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(Cont. from page 11) litigation involving fires, explosions and chemical incidents: ‘Jones v Kaney was always likely to redraw the position. It may have gone a little further than some expected and it may discourage experts who have a main line of alternative business but the judgment should be of no direct concern to honest, competent and careful experts.’
Forensic accountant Catherine Rawlin, a partner with RGL Forensics, agrees: ‘I don’t think the decision will have much impact, as the vast majority of experts carry out their work for their client carefully and in accordance with their duty to the court.
‘The fear is that an angry losing party, with costs to fund and with a tendency to resort to litigation, could turn on their expert as a potential “deep pocket”, perhaps in a last attempt to win some damages. I would hope that, by acting properly, to their best of their ability and in accordance with their duty to the court, experts will not lose such cases. But woe betide any expert who acts negligently now the landscape has changed.’
It is still ‘caveat emptor’ for solicitors choosing experts and they need to exercise due diligence, says Mark Solon, director of expert witness trainers Bond Solon.
A survey of experts at the Bond Solon expert witness training conference in November gives a snapshot of the market. It found only 4% of those who responded had changed their terms and conditions in the light of the decision. While 79% said they had specific expert witness professional indemnity insurance, Solon says it is worrying that one in five don’t because it is something instructing solicitors should be asking to see.
‘It may be some haven’t changed their terms and conditions through ignorance or foolhardiness or because they believe they are already covered,’ he says. ‘It is still early days but things will change if claims start coming through.’
Another development involves the Australian import known as concurrent evidence or ‘hot tubbing’. Lord Justice Jackson flagged up the procedure – where experts are put in the witness box together and questioned by the judge, ­counsel and by each other – in his costs review.
A pilot is currently being run in the Mercantile, Technology and Chancery courts in Manchester and Liverpool. In a recent family case, the judge said putting the three experts in the ‘hot tub’ had resulted in ‘coherent evidence’ rather than ‘adversarial point scoring’ and the evidence was completed within four hours rather than the anticipated two days.
Goudsmit says the procedure allows experts to put technical points to their counterparts and to follow them up to a greater depth than may sometimes occur in cross–examination.
‘The downside is that it may favour the quicker-thinking and louder but possibly less competent expert,’ he says. ‘There may also be some cost implications as the lawyers may seek reassurance by means of extensive conferences that they still exercise control of the expert evidence.’
This year has seen three cases which have considered the question of expert evidence and privilege. Anna Pertoldi, a litigation partner with City law firm Herbert Smith, says the decisions are timely reminders about instructing experts.
The Court of Appeal ruled in Edwards-Tubbs v JD Wetherspoon that a party who obtains a report from one expert may have to disclose it as the price for being allowed to instruct another expert to discourage ‘expert shopping’.
‘This highlights the importance of testing a potential expert’s view before instructing them,’ she notes. ‘In complex litigation where you are in unfamiliar territory, one option is to instruct them initially on a purely advisory basis.
‘In Axa Seguros S.A. de C.V. v Allianz Insurance plc, the message is that if there is any doubt whether the expert report is for the sole or dominant purpose of litigation, commission two separate reports, remembering that only the report prepared for the litigation will be privileged. The decision in Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd is a reminder that you must be careful what you tell a potential expert before you have engaged them – there is no guarantee that they won't turn up on the other side.’
Experts and litigators in the civil arena will be facing a ‘big bang’ of legal reform next October when Lord Justice Jackson hopes his recommendations on costs will come into law at the same time as changes are made to the Civil Procedure Rules.
‘We need to win over hearts and minds if the changes are to be effective,’ he told the expert witness conference. The changes include a new requirement for parties to produce a budget for the expert evidence. Judges already have powers to limit recoverable costs, but will be encouraged to use those powers much more often.
Murrell says it is in the interests of both parties if judges are much more hands on over cost management. ‘It won’t stop you using experts because so many cases depend on expert evidence. However, it will cause both experts and lawyers to scrutinise the terms of instructions – and experts will be keen to know they will be paid, come what may.’
Smyth adds: ‘There is no doubt that solicitors are exposed at every level to more and more pressure to keep to budgets or have a good reason for moving away from them. But, in most cases, you will have had no choice but to bring them in.’
Jackson LJ has also suggested parties in highly complex cases should consider adopting the Australian technique of having a ‘facilitator’ chair the expert meeting.
‘This could be a good way to control experts,’ says Solon. ‘It may
also help avoid the excellent but reticent expert being dominated by the polished, but less knowledgeable, expert.’
Another development waiting government go-ahead is the Law Commission’s proposal for a pre-trial test for the admissibility and reliability of expert evidence in criminal trials.
‘There has been concern that advocates aren’t always effective in challenging experts,’ says Law Commissioner Professor David Omerod. ‘Amateur hobbies have also developed to such an extent that individuals have been treated as experts. The test would be effective in weeding out charlatans but shouldn’t cause genuine experts any anxiety.
‘Most evidence will still be admitted. The judge won’t be looking to see if the expert’s opinion is right or wrong but if it is reliably based. It is not a panacea but it places the parties, experts and judges on notice when the test ought to be applied.’
While the Law Commission didn’t look at expert evidence in civil or family cases, Omerod says the core test of reliability is ‘so generic I can’t see why it couldn’t, with scrutiny, be considered for other jurisdictions’.
The silver lining in all these changes, says Solon, is that experts should become more professional and solicitors more focused in their instructions.
‘The market remains strong,’ he says, ‘with 90% of respondents to our survey reporting their instructions and hourly rates had either stayed the same or increased over 2010. It is too early to say what impact the legal aid caps or the Kaney judgment will have but the message must be – get it right first time and on time.’
Grania Langdon-Down is a freelance journalist
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