Experts' gravy train to hit the buffers

The expert witness gravy train may be diverted into a siding, if the signals from three top judges are anything to go by. The spotlight has been turned by judges Bingham, Taylor and Woolf on the practice of the automatic loading up of litigation by anxious lawyers with experts and counter experts, whether cases need them or not.

The concept of the court-appointed expert seems to be fast gaining ground. But a contributor on page 25, who points to the extent to which such experts are used in courts already, sees this as one further move from the adversarial system.

The Lord Chief Justice is unlikely to accept that this shift is what he had in mind when he addressed the issue of expert witnesses earlier this month. He said the role of the court-appointed independent expert would be to obtain a resolution of the technical issues with which both sides frequently can agree. He argued that experts would be in a better position because they would no longer appear as "mercenaries whose testimony is on offer to whoever engages them".

Lord Taylor did concede that the full panoply of experts would be needed in the difficult and heavier cases. He seemed prepared to limit the role of the court expert to where "the issue is simple, or marginal, or where the amount at stake does not justify the full panoply".

The benefits of changing the system will hinge on the extent to which these areas can be ring fenced. Because once there is a mechanism to challenge the court expert, the litigants and their lawyers will have their experts lined up in readiness.

As some experts say, this could be good news for them – before there were just two experts involved in a case, now there could be three. So instead of winning a 50 per cent reduction in experts in a case, expert numbers could be boosted by one third.

The reforming judges' instincts are sound and the waste in litigation they identify needs eliminating, but they must devise workable proposals.