Page 4

4 feature

Continued from page 2

www.legalservicesdirectory.org.uk

An SJE can theoretically favour the party with more resources, he says, but that problem of an inequality of arms is always present. ‘SJEs were lauded as the great hope for cost reduction in civil litigation but it just hasn’t happened because people simply appoint their own shadows.’

New rules for the family courts will mean appointing single experts or SJEs will become standard practice. The question then is – can they work in criminal cases? Kingston University law school professor Penny Cooper, former governor of the Expert Witness Institute, says many argue it simply cannot happen because of the adversarial nature of criminal proceedings.

However, she argues: ‘I think it could because the expert’s duty is to the court. There would have to be a safety valve though – it can’t be a blanket rule that defendants are not allowed a second opinion. My bigger concern, however, is that the power so often lies in the hands of the funder, usually the Legal Services Commission, not the judges. Expert witness work must be funded properly and efficiently.’ What is certainly attracting attention is concurrent evidence – the Australian import known as hot tubbing, which supporters claim can save court time and bring a sharper focus to the issues.

But just how far it is gaining traction here is still open to question. Mr Justice Ryder is considering hot tubbing in his modernization of family justice work, while Lord Justice Goldring, the senior presiding judge for England and Wales, raised the question at a recent Bond Solon expert witness conference of whether it could be appropriate for certain criminal cases. A pilot scheme in the Mercantile Court in Manchester identified 18 suitable cases. Three went ahead, winning praise from the judges, practitioners and experts. The other 15 settled, though it is not clear whether the prospect of hot tubbing played a role in concentrating the minds of the parties.

There have not yet been enough cases to come to any definitive conclusions. The pilot has been expanded to include the Chancery Court in Manchester and will continue until April when practice direction 35 of the Civil Procedure Rules is being amended to allow courts at any stage of the proceedings to direct that some or all of the experts from like disciplines can give their evidence concurrently.

Judge David Waksman QC, the specialist mercantile judge in Manchester, says issues which courts need to consider include whether the expert dispute is ‘standard fare, rocket science or cutting edge’; how far the real issues have been crystallised in the experts’ meeting and is there an obvious logical order; and whether there is any general attack on one or both side’s expert’s credibility or expertise.

He told the Gazette that the expert fields covered in the pilot included accounting, engineering, quantity surveying, valuation and IT.

While data from the pilot is limited because the majority of cases settled, what it does show, he says, is a ‘preparedness’ by lawyers and experts to use the process.

‘One has always to stress, of course, that the key words are “in the appropriate case’,’’he says. ‘There is no suggestion that this will become the norm, it is simply one of the options for taking expert evidence.’ Hot tubbing is increasingly being used in international arbitrations. ‘It is a bit like watching a joust,’ says Lowe. ‘You tend to find the expert who is good at it has a far more decisive victory over his opponent than he ever would in a traditional court situation simply because, once he is prevailing, he isn’t stopped and interrupted.’

He describes one hot tub in an arbitration in Frankfurt where he was one of three experts in three different areas against two experts on the other side. ‘The evidence was interlocking and we all went in to the box for two and a half days,’ he recalls. ‘It was like a game of volleyball – you pass to someone on your side who aims to put it down on the other side of the net.’

Lawyers are rightly nervous of the process, he says. ‘They are reduced to pulling the pin on the grenade, lobbing it in and hoping the expert picks it up and throws it over the other side.’ It also has the potential to change the commercial landscape for experts because it changes the kind of expert who is successful, he says. ‘It puts a premium on experts who are fast on their feet, can think outside the box and, on the spur of the moment, can take an issue in the direction that scores the most points while making sure they stick to giving expert testimony rather than becoming an advocate. If you are junior you may find yourself at risk of becoming partisan but, with experience, you aren’t likely to go down that track.’

David Ellis, managing director in FTI’s economic consulting practice, is an expert in complex financial issues and has testified more than 40 times in a variety of jurisdictions. His experience of a hot tub in Australia illustrates some potential disadvantages. ‘There were so many experts in the case, it became a very slow and protracted process and you didn’t get the interaction it is designed to encourage,’ he says. ‘The lawyers kept it very formal to ensure they retained control so it became more like a progressive cross-examination going down the line.’

For Kaye, hot tubbing is a positive new addition but she warns that, while it may save some court time, it is unlikely to save much in terms of costs because of the work involved for the litigators and experts.

Expert costs are increasingly an issue in alternative dispute resolution. It is already the norm for overall costs to be capped in domestic arbitrations.

Anthony Glaister has practised full time as mediator, arbitrator, adjudicator and conciliator since 2008 after 25 years as a commercial litigator with law firms in London and Leeds. ‘I have the benefit of being on the outside, looking into the gold fish bowl,’ he says. ‘The worst examples of cost disproportionality I have seen recently have been in mediations.  In one case, the arbitrator had capped the costs at £60,000. Quantum was agreed at £150,000 and it came to me for mediation.

‘The winning party wanted £260,000 costs, £80,000 of which were the experts’ costs. The losing party said they would only pay the capped amount of £60,000 but the other  party wouldn’t agree so the offer of quantum was withdrawn and the case had to go back to arbitration.’

In another mediation, the case was worth £8,500 but the five experts involved wracked up costs of £72,000, and that was still only 40% of the overall costs. ‘What is crucial for clients and their lawyers,’ he says, ‘is that, when it comes to experts, they should cut their cloth according to the value of the claim.’With the spotlight so closely on experts, one question being raised is in relation to standards is – do they have a sell-by date? ‘There is a certain minimum level of attainment by personality, maturity, ability to testify and experience in being an expert,’ says Lowe, ‘and that progresses over the years to eminence. Then people retire and the clock starts ticking. When you are no longer actively engaged, there comes a point when you don’t have current issues at your fingertips or the intellectual acuity to do it.’

For Glaister, the sell-by date depends on the area of expertise. ‘Quantity surveying, for instance, isn’t rocket science and I have dealt with an 80-year-old expert. But it does have its physical limitations – it’s no good if you can’t get on a roof to inspect it.’

The key, says Ellis, is to be proactive in maintaining your knowledge. ‘You can keep up with the general principle of valuation, for instance,  and how markets work and what is cutting edge when you are retired – I certainly plan on doing so.’Grania Langdon-Down is a freelance journalist Lord Woolf came up with the idea of single joint expert

www.legalservicesdirectory.org.uk