The Gazette looks at the greatly altered landscape in which expert witnesses are now expected to operate.
Expert witnesses have been in the political and judicial spotlight for years. In public policy, from Lord Woolf’s review of civil justice in the 1990s to Sir Rupert Jackson’s reforms enacted earlier this year, the role and cost of experts has come under increased scrutiny.
Reforming ministers, too, have appeared intent on turning down the volume of background noise created by experts who (as they see it), despite being schooled in the same area and subject to the same systems of profession-specific peer review, manage to disagree.
Reducing the number of experts has been one imperative of public policy. And in publicly funded cases, the fees for many experts have been reduced by the Legal Aid Agency, while parties who use experts without prior agreement are warned that experts cannot be paid from public funds.
The phrase ‘exceptional circumstances’ is very widely deployed in the published material that explains this new reality. And however cases are funded, the Jackson reforms place so much emphasis on predicting costs, that even allowing for inconsistent judicial application of the costs regime, recovery for unexpected items has become unreliable.
To add insult to injury, one might observe, in the case of Jones v Kaney (see below) the Supreme Court stripped expert witnesses of their assumed immunity from suit.
Who, one might ask, would be an expert witness?
The answer to this question given by many is that, although they appear as expert witnesses in a context where they are more vulnerable, cheaper, and less well respected, experts feel that it is part of their professional, ethical obligations.
Besides, considered advice from the Medical Defence Union (MDU) reflects the suggestion from many quarters that, post-Jones v Kaney, experts need to be careful rather than fearful. ‘The Supreme Court ruling does not change or introduce a new duty for experts,’ the MDU advises its members. ‘A dual duty to the court and to the client has always been in existence, with your duty to the court being paramount.’
The MDU explains: ‘If it is alleged that you have been negligent in your advice as an expert, or have breached a contractual duty to exercise reasonable skill and judgement, then those who instruct you are entitled to issue proceedings to recover damages.’
If an action is ‘founded in negligence’, the ‘Bolam test’ would apply and an expert would not be in breach of duty if they had acted ‘in accordance with a responsible body of medical opinion skilled in that art’.
It is perhaps the focus on costs, and which costs can be recovered, that will have the more enduring effect on the use of experts. Hardwicke Chambers’ PJ Kirby QC notes that there ‘remains an inconsistent approach from judges as to the extent to which they will exercise proper control over the number of expert witnesses they will allow to be called’. But he cautions against assuming that such judicial inconsistency will limit change.
‘Solicitors are having to exercise more control over experts in ensuring that timetables are complied with and that accurate costs estimates are provided by the experts at an early stage for the purposes of costs budgeting,’ Kirby says. ‘It is essential that solicitors keep experts informed of the strict timetables that are imposed.’
There are costs lawyers who believe the onus on litigators, clients and the courts to run a tighter ship, including in respect of using experts, is overdue. Murray Heining, chairman of the Association of Costs Lawyers, observes: ‘Proceedings are often started without the express approval of the client. There is recourse to counsel, again without the express approval of the client – and expert evidence commissioned without advice given to the client as to costs recovery from an opponent.’
He adds: ‘Greater care here and clear written advice restricts the opportunity of challenge.’ Heining advises that one should obtain the client’s approval in writing prior to every step taken and confirmation in writing of every document and important letter written. ‘A client who has verified the accuracy of a document can hardly have cause for complaint if it later transpires that facts were erroneous and costs wasted thereby,’ he adds.
Notwithstanding concerns over liability and costs, other developments have not only changed, but in some ways augmented, the role that experts play in disputes. ‘Hot-tubbing’, promoted by Jackson LJ, involves experts, independent of advocates, reviewing each others’ testimony. Hardwicke Chambers’ Kirby says: ‘The increasing use of “hot tubbing” of experts at trial has caused some trial advocates concern that they are losing control of the course they wish to adopt in presenting the evidence and in exploring the same.’
The growing use of experts in mediation is another development. ‘These are interesting times for expert witnesses,’ notes Thayne Forbes, joint managing director at intellectual property specialist Intangible Business, pointing to developments in the use of expert evidence in mediations. ‘Mediations are now mainstream, and experts are increasing being deployed in mediations in a much freer way than would be possible in court.’
Experts, Forbes points out, can attend a whole mediation, part of it, or none of it. He adds: ‘It’s a forum where hot-tubbing and variants are being more frequently deployed, with the potential for establishing common ground and highlighting strengths and weaknesses. In particular, the mediation tool of arranging meetings of experts in front of clients and the mediator, but with no lawyers present, often flushes out some interesting issues.’
One particular mediation tactic, which Forbes notes is becoming more frequent, is to ask experts to submit a framework for quantifying a claim. He explains: ‘If the claim is ultimately about money, as many are, much beneficial focus and efficiency comes from analysis and debate around expert quantification of that money.’
There is also a direct link to the Jackson reforms, he adds: ‘Mediations are now increasingly being used to limit and control expert costs without the risks of compromising an expert, and this has become a critically important area after the Jackson reforms. Excessive costs through the use of experts need to be curbed and to that end, single joint experts are also now increasingly being used.’
A similar change has been occurring in international arbitrations where, Fried, Frank, Harris, Shriver & Jacobson partner Justin Michaelson notes, it is seen as ‘a real sign of progression – it really sorts the issues out’.
‘The expert has to sit next to his counterpart and pass the red-face test,’ Michaelson explains. He argues that in the normal adversarial format, experts ‘may be happier to go to the outer reaches of what is acceptable’, but that, ‘when placed next to their colleague and peer, they tend to react differently’.
He concludes: ‘In my view, this is the best way for a judge to assess what the court is being told, because over the past 10 years I am afraid to say that expert testimony in certain areas – accountancy, surveyors, valuations, to name a few – has become a cottage industry.’
The Legal Aid Agency guidance on remuneration for expert witnesses was published to coincide with the new maximum expert rates introduced by the Civil Legal Aid (Remuneration) Regulations 2013 and the Criminal Legal Aid (Remuneration) Regulations 2013.
- Lists maximum rates for particular expert types introduced from 1 April 2013 by the remuneration regulations;
- Clarifies when providers should apply for prior authority, including benchmarks of ‘unusual’ hours below which prior authority should not be sought;
- Outlines specific arrangements for certain types of expert, including risk assessment experts, drug and alcohol testing and DNA testing.
Maximum rates for experts had been in place since October 2011, but the 2013 remuneration regulations introduce changes to some of the rates, including:
- Removing the London/non-London rate differentials for many of the expert types;
- Introducing a new higher rate for surveyors working in housing disrepair matters.
Fees or rates in excess of those listed in the Remuneration Regulations will not be permitted unless the LAA considers it reasonable in exceptional circumstances and has granted prior authority to exceed the fees or rates.
Exceptional circumstances are where the expert’s evidence is key to the client’s case and either:
a) the complexity of the material is such that an expert with a high level of seniority is required; or
b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
Where a rate set out in the remuneration
regulations has been exceeded and no authority to exceed the maximum rates has previously been granted, the LAA will disallow any fees exceeding the maximum rates.
Source: the Ministry of Justice
Public funding challenge
Controversially, reforms of expert remuneration in publicly funded cases have eliminated the London weighting for many types of work – meaning that the maximum capped fee for expert witnesses paid by the Legal Aid Agency is now the same outside the capital as within it.
For ‘footloose’ expert work, such as DNA sample testing (set at £315 per test) that may be a funding challenge to which the market can respond. However, concerns have been expressed over the London/non-London parity for medical experts – for example, capped at £144 an hour for cardiologists, and £135 an hour for child psychiatrists.
In some cases, the rates have actually been set lower in London – including the rate for interpreters (£25 an hour in London, £32 an hour elsewhere), haematologists (£90 compared with £122 an hour elsewhere), and gynaeologists (£90 compared with £135 elsewhere). Accountants, GPs and pathologists are among the professionals who retain a London weighting.
Moreover, rates for many expert witnesses are set to be cut substantially within weeks. As justice minister Lord McNally told the Bond Solon experts conference earlier this month: ‘Public funds are being reduced in the justice system… Expert witnesses cannot be immune from this process and … with some limited exceptions, these rates are set to be reduced by a further 20% before the end of the year.’
Anecdotal evidence that rate cuts have combined with experts’ additional liabilities to create problems in cases where experts are needed, but are harder to source, is presently inconclusive. The issue is bound up with disruptive changes to litigation and funding cuts in other parts of the justice system. But while experts’ sense of professional duty may mask the impact of such changes in the short term, it is surely an area that merits close monitoring as these changes bed down.