Taming of the hired guns

In the context of Lord Woolf's other recommendations for the civil justice system published in Access to Justice, the proposals for the use of experts look modest. But they could have a big impact on how experts do forensic work.

The interim report identified the problems of cost, delay and complexity. These, especially cost, are made worse by the unpredictability of the system.

In Lord Woolf's view, what underlies the continuation of these problems, and has undermined all previous attempts to solve them, is the unmanaged, character of UK litigation. Control of the process largely remains with the parties with the result that litigation is reduced to a “battlefield”. It is doubtful whether litigation wars really benefit any of the protagonists.

The proposed solution is for courts to take overall responsibility for managing contested cases. Only in this way can the battlefield be tamed.

Experts have been increasingly viewed as “hired guns” in the litigation combat zone, and experts themselves are conscious of this. Gatherings of experts reported to Lord Woolf that pressure to improve reports was commonplace.

When courts directed experts to meet with a view to clarifying and reducing matters in dispute, the lawyers sought to prevent agreement.

Judges have also commented unfavourably on what they see as unnecessary polarisation of views between opposing experts (often masking insignificant differences) and a tendency for some experts to become advocates.

Although figures are not readily available, many professionals now look to forensic work for a major proportion of their earnings and the growth of specialist areas such as forensic accountancy indicates the emergence of the professional 'court expert'.

In the wake of conditional fees for lawyers, there has already been discussion about whether experts' fees could follow the same path.

To tackle these problems, Lord Woolf proposes a number of measures: judicial case management; early identification of the case issues; a fixed timetable to trial and a fixed time allotted to it; greater emphasis on the potential value of alternative dispute resolution; and less adversarial behaviour in favour of a more open and rational approach.

The courts have often insisted upon the expert's responsibility to help the court “uninfluenced…by the exigencies of litigation”. The report's recommendations for experts stress this and are designed to make the expert's duty to the court explicit.

Experts' reports will be addressed to the court. Reports are to include a statement that the writer has taken account of all matters which he considers relevant to the advice and has drawn the court's attention to any matter which would affect the validity of his opinion.

This recommendation could affect the freedom of parties to withhold factual material which does not support their case.

The court will decide which issues require expert evidence and in what form that evidence should take.

Lord Woolf also seeks to make more economical use of experts, in particular, to cut their attendance at court.

In fast-track cases, where overall recoverable costs will be fixed and trial time normally limited to three hours, expert evidence will generally be in writing only. To reduce cost and delay, Lord Woolf urges lawyers to employ a wider range of experts and not go to the top of the profession every time.

Diversification will be critical in fast-track cases and guaranteed trial dates will be welcomed by all experts.

Perhaps the most controversial proposal contained in the report has been the recommendation for the greater use of a single expert.

Lord Woolf does not advocate the use of a single expert in every case – in his view the court is capable of choosing suitable cases for such treatment. And contrary to widespread belief, the report does not recommend that the court should select experts. It would normally be left up to the parties to do so.

Opposition from the profession (and to some extent, experts themselves) suggests that there are strong vested interests in play here and that the legal profession will not readily relinquish control of what it sees as a key weapon on the battlefield.

Nevertheless, Lord Woolf is optimistic that a change of culture can gradually be brought about.