Time to rethink the role of expert witnesses

Mr Justice Dyson's attack on the inappropriate use of an expert witness is just the latest example of growing disquiet surrounding the expert's role in litigation.

Many expert witnesses seem totally unprepared for the new environment, heralded by the Woolf reforms, that will rely more on written reports than courtroom performance.

Mr Justice Dyson was downright grumpy at having to plough through elaborate reports of up to 44 pages and was right to demand that expert reports stick to the main points.

The Lord Chancellor's Department is also deeply concerned about expert witnesses – the fastest growing expense in the legal aid budget, costing u75m in the past year. Even lawyers have expressed alarm at the proliferation of "hired guns".

The long held assertion is that expert witnesses are "neutral". But this argument is rendered slightly ridiculous when lawyers on different sides of a case walk into court, each armed with expert opinions supporting their particular client's arguments.

With this in mind, Lord Woolf's recommendation for a single expert appears sound at first. Clearly clients and lawyers in low value disputes could prevent costs spiralling out of all proportion to the claim by using a single expert. But there are problems with Woolf's proposals.

Opposing lawyers in high-stake litigation are hardly going to settle on a mutually agreeable expert. If the judge appoints one, neither side will be happy and will use their own people behind the scenes to challenge the court-appointed expert. Instead of one expert, as envisaged by Woolf, you will effectively end up with three.

Also one expert, despite the number of letters they may have after their name, cannot represent an entire body of opinion in the scientific or medical community.

Still, the combined weight of the Government and judiciary is clearly determined to limit the use of experts in litigation and the expert witness industry is clearly heading for recession. But in the headlong rush to provide a cheaper and more efficient justice system, the Government and judiciary must not limit the right of every defendant and plaintiff to choose or question an expert witness.