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He says: ‘It is crucial experts don’t refer to a final report they haven’t seen. But I can see how prob- lems can arise. There may be eight experts who each have to see all of the reports, so the key is for the solicitor to have everything sorted out in good time.’ In the vast majority of cases solicitors are just


trying to work pragmatically in a system where timelines are no longer flexible, says Amanda Ste- vens, a governor of the Expert Witness Institute (EWI): ‘This is a cautious reaction by the forum because nobody wants their professional integrity questioned. I totally respect that and we need more dialogue about this.’ A Law Society spokesperson says the college has


not raised its concerns directly with the Society, which is not clear how widespread the problem is. ‘Solicitors obviously should not put experts in a difficult position,’ she says. ‘However, experts are able to discuss this with their instructing solicitor and should not be providing reports which breach their duties.’ Practitioners are hoping the new ‘buffer’ rules,


which allow parties to agree limited extensions, and signs of a more flexible judicial approach to the Mitchell principles will ease some of the pressure. But the consequences of an expert missing a deadline leading to crucial evidence being struck out remain huge in terms of satellite litigation and professional negligence claims, so practitioners are amending their letters of instruction, while both sides are reviewing their terms and conditions. ‘What worries me,’ says Webber, ‘is the pressure


this is putting on relationships between solicitors and experts. This is a very personality-driven indus- try. You build up trust in an expert because of their experience. It would be very difficult if you end up in a [row] over whose fault it is if a deadline is missed.’ Geoff Owen, a specialist in catastrophic injury


and now a consultant with defendant practice Greenwoods, agrees. He says: ‘A minority of experts are trying to impose terms and conditions that say if we are late with a deadline, you can’t claim very much from us. But we are saying we will be looking to you for redress.’ What is needed, he says, is a ‘new generation of


experts who have the expertise but do not have a backlog of work or expectation of fees that some of our existing or past experts have had’.


www.lawgazette.co.uk


23 June 2014


The EWI is training experts on the reforms. ‘Some


experts are suspicious that it is just solicitors turning the screw to maintain their own profitability because they do not understand the complex legal system post-Jackson,’ Stevens says. ‘But experts also have a lot of war stories about solicitors only giving them partial instructions or only half the documents.’ Somek says her consultancy is chasing court-set


dates. ‘We wrote to every one of our claimant and defendant clients with open cases – 900 – asking for copies of the court orders. We had about 250 by return which we hadn’t previously received.’ For Francesca Kaye, immediate past-president of


the London Solicitors Litigation Association and a partner at Russell-Cooke, the key is to have enough judicial resources so case management conferences are the ‘humdingers’ of hearings envisaged by Jack- son, identifying the key issues and what experts and reports are needed. Judges, on the other hand, are complaining that case management conferences are taking too long


Expert witnesses in criminal trials have come in for trenchant criti- cism from a Crown court judge. Earlier this year, Mr Justice


Coulson blamed ‘unconscionable’ delays by defence experts for causing the murder trial of a four-year-old boy to be adjourned three times. He stressed it was not


the fault of the defence legal team but argued it was ‘high time’ that the criminal courts adopted the same approach as the civil courts in requiring experts to stick strictly to court-ordered timetables.


‘UNCONSCIONABLE’ DELAYS However, Rodney Warren


(pictured), former director of the Criminal Law Solicitors’ Associ- ation, argues: ‘I would personally be reluctant to see any change on the criminal side because the way proceedings operate is differ- ent to the civil side.’ He says the defence ‘usually gets the blame’, but delays can be caused by the prosecution failing to be clear about its evidence and by the need to seek prior authorisa- tion for experts from the Legal Aid Agency. He


blames


– on average 90 minutes – which is clogging up court lists. ‘They should have thought of that before,’ Kaye remarks. Where judges are more consistently focusing on


proportionality and limiting the number of experts, or pushing for single joint experts, is in the county courts, she says: ‘Judges are certainly much more comfortable with saying “no” than before, which isn’t necessarily a bad thing.’ One option Owen would like to see is a panel of independent experts which parties would go to on a single joint basis, ‘but most people think that dream will be never achieved’. Another challenge experts face is cost budgeting.


‘We have always provided fee estimates for the initial piece of work,’ says Somek. ‘But to say the work will cost X at the outset is a nonsense – we don’t know whether there will be part 35 questions, whether there will be three or 33 documents to assess, whether there will be surveillance evidence. In one case we had 10 DVDs to review.


the government and the courts for becoming ‘besotted’ with managerial solutions. ‘Justice is more complex than that,’ he says. ‘Attempts to speed up the process in one place just impact some- where else. While it is important to comply with deadlines, if a judge sets an artificial timetable, it is just a pointless demonstration of his power.’ The cuts in legal aid rates are


also affecting cases. ‘The MoJ argues there is no evidence to suggest experts won’t work at the lower rate just because they were paid more in the past,’ Warren says. ‘It has probably proved its point – experts are taking on instructions because they want the work. However, the time it


takes to find them is a cost to us and eats into the profitability of a case.’ A recent BBC Panorama inves-


tigation secretly filmed expert witnesses offering to help clients hide the truth. Warren says it is ‘disturbing’ if experts don’t truly understand their role, as anyone prepared to tailor their evidence would be in breach of their duty to the court. When it comes to regulating


expert evidence in criminal trials, the government decided the Law Commission’s proposed statu- tory admissibility test went too far, choosing instead to tighten the Criminal Procedure Rules so judges are provided with more information at an early stage.


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