The late Joe Jamail, formerly the wealthiest practising lawyer in the USA, is credited with the observation that “any good trial lawyer knows that if you’ve got one credible expert or scientific study, then you can let the jury decide.” He would have been in luck at this year’s Expert Witness Institute (EWI) annual conference, which was held on 21 September 2017 at Church House in London, where there were experts aplenty. The theme: Inside Out, Upside Down, Experts Under Pressure.
Pressures and challenges
The programme for the event noted that:
“Expert witnesses face an increasing number of pressures and challenges – such as concurrent evidence or ‘hot-tubbing’, fixed fees, personal injury reforms – that will have a far-reaching impact on their role now and in the future.”
Although some would have us believe that we are entering a post-expert world more generally, it was with great enthusiasm that prominent figures such as Jackson LJ, Foskett J, former Law Society president Mike Napier QC, as well as experienced expert witnesses from a wide variety of disciplines, offered their unique insight and advice to assist in the navigation of “these interesting times”. Topics varied from discussions on new forensic science regulations to soft tissue injury. However, although I was interested to learn that most criminals have at least three mobile phones, and soon resigned myself to the fact that chronic low back pain is “an inevitable and untreatable consequence of modern society”, dispute resolution practitioners will be most interested in Jackson LJ’s keynote address, a fixed costs session which considered the competing arguments in a debate-style format, and panel discussions covering issues such as concurrent evidence (hot-tubbing).
Jackson LJ keynote address
Following the unveiling of his Supplemental Report on Fixed Recoverable Costs on 31 July 2017, Jackson LJ’s presence at the EWI conference was a welcome addition to a packed programme.
Acknowledging that his previous reforms, which came into force in 2013, had turned the costs world upside down, Jackson LJ stressed that, in order to deal with excessive costs, it was important to implement changes that did not represent mere twiddling with the rules. In 2009, he identified 16 causes of excessive costs, offering 109 recommendations covering five separate strategies. For the most part, he was of the view that some improvements have been achieved overall; the strategies have now been largely implemented. However, he acknowledged that there is still space for further progress. Taking each strategy in turn, Jackson LJ assessed their success and how to go about achieving any outstanding objectives:
- Amend the rules of procedure, so as to streamline the litigation process and cut out unnecessary work. Jackson LJ cited disclosure as an example. Disclosure often involves huge expense for very little benefit. A range of options are available to cut down on excessive disclosure. However, he noted that the new disclosure rule has not been used sufficiently often.
- Amend the funding rules, so that no method of funding generates increased costs and there are as many different funding options as possible. Jackson LJ believes that there is still room for improvement in terms of increasing options for funding litigation. He noted, for example, that damages-based agreements (DBAs) regulations were not well-drafted because they do not allow for hybrid arrangements (“no win, low fee”). He also argued that third party funding could enable some litigants to access justice, where they cannot afford to litigate otherwise.
- Facilitate and incentivise early settlement of disputes. Alternative dispute resolution (ADR) appears to be readily encouraged where possible, but Jackson LJ considered that where Part 36 is concerned, a claimant should be entitled to a costs award if they beat an offer, even by a very small amount.
- Simplify and streamline the method of quantifying what the loser pays to the winner. Jackson LJ noted four points:
- the provisional assessment pilot in Leeds is producing interesting results;
- more information for summary assessment needs to be provided;
- detailed assessment requires a complete rewriting of the rules; and
- an electronic bill of costs is still at the pilot stage and has not yet been further implemented.
- Control the amount of recoverable costs in advance. Accepting that this proposed strategy is not hugely popular, Jackson LJ reiterated the two ways in which this could be accomplished. The first is to have an ad hoc system of fixed costs, where they are set in advance of each case and turn on the specific facts in play. The second is for fixed costs to become the norm in all fast track cases and in the lower regions of the multi-track, with a proposed intermediate track for straightforward claims valued at up to £100,000, establishment of a working party to develop bespoke processes for clinical negligence claims up to £25,000 together with a grid of fixed recoverable costs, a voluntary capped costs pilot scheme for Business and Property Courts cases up to £250,000, and extension of the Aarhus protective costs rules to all judicial review cases.
This fifth and final strategy has received a notable stormy reception (although one commentator on our blog has offered support). However, Jackson LJ noted that there has been no drop in the number of cases where fixed costs are in place across the fast track (noting, of course, that not all fast track cases use fixed costs). As far as he was concerned, solicitors and barristers are now becoming much more adept at costs budgeting and costs management is working better than previously.
Fixed costs session
Given Jackson LJ’s address, it was fitting that a panel convened to discuss the merits or otherwise of fixed costs. Peter Hurst, former Senior Costs Judge of England and Wales, chaired a debate between David Marshall, Managing Partner of Anthony Gold Solicitors, and Andrew Parker, Head of Strategic Litigation at DAC Beachcroft Claims Ltd.
For David Marshall, two competing principles are engaged: the compensation principle and the proportionality principle. He observed that most fixed costs systems can be found in inquisitorial jurisdictions, whereas our approach takes place within an adversarial arena. Ultimately, however, he accepted that, if a political decision is made on whether we should have or can afford to have a fixed costs system, it is important to recognise that practitioners and experts will have to work in such an environment. Indeed, ultimately, it will be a political decision.
On the other hand, Andrew Parker viewed the issues through a consumer’s eyes. Claims cost money; it is therefore entirely appropriate to advocate for the extension of fixed costs for the right type of case (normally at the lower value end of the spectrum). For him, costs should reward efficiency.
One final overarching theme that emerged at this year’s event was consideration of concurrent evidence, also known as hot-tubbing. It was cited by Martin Spencer QC, the Expert Witness Institute Chair, as one example of the fact that we are living in very fluid times. It is no surprise, therefore, that it dominated a significant proportion of the main panel session, chaired by Mike Napier QC and involving Carr J, Foskett J and HH Sir Peter Thornton QC, former Chief Coroner of England and Wales.
What was interesting to note was the experience of each of the judges as against that of the members of the conference.
For one expert present, speaking from the floor, hot-tubbing rapidly crystallised issues because the judge asked questions that were most pertinent. For another, the narrowing of issues was a quicker process because the two experts had been in discussion with each other. A third opined that the process is an infinitely better method of presenting expert evidence in a medical context, because there are no barristers trying to obfuscate.
Carr J noted that it is rarely (if ever) used in intellectual property cases in the UK (although he recognised that the method has been successful in Australia). Foskett J stated that he wished that he had used it recently, but that it is difficult to assess its appropriateness because often one only fully understands all of the options when a case gets going. HH Sir Peter Thornton QC had no experience of hob-tubbing because there are no rules about evidence in the Coroners Court.
At last year’s conference, it was reported that hot-tubbing has been used sparingly since its introduction in 2013. Even though the phenomenon does appear to be popular with those that have experience using it, its use in the courts has not been phenomenal. It will be interesting to observe whether this popularity results in increased deployment going forward.
Levi Strauss is said to have argued that “an expert knows all the answers – if you ask the right questions”. Certainly, the experts present at the EWI conference were equally adept at asking the right questions and exploring the developments in our changing legal landscape. Across issues such as fixed costs and hot-tubbing, their flexibility and insight continue to be of vital importance. Upside down, inside out, under pressure perhaps, but then it didn’t dampen the spirits or innovation of Queen or Bowie.