Experts in search of authority

Lord Woolf plans to merge expert's organising bodies, but try telling members it's a good idea. Elizabeth Davidson reports.

Somewhere within the legal system there is an employment “expert” who has appeared in court more than 200 times, yet who has never employed anyone in his life and who has no qualifications or experience.

That's according to Christopher Baber, operations director of national expert witness supplier Trevor Gilbert & Associates, who claims to know of “three or four people I would consider complete charlatans” making their living as expert witnesses.

Baber, whose firm is a corporate member of the Academy of Experts, which launched 12 years ago, says: “Some of these so-called experts are quite successful at attaining work. They're still out there and still working because solicitors are not stringent enough.”

Baber's anecdote highlights the difficulties solicitors face when instructing witnesses from the growing pool of unregulated, ungoverned experts. Neither solicitor nor court have any way of knowing that the expert is telling the truth about his or her credentials.

Confusion is increased by the existence of three expert witness groups: the Academy of Experts and the Expert Witness Institute lay down standards for members, regulate them, have an accreditation scheme and run training courses; the Society of Expert Witnesses acts as a representative body for the profession.

The Master of the Rolls, Lord Woolf proposes that the separate regulatory bodies be amalgamated. He told a delegation at the Expert Witness Conference in London this month: “The academy and the institute have played a commendable role, together with other professional bodies, in promoting standards among expert witnesses.

“The progress which has already been made means that the time has now arrived when it would be sensible that there was one pre-eminent body promoting the skills of the experts and providing training and accreditation.”

However, the academy and the institute, both profit-making bodies, are reportedly arch-rivals. Lord Woolf's appointment as president of the institute when it launched in 1996 caused controversy since he was assumed to be favouring one of the organisations. This resentment is being rekindled by his latest recommendations, despite his public announcements of support for both bodies.

As one expert says: “The academy was in existence when Lord Woolf was conducting his Access to Justice inquiry. He then became president of the institute. Now, after three years of the institute's existence, he is saying the two should be fused. He is saying that the institute should swallow the other body. That is the conclusion you can draw from this.”

Institute company secretary Brian Thompson is, perhaps unsurprisingly, in favour of amalgamation with the academy. He says: “We wouldn't have any problem with that, we can see the argument that there shouldn't be a multiplicity of organisations.”

Academy chairman in meritus Michael Cohen, on the other hand, is dismissive of the suggestion. He says: “If I'd wanted to join the institute I would have,” although he claims he would be “happy” to talk about institute members joining the academy.

Lord Woolf's recommendations come as a surprise to some experts, although the initial response of many is supportive. However, even if Lord Woolf's recommendations are carried out, will this achieve the best result for everyone concerned? Some experts think the changes should go further.

Bond Solon marketing director Mark Solon, whose firm organised the November meeting, says expert witnesses should be more regulated and responsibility for this should go to the Lord Chancellor's Department (LCD). Solon says the move is logical since the expert witness is a servant of the court and the LCD is ultimately responsible for the running of the courts.

Solon says: “We think the whole legal environment has changed and it may be worth bringing regulation within the scope of the LCD, so the experts can directly talk about protocols and access to the persons in charge.”

Cohen is horrified by the suggestion. He says: “I would hope that everybody would be against the accumulation of further powers in the hands of the Government. Whether it is desirable to place further powers and controls in the hands of the executive is open to question. I don't think it is a good idea.”

Thompson says: “I don't think the LCD would want to take on the responsibility. We are a company limited by guarantee, all members have a responsibility to the institute and I think they want to maintain that ownership.”

One way to improve standards among experts is an accreditation scheme. Baber says: “We think [the experts] should be trained and members of a professional body, and there shouldn't be full-time experts because you are not an expert if you are no longer working in the field you claim to be expert in.”

However, Lord Woolf discards the idea of accreditation. He says: “It is neither possible nor appropriate to introduce a requirement for accreditation. However, the membership for accreditation for an individual by an appropriate professional body as an expert witness does inspire much-needed confidence.”

There are several reasons why the time is ripe for some rationalisation of the expert witness system. There is less money around for experts after cuts to legal aid in civil cases, therefore solicitors require greater professionalism from their witness and the experts needs greater support from their professional body.

Also, Lord Woolf's reforms encourage judges to appoint a single expert acting jointly for both parties, which seems likely to decrease the amount of work available for experts in the long-term. As this is left to the discretion

of individual judges, the practice varies according to the geographical area. Baber explains: “There has been a slowdown of work which has been quite drastic for some experts.”

To take the Commercial Court as an example, Mr Justice Rix told The Lawyer he had made one order in the Commercial Court for a single joint expert prior to the Woolf reforms on 26 April and one since.

However, he adds: “I think there will be orders for single joint experts and it may be that in smaller cases there will be greater movement towards that.”

Judge Rix says that cases in the Commercial Court tend to require fewer experts than other courts. He says: “Oddly enough, although the Commercial Court cases are complex and heavy, for all of that the Commercial Court is not particularly heavy with the use of single joint experts. In personal injury cases there may be half a dozen experts on each side: you will have anaesthetists, and more academic anaesthetists and more clinical anaesthetists. That's very rarely the case in the Commercial Courts. We don't order experts unless we need to. We don't have a plethora of experts.

Judge Rix adds: “In the Commercial Court and in the High Court, cases have fallen in number, but that's a temporary phenomenon and I would think that would be true elsewhere as well. However it's still very early days.”

Given the diversity of expert witnesses and the fact neither the Academy of Experts, the Expert Witness Institute nor the Society of Expert Witnesses claim to specialise in a particular field of expert witness, how does joining a professional body benefit them?

While the society is a non-profit-making body which acts as an information provider for the legal profession, both the academy and the institute charge about £150 per annum for membership. But, as one expert puts it: “All the courts need to know is that these experts know how to be experts and that means having access to the court rules and a little bit of training.

“The LCD can point them in the direction of the court rules and the information they need. The amount of High Court litigation is going down, therefore why pay for these bodies?

“In many cases they are not mainstream experts and are never going to be an expert again, so why should they join an institution?”