‘A large litigation support industry, generating a multimillion-pound fee income, has grown up among professions such as accountants … This goes against all principles of proportionality and access to justice.’
The above words come from Lord Woolf’s ‘Access to Justice’, published in July 1996. Two years earlier, His Lordship was appointed to identify, and propose solutions for, the problems of English civil litigation. His report claimed the system was too expensive, too slow, too uncertain and too adversarial. This week, the bulk of the solutions he proposed came into force as the Civil Procedure Rules. They will apply in almost all court cases.
CPR part 35, rule 1: ‘Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings’, reflects Lord Woolf’s apparent belief that too much time and money is wasted on expert evidence. We may not agree with this belief but we shall still have to work within the new rules. At the very least, we shall have to demonstrate that any proposed expert evidence is ‘reasonable’. Also, as the court can now limit the amount of experts’ fees that may be recovered from other parties (on what used to be called taxation), these must be justified from the off.
Everyone agrees, presumably, that quacks and prima donnas cannot be tolerated.
We must, however, also avoid sacrificing the proper examination of a case’s technical issues in the name of saving time and money. This may not be easy, given the apparent widespread acceptance of Lord Woolf’s views on the ‘litigation support industry’.
It will be especially difficult in cases within the new ‘fast track’ (claims under £15,000), where expert evidence will be very restricted indeed.
Lawyers and experts will have to give much more thought, as early as possible, to the factual and legal issues and then satisfy themselves – before trying to convince the court – of the need for expert evidence.
Lord Woolf was, quite rightly, concerned that ‘experts sometimes take on the role of partisan advocates instead of neutral fact finders or opinion givers’. Moreover, experts can now ask the court ‘for directions to assist (them) in carrying out (their) function’ and do so ‘without giving notice to any party’. In the past, the only contact between expert witnesses and the court would probably be at trial. From now on, they will be treated as an ‘officer of the court’ (albeit in name and not law) and will be expected to behave accordingly. I anticipate most expert witnesses will welcome this enhanced, and potentially more intellectually rewarding, role.
The Woolf philosophy is also evident in the provisions for single, joint experts. The courts have long had, but rarely used, this power. That is about to change. CPR 35.7 permits the court to appoint a single, joint expert if the parties can’t agree whom to call. The CPR also raises the profile of assessors, who are appointed by the court on its own initiative without reference to the parties. Assessors were covered by the old rules, but Lord Woolf envisages them playing a greater role in the future ‘to assist the judge in complex cases and … to preside over meetings between the parties’ experts and help them reach agreement’.
The word on the street is that the courts will favour appointing single, joint experts. Indeed, the Leeds High Court has drawn up lists of ‘approved’ experts. I believe the challenge here is to ensure that if a single, joint expert is appropriate, the best one is selected. This will involve would-be experts or assessors building up working relationships with court staff.
Also, we will need to be realistic about who will be the best for a particular case. He or she will not necessarily be the most learned or, conversely, the cheapest. Provided the courts’ enthusiasm for such experts is not driven solely by a desire to save costs, their increased use may improve the quality of English civil litigation. If so, it should be welcomed.
Finally, a new rule on the content of reports demonstrates in a dramatic way the Woolf philosophy. They must state that the expert understands his duty to the court and has complied with his duty and the substance of all material instructions, whether written or oral, on the basis of which the report was written.
Simply put, instructions are no longer privileged. The court will not automatically order their disclosure to the other parties, but may do so if satisfied that there are reasonable grounds to consider that the statement is inaccurate or incomplete. The insistence on impartiality now covers experts’ correspondence file as well as their reports.
At first sight, expert witness work seems less lucrative and more restrictive than in the pre-Woolf days. This is an overly pessimistic view. True, they may find their expertise and methods under much greater scrutiny and subject to much greater criticism than ever before. True, they will no longer give oral evidence at trial for ‘fast track’ cases.
Yet for those who are willing to stick with it, the rewards could be great. Increased access to justice should mean more claims, meaning more instructions. The CPR will encourage parties to think more realistically about their cases. This should mean that they seek experts’ advice earlier, rather than asking them for ‘your usual report’ a week before the deadline.
Consultancy work will grow, especially for those who consistently demonstrate impartiality and professionalism. The challenge both expert witnesses and lawyers face is to demonstrate we can be trusted to handle litigation without the courts needing to act like over-anxious nannies.
Gary Meggitt is a solicitor with Wansbroughs Willey Hargrave.
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