Witnessing the change

When the Lord Chief Justice, Lord Woolf drafted the Civil Procedure Rules (CPR) he had experts firmly within his reforming sights. The courts took on the challenge enthusiastically, and only two years into the new regime, there have been more than 100 cases regarding the role of the expert.
“A large litigation support industry has grown up among professions,” observed Woolf in his final report. “In my view, this is as great a social ill as the actual cost of pursuing litigation.”
“The CPR have had an absolutely huge impact on experts,” reports Joanne Day, a professional support lawyer in Allen & Overy's litigation department who recently wrote a book on the courts' approach to experts (see box). “The courts are now taking a much firmer hand on whether to allow expert evidence at all,” Day adds. Of this burgeoning new body of case law, about 10 per cent of the judgments featured Lord Woolf on the bench and 20 per cent were critical of the experts.
The CPR state that the “overriding duty” of experts is to the courts and not to the parties that pay them. Last October, Lord Justice May told a conference of experts that they were not there “to engage in a sparring match” with their opposite number. “The courts have actively upheld this duty by criticising expert witnesses where they have shown signs of partiality,” he said.
The judicial clampdown has led to something of a recession in the expert industry. Employment experts have felt the impact most keenly, with some experiencing a 70 per cent drop-off in referrals. Brian Thompson, secretary of the Expert Witness Institute, says that for a while employment consultants were “not exactly wiped out” but did lose most of their business. “I think that the hired guns have definitely been reduced,” says the Association of Personal Injury Lawyers' (Apil) secretary Mark Harvey. To illustrate the 'hired gun' mentality, Harvey tells of a neurologist who in every case would allege that his client was “malingering”.
Fundamental to the Woolf reforms is the promotion of the single joint expert (SJE), but the concept alarms professional experts, who see it as a move towards the system of other countries, such as France and Germany, where the courts appoint their own experts from a list.
Thompson believes that the honeymoon period, where judges applauded practitioners for their eagerness to embrace SJEs, may well be coming to an end. “A much more realistic approach to the SJE” is being adopted, he notes.
A survey by the Register of Expert Witnesses published this month shows that most experts have yet to receive joint instruction. Of the 228 experts, 162 were instructed on 1,908 cases in Woolf's second year compared with 98 on 575 cases in the first.
Apil has been campaigning to make sure the courts are not too strict in their application of the CPR for victims of medical negligence. Such clients might have “lost all faith in the National Health Service”, says Harvey, and they might be disturbed to discover their case will be determined by yet another doctor.
Richard Vallance, head of litigation at Charles Russell, shares this concern. He says, for example, that a single expert would be inappropriate in the case of a baby who is damaged during labour through the negligence of a doctor. “If we were required to instruct a joint expert it would mean that a doctor would be deciding the case and so the claimant would not be having a fair hearing,” he says.
Harvey says that at fast-track level SJEs work well. “There has been reasonable agreement between the insurance industry and ourselves as to which expert to go to in the first place and the experts are making sensible decisions,” he says.
Nicola Mumford, a partner at Wragge & Co, claims the rules could actually increase costs because in complex commercial cases parties will appoint their own experts anyway. “This could be good news for experts because there will be three of them working on a case whereas there used to be only two,” she says. Indeed many litigators claim that the Woolf reforms have inflated expense through the emphasis on 'front-loading' cases.
Day believes that this concept of the SJE has been “creatively adapted” to suit different matters and courts. In particular, she argues that there are many multitrack cases which, “by virtue of their complexity and the sums at stake”, still warrant each party having its own expert.
From an expert's point of view, Thompson sees drawbacks as well as benefits. “They are sitting between opposing parties and they have to come up with a reasonable interpretation of the circumstances,” he says. “At best they're going to satisfy one party or they actually may disappoint both.”
Another tussle that lawyers are having with the courts is over the meetings of experts where lawyers are excluded. Harvey's concern is that such meetings can end up as “a substitute for a trial”. He says that lawyers should be there to make sure experts “stick to their agendas” and avoid the nightmare scenario where four doctors are brought together at great expense “and then at the end of it they have completely missed the point”.
“We still do have an adversarial system and, despite the best efforts of the CPR to try to reduce conflict where possible, the claimant has to prove his case,” he says.
Another Woolf innovation that the courts have taken to keenly is the use of written questions to experts. This reduces the need for cross-examination at trial and can be done without the court's involvement prior to trail. However, Day says it is still under-used by practitioners. “I don't think firms have latched on to the usefulness of that as much as they could,” she says.
According to Day, the reform of expert evidence is a work in progress. Further changes are planned to the CPR to match more closely the practice for experts in the Commercial Court relating to, for example, duties of experts and the content and form of their reports. There is also a new Code of Guidance on Expert Evidence which exists in draft form and is expected to come into force by the end of the year.