Court short

More than a decade after Lord Woolf’s defining report Access to Justice the cost of justice has again been placed under the microscope following Lord Justice Rupert Jackson’s civil litigation review, published in January, dealing with the fundamental rules and principles of the cost of civil litigation.

Experts and forensic accountants who operate in the civil litigation area can expect their costs and work to receive increasing attention from lawyers and the judiciary, and could impact on the work they do.

Justice Jackson argues that the cost of experts will be most effectively controlled by proactive, robust judicial case management. However, the cost of preparation for such a critical case management hearing, together with the amount of time that it would take a Judge to read into the case in order to be fully prepared, makes it unlikely that this approach will get off the ground.

The two recommendations Justice Jackson sets out in respect of expert evidence are that:

* Parties seeking permission to enter expert evidence should also provide the Court with an estimate of costs.

* “Hot tubbing” or “concurrent evidence” for experts should be piloted where all parties agree.

Experts have long been required to provide costs estimates but Justice Jackson’s proposal seems likely to be the start of a judicial management process regarding the content of expert reports and how work is conducted. I envisage that in order to reduce expert costs the next step will be pre-appointment consideration by the Court of what the expert should comment upon and how work will be undertaken.

“Hot tubbing” or “concurrent evidence” is where areas of disagreement between the experts are addressed in a discussion that is chaired by the Judge and where the Judge and counsel can raise questions of each expert. The experts can also question each other.

This is very different to the adversarial struggle of cross-examination and undermining of credentials that often occurs - confirming that the days of the monosyllabic “Boycott” defensive response to cross-examination are numbered. These days it is rare that a case reaches a formal hearing but what is clear is that, despite the rules in place regarding experts and their reports, the Courts do not believe that all of the relevant ground is being covered efficiently.

It should be borne in mind that this costs review follows hot on the heels of the consultation paper issued by the Ministry of Justice dealing with Legal Aid funding reforms where fixed rates were proposed for expert and forensic work that most accounting firms would struggle to sustain.

There’s no doubt that the cost issue is here to stay. In future, accountants working in civil litigation will be from a burgeoning specialist “cottage industry” (with minimal overheads) or offering fixed price projects.

Paul Smethurst is a forensic partner with accountancy firm, CBW (Carter Backer Winter LLP).

Recommendations on witness statements and expert evidence

“I recommend two measures (in appropriate cases) for curbing litigants’ overenthusiasm for prolixity, being (i) case management measures to place controls on the content or length of statements; and (ii) cost sanctions.
Case management: One of the points that was impressed upon me during the Costs Review was that judges should take a more robust approach to case management, to ensure that (realistic) timetables are observed and that costs are kept proportionate. Case management can and should be an effective tool for costs control.

I recommend a number of measures to enhance the courts’ role and approach to case management, including, where practicable, allocating cases to judges who have relevant expertise; ensuring that, so far as possible, a case remains with the same judge; standardising case management directions; and ensuring that case management conferences and other interim hearings are used as effective occasions for case management, and do not become formulaic hearings that generate unnecessary cost (e.g. where directions could easily have been given without a hearing).”

Justice Jackson in review of civil litigation costs: final report, december 2009

Further reading:

cbw.co.uk