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.’