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The effectiveness of single joint experts and whether ‘hot tubbing’ can save court time are top of the agenda as litigators contemplate new practice directions for the family courts, reports Grania Langdon- Down
The price of change
EXPERT WITNESSES
Expert testimony is under scrutiny as never before across the civil, family and criminal arenas, with judges warning of a ‘cultural shift’ next year in what courts will allow and in the way it is presented. New practice directions for the family courts will make it clear that expert reports should be the exception rather the norm, while the introduction of the Jackson reforms will focus on narrowing issues and keeping costs proportionate. The result is likely to be a greater use of joint instructions and ‘hot tubbing’, where experts all go in the witness box and give their evidence concurrently.
But will the pressure to stick to tight budgets end the costly race to get the best experts onside? For litigators, the big concern at the time of writing was the government’s lack of consultation over the new rules, which have to be published shortly if they are to come into force in April 2013.
Russell-Cooke litigation partner Francesca Kaye, president of the London Solicitors Litigation Association, says: ‘Everyone is concerned that we have not been consulted about the detail of the package of changes that are going to be implemented in April. Given the complexity of the changes, it would have been sensible to consult before giving us a fait accompli.’Courts already have the power to limit recoverable costs for experts but they rarely use it. Under the new regime, courts may be able to limit the recoverable amount either specifically, or as part of the new costs budgeting process. That highlights the ‘fundamental error’ in the reforms, she says. They are presented as ‘driving down the costs of greedy lawyers’, but they will only affect recoverable, not actual, costs. And ironically, she adds, the costs of preparing these new budgets may actually increase the shortfall, making it even harder for those with limited funds to pursue a claim.
‘It may become an issue of inequality of arms resulting in an inequality of experts,’ she says, ‘because it will only be those who are least able to manage the costs who will be caught by these tight budgets. If you can only afford to spend the £1,000 that may be recoverable but the other side can afford to spend £10,000, these reforms won’t solve the evil they were designed to resolve.’
More than a decade ago, Lord Woolf proposed the concept of the single joint expert (SJE) as a key part of his reforms but, while the presumption is they will be used in fast-track cases, they have not caught on in bigger cases.
‘When Lord Woolf carried out his review, expert-shopping was the rule rather than the exception,’ says litigator Simon Ball, practice director with personal injury and insurance specialists Pierre Thomas & Partners. ‘He was on the right track with the SJE but the reforms didn’t go far enough and “hired gun” experts are still commonplace.’ Also, appointing an SJE is not the end of the story. ‘You try and get your own man to do it or, if you don’t like the report, you try to get it kicked out, so you still end up having a punch up,’ he says. ‘You also actually end up with three experts as each side still wants their own.’
He works primarily on behalf of European insurers dealing with their litigation in Europe and in the UK courts and prefers the French model of a panel of court-appointed experts with no brief for either side. ‘It has got to be an attractive idea in principle,’ he says, ‘but who would fund it as it would require root-andbranch change?’ SJEs ‘aren’t loved by anybody’, says Merryck Lowe, partner in BDO’s forensic division. ‘You tend to be viewed as the enemy by both parties and given correspondingly little assistance or access to information,’ he says. ‘And then you are roughed up by both sides at court.
‘When you have sensible law firms and sensible clients it is absolutely fine. But occasionally you have unreformed clients or firms who don’t buy in to the idea that the SJE is doing their best to be neutral and it can be an uncomfortable process.’
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