Defending the expert witness

The Expert Witness Institute was set up to make sure experts get the recognition they deserve, says Sir Michael Davies. Sir Michael Davies is founding chairman of the Expert Witness Institute.

One year ago the Expert Witness Institute (EWI) was set up. It is sometimes asserted that there should be only one body available for expert witnesses to join. We do not think that currently this is realistic or desirable. Why kill off the RAC to give the AA a free hand?

Our aim as an organisation is to support and educate experts as witnesses, to reflect and represent their views, and so improve their status, skills and influence.

Our members rightly want to be perceived for what the overwhelming majority of them are: trained and experienced in their own professional skills, independent, impartial and, above all, honest when asked to give advice or to appear as witnesses in court.

They are not ‘hired guns’ and they resent suggestions that they are. They want the few black sheep to be exposed. In this, they are entitled to the support of solicitors, barristers and judges.

They want recognition that, following acceptance by an independent non-profit making body, their good standing will be recognised by lawyers and courts and tribunals. That is different from demanding a closed shop. The EWI is not in the businesses of excluding non-members from the witness box. That may come one day but until then words like ‘accreditation’ must be used with care.

Members are in general supportive of Lord Woolf’s suggested reforms after all, his reports were one of the inspirations for the founding of the EWI and he was its first president. Most members are sceptical of some of his proposals, though, such as the ‘single expert’.

Experts want to be paid well, and why not? It is a free market. Inevitably a very few are greedy but the same can be said about lawyers. What is of serious concern, and seems to be on the increase, is the reluctance of some firms of solicitors to make timely payment of fees earned and due.

We have had complaints not only of lengthy delays but of blatant threats that unless the expert agrees not to require payment for 12 months after the conclusion of a case, he will receive no future instructions from those solicitors. This is intolerable.

Experts like lawyers are worried about the expressed intention of the Government to end legal aid in personal injury and other cases. The present declared and categorical attitude of the EWI is to oppose conditional or contingency fees for expert witnesses. If the litigant cannot raise the cash, how then are experts’ fees to be met? No one as yet seems to have come up with a satisfactory solution.