cases very close to the date of trial when one party thought they had a really good case of liability and didn't spend much time on quantum.
"When the case is about to go to trial a counsel decides the case is not so tight and we are asked to issue an urgent report on quantum at the last minute."
Clements also believes that with an increased number in the field, experts will be forced to reduce their fees as a result of increased competition and capped court fees.
However, not everyone foresees an explosion in the number of expert witnesses. Health and safety expert Bill Cassells, head of national expert witness company Cassells UK, predicts a dwindling number of expert witnesses. Cutbacks in legal aid, he argues, means that about 15 per cent of cases which would have required experts' reports will not now be brought. Cassells also claims fees will be reduced because lawyers and experts "now have to have an eye on proportionality".
One of the bodies that was set up to represent experts' fears that recent changes mean the courts are beginning to discourage certain types of experts.
Academy of Experts chairman Michael Cohen says: "I have heard of two cases since the start of Woolf of employment experts advising on future employment prospects of litigants, who have been told by the courts that their evidence is not permitted, and I have heard of road traffic experts also being told that their evidence is not permitted."
Although he says new standards of efficiency may make the rise of a "profession" of experts exclusively advising on legal actions "tempting", Cohen does not welcome the trend.
"Experts must keep mud on their boots - their sell by date is clear once they leave practice. Forensic accountants are a different kettle of fish, but how can a medical expert advise on current practice among surgeons, for example, if they no longer practise?" he asks.
Some expert witnesses are looking at steering away from court work and taking advantage of the demand for the front-loading of cases. Steve Caine, senior associate at forensic accountants Buchler Phillips Lindquist Avey, says lawyers may find that experts are unwilling to go to court since they will be able to claim more lucrative fees at less risk to their reputation by advising at an earlier stage of the case.
Caine says: "Previously you were only going to be rottweilered by one side, now you will be rottweilered by both sides and as a court-appointed expert you are up there by yourself with no back-up.
"There is also the problem that the expert's evidence may be savaged so much by both sides that the judge will turn round at the end of it and wonder what there is left of it that he can really use."
It is not just in the civil arena that the role of the expert is set to change. The number of experts dealing with criminal law cases is also predicted to increase.
According to forensic tax specialist Don Mavin, large-scale duty-free fraud cases are escalating in number as a result of the single market and EC rules on the free movement of goods. Mavin believes that the use of expert witnesses during criminal and fraud cases, which are not affected by Woolf, will rise as a consequence.
The establishment of an expert witness profession with an increasing tendency towards accreditation and regulation of experts is likely to decrease the amount of experts for hire, particularly, Mavin argues, in specialised areas such as VAT and duty fraud, where experts tend to have worked for Customs & Excise.
Like other professions, there are calls for increasing regulation of experts. Currently two bodies - the Academy of Experts and the Expert Witness Institute - represent experts and run an accreditation scheme.
Gilbert, a former vice-chairman of the Academy, says the organisations are discussing "closer collaboration", although he claims there are currently no plans to merge the two bodies. Gilbert says greater co-operation would lead to greater clarity for lawyers seeking to instruct experts, adding: "Why have two professional bodies? Unity is strength and there are only about 5,000 practising experts in the UK."
As well as changes in training and regulation, there are other moves that are arguably creating a distinct and recognisable profession.
The Association of Personal Injury Lawyers (Apil) and the Forum of Insurance Lawyers (Foil) are jointly producing an index of experts. However, Gilbert warns that "there is a risk in creating such a list since we wouldn't want people to be excluded from giving evidence simply because they are not on it".
These changes are set to have an impact on the people for who experts work. Lawyers, it seems, face a more convoluted process in appointing their expert. Edge Ellison partner Gordon Scott says: "Experts' evidence is going to have to be thought about at a much earlier stage - by the time you ask the court for permission, you will have to have instructed him, agreed his charge structure, briefed him, and got his views on the case."
Scott says lawyers will also have to ensure their experts are giving relevant evidence since judges are more likely, post Woolf, to exercise their right to cap the recoverable cost. This means that if the judge considers part of the evidence unnecessary, then he or she will simply disallow costs for that part of the evidence.
For lawyers, the future looks mixed. They may be able to get expert witnesses at reduced costs, but they may have to tighten up their procedures and speed up their work with them.
For experts too, the future is uncertain. There is a definite trend towards the creation of a recognisable profession with more control and bargaining power but that may be at the cost of the creation of an official list of official expert witnesses.
The unanswered question is, of course, whether having a profession of expert witnesses is a good thing for the law and for society. Are we moving towards employing experts that are selected from a group of professionals looking to their "expert witness" business, a group with, perhaps, less experience of dealing with patients, reading the latest research and acting as a practitioner?