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JILT 1996 (1) - Lord Woolf - Expert Evidence

ACCESS TO JUSTICE

EXPERT EVIDENCE
Introduction
  1. Lord Woolf published an interim report on Access to Justice in June 1995, in which he identified the uncontrolled adversarial nature of the present system as the main cause of excessive cost, delay and complexity in civil litigation To combat these problems, he recommended a new system in which the courts would have an active role in case management, including control over the use of expert evidence. He proposed a fast track for the majority of cases below £10,000, with a limited procedure and fixed costs. Experts in fast track cases would normally be jointly appointed by the parties, and would not be required to give oral evidence in court. Cases above £10,000 would be allocated to a multi-track, in which the court would have wide powers to define the scope of expert evidence and prescribe the way in which experts should be used in particular cases.
  2. In the second stage of the Inquiry Lord Woolf is looking at specialist jurisdictions and areas of litigation that present particular problems, and is developing a detailed procedure for the fast track. His final report will be published in the summer of 1996, and will be accompanied by the draft of a common code of procedure for the High Court and county courts.
  3. Chapter 23 of the interim report, which deals with expert evidence, has proved to be controversial even among those who generally favour the new system of civil litigation proposed by Lord Woolf. While most would agree that there is a problem, there is no unanimity as to the precise areas of difficulty, and still less on how to deal with them. There is particular concern that the proposals in the interim report would not strike the right balance between, on the one hand, recognition that expert evidence is crucial to many cases; and, on the other, the need to reduce unnecessary expense and delay and the guiding principle that cost should be kept in proportion to the value and importance of the case.
  4. It is important to achieve change in this area. There is general recognition that expert evidence can add significantly to cost and delay in litigation, while having a crucial impact on the outcome of cases. Lord Woolf's interim report sets a challenge to the courts, the legal profession and to experts themselves to find ways of using expert evidence more effectively. This paper therefore reviews the approach adopted in the interim report and its underlying objectives, and seeks views as to the best way in which arrangements for experts could be improved to meet the overall aims of Lord Woolf's Inquiry. It takes account, as appropriate, of responses to the interim report and of consultation already carried out in Stage 2 of the Inquiry on the particular needs of specialist jurisdictions.

    Scope of the reforms

  5. Chapter 23 of the interim report focused mainly on medical evidence in personal injury cases, but the recommendations were intended so far as possible to apply to other areas of litigation involving expert evidence, such as intellectual property or housing and construction cases (in addition to medical negligence, which might be regarded as a specialist branch of personal injury litigation).

    It would therefore be particularly helpful if respondents to this paper could comment on:

    a) which problems and possible solutions (if any) are common to all areas; b) which problems are more acute in particular areas, and what particular solutions are appropriate; and c) which problems (if any) do not arise in particular areas.

    Problems in the use of expert witnesses

  6. The interim report identified the use of expert evidence as a major source of expense, delay and complexity in civil litigation. It made a number of specific criticisms of the way in which expert evidence is used at present. Experts sometimes take on the role of partisan advocates instead of neutral fact finders or opinion givers. There is a serious problem of delay in obtaining experts' reports, and in finding convenient dates for experts to attend court. One of the causes of delay is that solicitors are too selective in their choice of experts, which tends to be limited to the most senior in the field. The present system does not encourage narrowing of issues between opposing experts, or the elimination of peripheral issues. The existing rules of court are thought not to permit the court to exclude expert evidence totally when the parties wish to use it. When a meeting between experts is ordered by the court, the experts are sometimes told by their instructing solicitors not to reach agreement. Experts are sometimes pressed by instructing lawyers to 'improve' their reports. Experts sometimes stray beyond their own field of competence. The courts' listing arrangements cause serious inconvenience for experts who are required to attend trials. a) Is it agreed that these are the main problems in relation to expert witnesses in civil cases? b) Should there be any additions to the list? c) What is the relative importance of each of the problems?

    Lord Woolf's proposed solutions

  7. Lord Woolf's general proposals on case management by the courts should help to address some of these problems by introducing more definite timetabling and encouraging a clearer focus on the real issues in each case. In addition, the interim report identified four specific ways of improving the current situation in relation to experts: appointment of court experts and expert assessors; a clearer role for experts and guidance which emphasises their independence and their duty to the courts; appropriate choice and use of experts; and better arrangements for expert evidence at trial.
  8. A full list of Lord Woolf's detailed recommendations on experts is attached to this paper.

    Court-appointed or neutral experts

  9. Lord Woolf recognized in the interim report that there was strong resistance to the imposition of court-appointed experts, for a variety of reasons. A court-appointed expert could usurp the role of the judge in deciding the case. It would be difficult for the court to identify and appoint the appropriate expert for each case. Experts on a court-approved list would be likely to become 'professional experts' and lose touch with current practice in their fields of expertise. (This is said to happen in other jurisdictions, where the system of court-appointed experts lacks credibility.) Court-appointed experts would not save costs, because in many cases the parties would appoint their own experts in any event. In any event, parties often have to consult their own experts before litigation starts. There are legitimate shades of opinion within many expert fields, and it is important for the court to be made aware of them.
  10. Lord Woolf said that, as long as the criticisms were borne in mind, there would be cases where it would be the best course to appoint an independent expert. He went on to say: 'The court is perfectly capable of deciding which cases would be appropriate for a court expert and then of appointing an expert with the necessary qualifications and ensuring that he is used effectively. In the normal way parties can be left to agree on an expert, and if they cannot agree, there are numerous professional bodies who would be prepared to make the appointment at the request of the court. This approach would avoid the perceived disadvantage of creating a sinecure for court experts. Rules of court should allow the court to appoint an independent expert of its own motion and to limit the parties' power to call any expert except under the direction of the court. The fact that the court has appointed an expert does not mean that the parties should be deprived of the opportunity to cross-examine . . .; or, in the discretion of the court, even to call their own expert if the scale of the case justifies this. While this could mean that three experts might be engaged, which might involve additional costs, the third, neutral expert will usually justify his appointment by helping to achieve a settlement, or in the assistance he will provide to the judge.'
  11. Lord Woolf also recommended that the court should have wider powers to appoint an expert to report or give evidence to the court, and to appoint expert assessors. He said that when an expert was appointed by the court for these purposes, the costs should be the joint and several liability of the parties, except that the court should be able to accept responsibility for the expert's fees, at least in the first instance, if it was satisfied that this was necessary because of the means of the parties. He commented that the savings involved in the sensible use of an expert in the ways proposed would far outweigh the cost of engaging separate experts.
  12. Since the interim report was published, resistance to the proposals on single experts has remained strong. Some of the specific reservations are still directed mainly against court-appointed experts, but some apply equally to joint instructions. It has been suggested, for example, that even in cases where the parties could be persuaded to appoint a joint expert, the expert's report would not be acceptable to the party whose case it did not favour. It has, however, been recognized that there is some potential for the use of joint experts to save costs, albeit in relatively limited circumstances. In medical negligence, for example, it has been suggested that parties might be willing to instruct a single expert on quantum issues, even though this is unlikely to be appropriate where issues of liability.
  13. Where the parties could not agree on a suitable expert, one approach would be for the court to invite nominations from the appropriate professional body. Another possibility, which is being explored in particular for the fast track, is the establishment of local panels of experts in particular fields, working in accordance with nationally agreed standards, who would be acceptable to both claimants and defendants.

    Assuming that the court had a sufficiently wide discretion under new rules of court , in what circumstances would it be appropriate for the court to:

    a) direct the parties to appoint a joint expert; b) appoint a neutral expert of its own motion to report or give evidence to the court; or c) appoint an expert assessor?

    If these powers were exercised in appropriate cases, what would be the effect in terms of:

    a) reducing the cost of litigation; b) reducing delay; or c) encouraging settlement?

    Narrowing the issues between experts

  14. It was accepted in the interim report that jointly instructed or court-appointed experts would not be appropriate in all cases. In order to encourage settlement in cases where both parties instructed their own experts, it would be important to provide an early opportunity for the opposing experts to reach agreement, or to identify the outstanding issues between them.
  15. It has been generally accepted by respondents to the report that more could usefully be done to encourage agreement or narrowing of issues between experts. Wider use of experts' meetings is the most favoured way of achieving this, although there are some problems with this approach. First, at least in some areas of litigation, it appears that experts are forbidden by their instructing lawyers to reach agreement. The interim report recommended (rec. 107) that this should be treated as unprofessional conduct, and that it should be recognized that experts are under a duty to reach any agreement which is appropriate on matters of expert opinion with the expert on the other side. Secondly, there are fears that experts, if they met alone, might encroach on matters beyond their remit, or that the views of one expert might be unfairly overridden by a more experienced or assertive opponent.
  16. To avoid the problem of time and expense being wasted on unproductive experts' meetings, an alternative approach to narrowing the issues might be for the court to order sequential exchange of experts' reports in appropriate cases.
  17. A further suggestion is that excessively lengthy experts' reports could be discouraged by costs sanctions, although care would have to be taken to avoid lengthy and expensive arguments about costs. a) Are there any areas of litigation in which experts' meetings are already used on a routine or frequent basis? If so, have these meetings been found to be helpful in narrowing issues and promoting settlement? b) What procedures could be adopted to facilitate the narrowing of issues at meetings between opposing experts? c) How widespread is the problem of experts being instructed not to agree? Would it be an effective sanction if this practice were treated as unprofessional conduct? d) Should experts' meetings be conducted in private, with no-one apart from the experts present? If not, who else should attend (for example, the parties' solicitors, a neutral lawyer, the procedural judge)? What should be the role of any third party present at the meeting? e) What is the most appropriate stage of proceedings for experts to meet? f) Would it be helpful for the court to order sequential exchange of experts' reports in some cases, and in what circumstances would this be most appropriate? g) Would a costs sanction be a useful way of discouraging over-long reports? h) In addition to experts' meetings, what other ways are there of fostering agreement and defining the issues between opposing experts?

    Impartiality of experts

  18. The interim report included a number of proposals specifically designed to underline and clarify the function of the expert as an independent adviser to the court rather than an additional advocate on behalf of one side. These include recommendations that: a) clear guidance should be given to experts on the primacy of their duty to the court (rec. 104); b) reports prepared as evidence should be addressed to the court (rec. 105); c) reports prepared as evidence to the court should end with a declaration that all relevant material has been included (rec. 106); d) codes of practice on the use of expert evidence should be drawn up jointly by the professional bodies representing experts and lawyers (rec. 109).
  19. Another recommendation, which has proved particularly controversial, was that once an expert had been instructed to prepare a report for the use of the court, legal professional privilege should not apply to communications between the expert and the client or legal adviser (rec. 108). The purpose of the proposal was to ensure that all the expert's relevant views should be disclosed to the court. It has been suggested, however, that it would be easy for lawyers and experts to subvert this intention, for example by delaying instructions on a report for the use of the court as long as possible, or relying on off the record conversations instead of written communication. a) Is it accepted that the recommendations in the interim report would help to ensure that experts' reports are complete and impartial? b) Is the proposed waiver of professional privilege a realistic and achievable way of ensuring that relevant material is not suppressed? What additional or alternative steps could be taken to achieve this aim?

    Improving the quality of experts' reports

  20. Bias or incompleteness are part of a wider problem of the quality of expert evidence. Since the publication of the interim report an appreciable level of concern has been expressed about this, and there is strong support for a system of training and accreditation of experts in particular fields, along the lines of what is already provided by bodies such as the British Academy of Experts.
  21. Some people would like to see a compulsory system, so that only fully qualified and accredited experts would be permitted to appear before the courts or prepare reports for forensic use. Such a system would include the exercise of sanctions against experts who failed to meet the required standard. There is, on the other hand, a fear that compulsory accreditation could exclude potentially competent experts who choose for good reasons not to take it up, and that it could foster an uncompetitive monopoly by experts' who were out of touch with current practice in their field of experience.
  22. The Fast Track Working Group is discussing the possibility of drawing up a standard format for instructing experts, with a view to reducing delay as well as improving the quality of reports. This would include an instruction to list research literature on which the report is based, and an agreed timescale for completion of the report. It may be helpful to extend this approach beyond the fast track, perhaps with separate sets of instructions for specialist areas of litigation such as intellectual property and medical negligence. a) What form of training should be provided for experts, and how can experts be encouraged to take advantage of it? Is enough training provided at the moment? b) Should there be a compulsory system of training and accreditation for experts, with sanctions for those who fail to meet the required standards? c) Would it be helpful to devise a standard format for the instruction of experts in more complex cases as well as those on the fast track?

    Widening the choice of experts

  23. The shortage of people considered competent to act as expert witnesses, with the consequent delay in obtaining reports from them, was identified in the interim report as a source of avoidable delay in litigation. In relation to medical evidence, the report suggested that this problem could be alleviated if solicitors were prepared to instruct a wider range of doctors, not always at consultant level. For personal injury cases on the fast track, the normal expectation would be that a report from the treating doctor would serve for both sides. One of the aims of this approach is to achieve a better match between the qualifications and experience of expert witnesses and the weight and importance of cases. a) Is it accepted that a wider pool of experts could be used with advantage in personal injury and other cases? b) What could be done to overcome the problem that each side feels compelled to match the other's expert(s) in terms of seniority? c) Would this approach have any disadvantages, such as making it more difficult to provide necessary training and maintain standards?

    Access to evidence: inequality of resources

  24. A particular problem arises when one party, usually the defendant or potential defendant, has an easily available source of expertise to which the other party does not have access. This happens, for example, in medical negligence, where a health authority or hospital trust can use its own doctors; or in actions against large chemical or other companies with in-house experts. The potential claimant , on the other hand, may not even know whether he or she has a case worth pursuing without paying for an independent expert to carry out an investigation.
  25. One way of redressing this imbalance would be to introduce a new procedure enabling claimants to apply to the court (either before or after proceedings have started) for an order requiring the defendant to provide an in-house expert's view of a particular situation. This could be particularly helpful to claimants who did not qualify for legal aid, as well as saving legal aid money. a) What would be the advantages and disadvantages of a new power for the courts to order an investigation by a defendant (or potential defendant) and disclosure of the results to the plaintiff? b) Are there any other ways of addressing the problem of imbalance of access to expert opinion?

    Experts' attendance at trial

  26. Lord Woolf recognized in the interim report that arrangements for attendance at trial often caused serious inconvenience for experts. He recommended that the courts should make every effort to avoid the need for expert witnesses to attend, or, when attendance was unavoidable, to reduce the inconvenience involved.
  27. Lord Woolf's recommendations seek to address this problem in a number of ways, first by reducing the need for experts to attend court at all. For fast track cases, in particular, he recommends that there should be no oral evidence from experts. He also suggests that video facilities could be used in cases where oral evidence is needed. One approach would be to set up a live link at the time of the trial, so that the experts at least did not have the inconvenience of travelling to courts. Alternatively, a question and answer session could be recorded at the court before trial, at a time convenient to the experts. When actual attendance at the trial is unavoidable, Lord Woolf's recommendations on case management and timetabling of trials should make it easier to predict the date and time at which the expert's attendance will be necessary. a) What scope is there for using video technology to record expert evidence, and are there any other ways of reducing the number of occasions on which experts need to attend court? b) What practical steps could the courts take to reduce the inconvenience suffered by expert witnesses who are required to attend court?

Please send any comments on this paper, by 11 March 1996, to:

Miss B M Griffith-Williams
Lord Chancellor's Department
Room 6.22
Selborne House
54 / 60 Victoria Street
London SW1E 6QB


Recommendations

  1. The calling of expert evidence should be subject to the complete control of the court.
  2. The court should have discretion, with or without the agreement of the parties, to appoint an expert to report or give evidence to the court.
  3. The court should have wide power to appoint assessors.
  4. Experts should be given clear guidance that, when preparing their evidence or actually giving evidence to a court, their first responsibility is to the court and not their client.
  5. Any report prepared for the purposes of giving evidence to a court should be addressed to the court.
  6. Such a report should end with a declaration that it includes everything which the expert regards as being relevant to the opinion which he has expressed in his report and that he has drawn to the attention of the court any matter which would affect the validity of that opinion.
  7. If experts instructed by the parties meet at the direction of the court, it should be unprofessional conduct for an expert to be given or to accept instructions not to reach agreement. If the experts cannot reach agreement on an issue they should specify their reasons for being unable to do so.
  8. Once an expert has been instructed to prepare a report for the use of a court, any communication between the expert and the client or his advisers should no longer be the subject of legal privilege.
  9. Codes of practice providing guidance as to the practice in relation to experts should be drawn up jointly by the appropriate professional bodies representing the experts and the legal profession.
  10. Unless the plaintiff is relying on the doctor by whom he is being treated, the defendant should be told whom the plaintiff intends to instruct and invited to make any comments as to the proposed instructions.
  11. Before a doctor reports on behalf of a plaintiff or a defendant, the opposing party should have the opportunity to give instructions to that doctor.
  12. If more than one doctor is to be instructed in a case on the fast track, the doctors should be instructed at the same time with a view to producing a joint report.
  13. Every effort should be made by the court to avoid doctors having to attend court, or if they have to attend court, to reduce the inconvenience this involved. Video technology should be used for this purpose.
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