No more open chequebooks for expert witnesses, conference warned
Expert witnesses appearing for both sides in clinical negligence could become the norm, the former head of the NHS Litigation Authority (NHSLA) predicted yesterday.
Steve Walker, who retired as chief executive of the NHSLA in August after 16 years, said solicitors must find ways to bring down costs after the Jackson reforms come into force from next April. Unlike on the continent, it is common in the UK for parties to bring their own experts to give evidence in complicated litigation proceedings.
Speaking yesterday at the Expert Witness Institute annual conference, Walker said: ‘We will be seeing many more joint instructions. It’s a bold step but if the sole purpose of civil litigation is to get to the truth then why not?
‘Some of the most critical and best experts simply can’t spread themselves too widely – at the moment there is a race to get the best experts on each case and there shouldn’t be.’
Walker urged members of the institute not to gain a reputation as giving favourable evidence to either the claimant or the defendant side, warning that ‘the judge will know, and invariably they will lose’. He called for expert witnesses to show ‘honesty, integrity and impartiality’ but said he had experienced ‘many examples of shortcomings’ among the witness profession – particularly if it was the expert’s full-time career.
Walker admitted that corporate defendants did not scrutinise expert reports with the detail they would like and see claims as a ‘process’.
He also predicted that more types of cases are likely to be brought into an automatic portal arrangement, including clinical negligence claims.
Earlier in the day, High Court judge Mr Justice Ramsey said solicitors will have to improve their own understanding of issues such as clinical negligence in the new era of proportionate and predetermined costs.
‘It is no longer appropriate to say to a claimant there is an open chequebook on expert evidence,’ he said. ‘Very often solicitors go to the expert in order to find out initially and say “investigate this as I have not got a clue”. It’s necessary for solicitors to understand and to explain to clients what the position is on costs.’
Comments
Less negligence = less claims = saving money
This is an interesting comment from the leader of an organisation that has recently announced paying a record £1billion in litigation costs (despite lawyer's costs falling).
Here's an idea for you: encourage medical staff to make less mistakes (through effective training and management). Less negligence = less claims = saving money.
Also, may I politely suggest that when claimant solicitors are being criticised by such a high profile individual that they are given the opportunity to defend themselves? How difficult would it have been to make a call to the APIL press office, for example?
Removing independent evidence – what else can a court rely on?
Yet again we see the complete refusal of much of the medical profession to own up to what all medical negligence solicitors know – that while most doctors and hospitals set themselves very high standards, some of them are frankly diabolical. And what’s worse, they don’t like being caught out. Is Mr Walker seriously trying to suggest that it will be normal for medical negligence cases to be considered by a court without independent medical evidence. What other objective evidence can a court rely on in the absence of evidence from an independent medical expert. Is the judge suddenly expected to become a medical expert? Hardly. In the lack of any independent medical evidence surely the court will only have two choices – to rely on the evidence of the doctor whose negligence is being alleged [hardly the ideal independent witness even by the standards of the NHSLA!] or arguments from the claimant’s legal representative [who can hardly claim equivalent medical experience to the doctor in question]. Whose harebrained idea was this – it’s got appeal and human rights written all over it? Thankfully, Steve Walker has retired.
No that is not what he is
No that is not what he is saying. I find myself in the unusual position of .....well defending Mr Walker. The proposition obliquely calls for the use of what could be described as truly independent expert witnesses - ie one expert with letters of instruction from both sides as opposed to the usual defendant hack versus claimant hack.
The irony is that Mr Walker's tenure was expensive and lack lustre with costs increasing year after year. There were never any game changing ideas. He was always the insurance claims handler and he stayed firmly in his box. The tax payer and the health service lost out every year.
No more open chequebooks for expert witnesses
The best solution is that which operates in France and other European jurisdictions: court appointed experts with specific training in the requirements of civil court practice. Whilst Lord Woolf was undoubtedly on the right track when the CPR came into being the reforms did not go far enough and "hired gun" experts are still commonplace. Why are we spending so much money on paying medico-legal agencies to provide hopelessly one-eyed reports from experts who slavishly serve their paymasters' interests?
Agree Simon. Put strict
Agree Simon.
Put strict tariffs on generals for specific injuries, get rid of interest on generals, put in a signicant threshold for gratuitous care claims and a cap and do the same for loss of earnings and hey presto a swift affordable compensation system that will require minimal lawyer input.
Mr Justice Ramsey seems to
Mr Justice Ramsey seems to think that claimant clin neg lawyers pack a bundle of medical records into a carrier bag and simply bung them over to an expert to review.
As a claimant solicitor ( 15 years PQE) with 99% of my cases on a CFA I can honestly say that it is this man , not me, that does not have a clue as to what he talking about.
Why not ask someone to speak at these events who actually has a clue.
Lord Justice Ramsay
I have just spent 20 mins looking for a judgment Lord Justice Ramsay has given in clin neg case.
I can't find one because he practises in the Technology Court.
If he has presided over a clin neg case then could someone post the judgment on this website.
No more open chequebooks for expert witnesses
Whilst I do like the idea of the court appointed expert akin to the French inquisitorial process, that might run up against the pre-action protocol requirement of exchanging arguments including expert opinions before proceedings begin. So if you are doing it properly and putting the proverbial cards on the table you might end up with three experts rather than two. A bit more objectivity, co-operation, common sense and caning experts costs under CPR 44.5 for unreasonable obduracy might help. That way experts might become a little less likely to be the tail that wags the dog.
Over supply of experts in London?
I was shocked to hear that the proposed changes with regard to cost management could see a 30% cap on expert remuneration. I don't see how it's fair to pay such a difference to those experts practicing in London vs those working outside of London albeit, an over supply. I suppose it will give more scope for solicitors when choosing an expert to work on a clinical neg claim, but it seems unfair from an outsider looking in. Just an observation!