Litigator's view

Henry Sherman questions Lord Woolf's revised role for experts

In his initial report published last month Lord Woolf makes clear his allegiance to the present adversarial system.

The section of the report which has attracted least attention is that relating to experts which if implemented will give the court a range of powers and responsibilities akin to the inquisitorial model as he describes it.

There are clear problems with the present system governing the use of experts. The crucial issue here is rightly identified by Lord Woolf as the dual function of most experts, who are recruited to investigate a problem and then have to change roles and give expert evidence to the court.

Second, cases are often dogged by a failure to focus on the issues crucial to expert evidence, leading to unnecessary cost and delay and experts' reports which "pass each other like ships in the night".

Lord Woolf's remedy for these ills is undisputedly the right one – a move from a situation where the parties call the shots to one where the judge has a central role in directing the proceedings. The logic of this position has, however, carried Lord Woolf close to a system which he professes to eschew. His view is that the necessity for expert evidence will be completely under the court's control.

In a matter of any technical complexity the prompt involvement of experts can be crucial to the prospects of an early settlement.

Judges may now be tempted to use their robust new powers to restrict expert involvement to the single court expert and refuse the parties leave to call their own experts.

A climate which discourages the parties from obtaining expert help by raising the spectre of financial penalties will be counter productive.

Many complex technical disputes are not clear cut and may give rise to genuinely differing views. There is a risk that a single court expert will be unable to deal properly with the range of arguments thrown up by such claims.

Lord Woolf's answer to this would probably be that judges are best placed to tackle issues of this kind. If, however, the system is starved of funds and judges are under pressure to maximise case turnover and reduce costs, then there is a real risk that the expert's role will come to be devalued and that Lord Woolf's aims will not be fully achieved.

Henry Sherman is a partner in construction litigation at McKenna & Co.