Witnessing the decline
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6 October 2014
Since the Woolf reforms were introduced a year ago, the role of the expert witness in civil cases has significantly diminished. Elizabeth Davidson reports on why experts are being phased out of the courtroom.
One year on from the most radical reforms of the civil justice system this century, many experts are hanging on by the skin of their teeth.
Since the introduction of Lord Woolf's reforms last April, encapsulated in the new Civil Procedure Rules (CPR), the number of experts in business has dropped significantly.
They have been the casualties of the streamlining process that, according to both experts and lawyers, sees the litigation system in better shape and Woolf's bold promises of swifter, cheaper justice beginning to come true.
But while the Woolf reforms have swept in a more efficient regime, they have also reduced the amount of experts' appointments, particularly for those offering advice in employment law cases.
One of the reasons for initiating a cull of experts was to fulfil the promise of Woolf to clean out "hired guns" - biased experts who slant their evidence to help their client. The general consensus is that this is now beginning to happen.
Association of Personal Injury Lawyers (Apil) president Ian Walker says: "There are less hired guns about because nobody instructs them, and a lot of experts are coming out of the market."
According to Walker, the reforms are, by and large, running smoothly.
Philip Kabraji, head of forensic services at accountants Grant Thornton, agrees. He says: "Litigation is being speeded up. Because of case management conferences there is a lot of direction, a lot more than there used to be, and pleadings and expert reports and witness statements are more or less consecutive. There are no delays now whereas before there used to be a lapse of several months between pleadings and witness statements being issued."
Kabraji adds: "There is less litigation than there used to be. The disadvantage [of Woolf] is that the costs are up front. People who want to bring a claim know there is a huge expenditure that has to be made up front, whereas previously they could stagger the costs. That puts people off bringing cases because they have to put their money where their mouth is."
Kabraji estimates that due to the Woolf reforms about 70 per cent of the overall costs are now paid at the onset of the case whereas previously parties were only liable for the cost of pleadings, the initial statement of claim and the defence.
This creates selection problems for lawyers who must assess much earlier the potential requirements for experts.
It also intensifies the pressure to keep costs down, and experts do not come cheap, especially if they are needed for their medical knowledge. As Walker says, expert witnesses can be "bloody expensive".
Forensic biologist Frazer Imrie admits to hearing comments from medical experts that their fees are "increasing enormously".
Not surprisingly, publicly, experts vigorously deny such accusations. But how much do they charge, and how much should they charge?
Bond Solon, an expert witness training body, conducted a survey in November 1999 which showed that the vast majority of experts charge between £50 and £200 per hour for writing a report, one in six charges more than £1,000, and one in 14 charged more than £1,500.
Roger Clements, a gynaecologist and chairman of the education and training committee at the Expert Witness Institute, says: "What you charge is a matter of contract between you and the solicitor, fees rise inevitably as everything rises, and it is difficult to know how much others charge because they don't want to tell you.
"The advice that I give to young experts is you ought to be charging roughly what you would make if you were doing your ordinary course of work."
Academy of Experts chairman Michael Cohen says: "To say that experts' fees are too high is a total red herring when you count the total cost of the court - it is all the sundry costs that are the crucial thing.
"Putting an expert in the box may cost £1,000 or £2,000, but the Lord Chancellor's Department estimates that a day in court costs £10,000, and once you add on solicitors' and barristers' fees and all the other costs, you may be talking £50,000 for the day.
"Controlling costs does not rely on cutting experts' fees but is achieved by putting more emphasis on the importance of experts meeting beforehand to iron out the amount of evidence that is needed to save time in court."
Perhaps, given Lord Woolf's attempts to drive down court costs and in the spirit of transparency and openness, experts should declare their fees?
Clements argues against this. "Experts' fees should be made public only if everybody's fees are made public," he says.
He adds that the quantity of work required by each side may vary and that no purpose would be served by declaring fees.
It seems that the Woolf reforms have hit employment experts the hardest. Trevor Gilbert, chairman of national employment expert witnesses practice Trevor Gilbert & Associates, says: "The judiciary has an appalling attitude to employment experts, and most of us are seeing a 50 per cent reduction in work as a result.
"Judges are barring us from appearing in cases because they feel they know as much about employment as the experts - but there is not one judge in the land who can do a career forecast for a head of treasury. There is a certain superciliousness among the judiciary and I think it is disgraceful.
"This goes against natural justice. Everybody should have the opportunity to put forward the best evidence for their case."
Gilbert adds that lawyers have been quick to capitalise on the shortage of experts' work - one solicitor recently refused to pay him more than £475 for a 30-page report which would normally cost £1,250.
He says: "I had to turn the work down because there is no way I could produce a report for that amount without the quality suffering."
Cohen agrees that employment experts have been badly hit.
He says: "It seems employment experts are not the flavour of the day, a lot of them are being told by courts that they are not required. We don't know the reason why."
But Cohen adds: "There are fewer instructions across the board, but recently experts have been reporting an increase in appointments again, and more experts are being used in mediations."
One of the key policies of the new CPR which is intended to drive down costs and reduce delay is the introduction of single joint experts. This gives the judge the discretionary power to require that a single expert witness appears jointly for both parties, acting with a duty to the court.
If this policy is rigorously pursued by the courts it will have the inevitable side-effect of drastically reducing the amount of business for experts.
While conclusive statistics are yet to appear, the signs are that joint experts are being used in about half the multi-track cases, or cases worth more than £15,000. That is the estimate of Walker, and the Bond Solon survey revealed that 45 per cent of experts have been asked to work as a single joint expert.
But this varies according to which area of law the expert is working on, and in complex cases separate experts are more likely to be appointed.
Grant Thornton's Kabraji says: "In big and complex cases judges prefer to have separate experts because there are always two points of view and if a single joint expert is appointed then he or she takes the place of the judge."
Clements says: "I have been given joint instructions only twice out of 250 medical negligence cases I have been involved with, but in about half the personal injury actions I have worked on.
"In medical negligence cases, joint experts are usually only appointed by agreement between parties on peripheral issues. In brain damaged babies cases, for example, obstetric and paediatric views of what happened and whether appropriate care was taken are usually not given by a single joint expert, whereas x-ray and neuro-radiologist experts are usually singly appointed."
The inevitable by-product of swifter, cheaper justice is a reduction in the use of experts, and increased pressure on their costs.
However, even the experts themselves acknowledge the benefits of the new CPR and if you are good enough, there is still a place for a new, improved and un-biased expert.
The expert witness plays a vital, yet expensive, role. Will it ever be possible for them to act on a conditional fee basis?
When this was proposed two years ago in a survey carried out by expert witness training company Bond Solon, half the lawyers who responded said that they thought experts should be able to work on a conditional fee basis.
But at the moment both the Academy of Experts and the Institute of Expert Witnesses maintain a clear stand that no expert should accept instructions on a contingency or conditional fee basis. Despite this, there are frequent rumours of experts acting unofficially on a no-win, no-fee basis.
Frazer Imrie, a forensic biologist, says: 'Experts will never get to the stage of no-win, no-fee.
'I spent a great deal of time getting educated and learning enough to become an expert and I expect a fair reward for my services. My first duty is to the court.'
Roger Clements, an experienced expert witness in gynaecology, says: 'This wouldn't work because experts don't have the option of assessing the risk before they accept the instruction.
'Unlike the solicitor, the expert doesn't get an uplift fee and he or she has no control over the progress of the case. He or she is simply a paid agent employed by the plaintiff. Also, this would place the defendant and claimant on unequal terms since the defendant can't do no-win, no-fee work.'
He adds: 'When the expert took the stand the first question would be, 'Have you been paid, doctor?' If the witness said, 'No, I'm not paid unless we win,' then we would all be able to go home, wouldn't we?'
Selecting an expert
One thing is clear when selecting an appropriate expert, there is no substitute for experience.
The first port of call in the selection process is probably the lists held by the three main expert witness organisations, the Society of Expert Witnesses, the Academy of Experts, and the Expert Witness Institute. Other lists are held by the Association of Personal Injury Lawyers, the Law Society, and Action for Victims of Medical Accidents (AVMA).
These can be excellent resources, but gynaecologist Roger Clements warns lawyers to always exercise caution.
Clements, who recommends the AVMA list of experts in his own field of clinical negligence, says: 'Open, formal ways of accreditation don't work.
'Experts want to take part in these lists to make money, and the people running the lists want as many names as possible to make the maximum amount of money. It's not very difficult to gain entry if all the criteria are to fill in a form, pay a fee and find two referees.
'That doesn't address the major difficulty of how to match the appropriate expert to the case and that is where most people get caught out. That requires years of experience.'
Academy of Experts chairman Michael Cohen agrees with Clements. He says: 'There are umpteen directories, but word of mouth and recommendation is the best way when selecting an expert.'