The Woolf reforms
25 February 2002
There was the judge who said that he could decide the claim for care in a million-pound case without any expert evidence; there was the selection as joint experts of experts known to be claimant or defendant-orientated; then there was the refusal to allow expert evidence in matters of real substance; and the nurse who was ordered to deal with equipment - the province of an occupational therapist.
The overriding impression is that the reforms empower judges to believe that they know better than practitioners how catastrophic injury litigation should be conducted. Of course that may be true in some cases, but there is a body of experience among claimant and defendant lawyers that should not be ignored.
In high-value litigation, it is the use of experts which seems to have caused the most adverse comment. In Daniels v Walker in May 2000, Lord Woolf said: "In a case where there is a substantial sum involved, one starts from the position that, wherever possible, a joint report is obtained. The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive."
Lord Woolf then astonished us all in November 2001 in Peet v Mid Kent Healthcare NHS Trust. He said that in the great majority of clinical negligence cases, non-medical evidence should be given by a single expert, even though such evidence can influence the size of a claim significantly. Single experts should be used in the absence of 'special circumstances'. As Peet was a care case, this strikes at the heart of quantum valuation.
The comment that the cross-examination of experts can be very expensive is revealing. First, it shows that the overriding objective of the management of litigation can sometimes become cost rather than justice or fairness. It also demonstrates a failure to analyse the realities of expert evidence. In cases where the care experts are a million pounds apart, is it unrealistic that their opinions should be tested rigorously by cross-examination? That can be done in a day or less, and the relative cost is trivial.
The assessment of care in catastrophic injury claims is usually the most difficult aspect of the assessment of quantum, and the difference between good and bad experts is enormous. For a claimant, it is essential to devise a system of care that is appropriate to the needs of the individual. Claimant lawyers should try to find a fair and reasonable solution to the claimant's problems, and they are far more likely to succeed if they are guided by experts they have confidence in, and who have genuine expertise. They cannot do this if they are restrained in their dealings with an expert by the fact that they are instructed jointly.
In any event, why should the courts try so hard to delegate the function of the judge to an expert? Surely we are entitled to expect that our legal system will provide us with a process of litigation that produces a result which has all the appearance of justice - a word which does not loom large in the judgments in Peet - and which is likely to have the best chance of satisfying the parties.
Fortunately, common sense frequently prevails, and lawyers on both sides often agree that they will work round the court orders, rather than be bound by them. Time and again we see early, unrealistic orders with short time scales, inevitably followed by extensions and revisions. Only recently, a district judge wanted to list a case for trial when the claimant was still undergoing rehabilitation.
It would be sad if the human rights legislation has to be invoked in order to secure the rights for personal injury litigants, either claimant or defendant. In Daniels, Lord Woolf said: "Article 6 has no possible relevance to this appeal." But claimants and insurers might disagree if they are stopped from conducting their litigation in a sensible way. The Court of Appeal disagreed in December 2001 in Goode v Martin, when deciding that Section 3 of the Human Rights Act allowed them to interpret Rule 17 of the Civil Procedure Rules in a way which would avoid violation of a litigant's right to a fair trial under Article 6.