“If an expert says it can’t be done, get another expert.” So David Ben-Gurion, primary founder of the state of Israel and its first Prime Minister is said to have stated. It would be interesting to know how this notion would have been received at the Expert Witness Institute’s (EWI) Annual Conference 2016, which was held at Church House, London, on 29 September 2016.
At its 20th annual gathering, the EWI’s present Chair, the Right Honourable Sir Anthony Hooper, emphasised that membership now stands at over 1,000, varying from legal professionals to experts from a vast array of specialisms. In hailing its longevity, Sir Anthony also pointed out that the EWI is two years older than Google (other search engines are, of course, available). To reflect the diversity in the EWI membership, a comprehensive programme ensured that all were aware of the variety of issues of interest to experts and the legal profession generally.
The relationship between expert and decision maker
As an indicator of the esteem in which the EWI is held, the Right Honourable Lord Kerr, Justice of the Supreme Court, began proceedings with his keynote address, “The Role of the Expert: the Relationship between Expert and Decision Maker“. Setting aside entertaining anecdotes concerning topics ranging from mesothelioma to the sexual proclivities of oysters, Lord Kerr was keen to stress that the role of experts is “indispensable”, and, indeed, experts in the United Kingdom are of the “highest calibre”. However, he posited that the relationship between decision maker and expert can be difficult. Experts are to assist in disposing of issues in a case; they may, on occasion, give an opinion on what the key issues are. However, just as judges should not trespass on the grounds of the expert, so should the expert not displace the court’s role as decision maker. It can be a tightrope at times, as juries may often rely on expert witnesses, but it remains important that expert witness evidence does not usurp the decision maker role.
Fixed recoverable costs and hot-tubbing
Dr John Sorabji, Senior Fellow at the University College London (UCL) Judicial Institute and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, provided an update on two main developments, which could have significant impacts in the expert world: fixed recoverable costs (which are being discussed in the UK legal world at large), and concurrent expert evidence, also known as hot-tubbing. Citing the September 2016 consultation paper, “Transforming our Justice System“, it is clear that the Ministry of Justice is keen to extend the fixed recoverable costs regime to as many civil cases as possible. There is a belief that the regime works well in other countries, such as Germany, and indeed, on this blog, we have previously featured commentary on its application in Australia. Dr Sorabji made clear that there is a need to:
- Ask what is necessary for a fixed costs regime to work.
- Think about how experts would be appointed, how they work and how this would fit with a fixed costs regime.
- Ask where any proposed figures come from.
On hot-tubbing, a phenomenon born in Australia, Dr Sorabji stated that it has been used sparingly since its introduction in 2013. The Civil Justice Council (CJC) has examined the issues to determine its usefulness, and whether it saves time and litigation. It also asked whether the quality of evidence has improved. Evidence would suggest that, in the context of the Jackson civil litigation reforms, the procedure has not saved costs, but the CJC does not offer an explanation; rather, it awaits a further study on why this is the case. Perhaps it is because of the increase in preparation time.
Dr Sorabji also commented on the fact that there is no consensus on how the process should be carried out. There are a variety of techniques, and he suggested that a training course could be of some use.
Early involvement of experts
In an amusing vignette, Alan M Anderson Phd, FCIArb and Carol A Ludington CPA, CFF, CLP, ACIArb addressed the issue of early expert involvement in the dispute resolution process; in their words, “Eat the frog first: How and why to get experts involved early in a dispute”.
Imagine that you have carried out extensive preparation on a case. You are convinced that it is a slam dunk and will pay off dividends at its conclusion. You telephone your preferred expert and agree to pay their hefty fee, sure that you are going to reap the rewards of a financially lucrative settlement. However, after a couple of weeks, your expert, having reviewed your case, informs you that, although you might win, the recovery award is not going to be anywhere near as generous as you imagined. If only you had consulted with the expert sooner you could have been forewarned and avoided the disproportionate time and expense.
Guided by the Pareto Principle (80% of the results for 20% of the work), Mr Anderson and Ms Ludington urged the audience to consider involving experts much sooner in the process, in order to find out early on what the issues are in terms of liability. An initial expert assessment should not cost very much and would allow practitioners to determine from the start whether they have a good case, and to assess the potential damages recovery. The process, so said Mr Anderson and Ms Ludington, can be carried out with very few documents and basic facts, and at the pre-discovery stage of the potential dispute.
Certainly, it would seem like a good idea to have experts on board from an early stage, and much of the audience appeared interested in the suggestion. However, if one expert offers an opinion at the very beginning of the process, and you later issue and decide that it would be best to use someone else, it would be worth considering that you would be unlikely to recover the costs incurred from having consulted the first expert.
Montgomery v Lanarkshire Health Board
Further attention was devoted to a discussion concerning the landmark case of Montgomery v Lanarkshire Health Board, a Scottish (Supreme Court) case which determined that the analysis of the law by the majority in Sidaway v Board of Governors of the Bethlem Royal Hospital was unsatisfactory. The Supreme Court held that Sidaway (and, therefore, the Bolam test) did not reflect the reality and complexity of the way in which healthcare services were provided. Sidaway held that an adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and consent had to be obtained to ensure that patients were aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. (In Bolam v Friern Hospital Management Committee, a doctor was not necessarily negligent if he conformed to a practice accepted as proper by some responsible members of his profession, even if other members would have taken a different view. Evidence of an accepted practice must be responsible and reasonable.) James Badenoch QC, in response to a question from the audience, asserted that Montgomery could be applied retrospectively, because it held that the Sidaway decision was wrongly decided. He did note, however, that in any given circumstance, reasonableness will prevail. Certainly, it will be interesting to observe how the jurisprudence develops, as there are early signs that Bolam could be increasingly abandoned.
Further issues of the day
The conference also included an address from Professor Stephen Mayson, independent non-executive director and strategic advisor, on the ever changing face of the legal profession, panel discussions from domestic and international practitioners and experts, and a question and answer session with the governors of the EWI.
Of particular note was an update on the workings of the European Expertise and Expert Institute (EEEI) by its President, Jean Raymond Lemaire. The EEEI is a think tank, which gathers magistrates, judges, prosecutors, lawyers, academics and court experts. It was created in October 2006 with the goals of:
- Harmonising expertise proceedings and experts’ statuses, ethics, training and evaluation across the European justice system.
- Improving quality and independence of expertise in the EU.
- Facilitating and building an EU expertise area.
The effects of pending Brexit remain to be seen, but it was interesting to note the existence of such initiatives, which seemingly aim to provide consistent best practice across jurisdictions.
All in all, much food for thought (frogs excluded). EWI Chair, Sir Anthony Hooper, reiterated the commitment experts must devote to independence, impartiality and incorruptibility. These attributes were clearly on display in Church House, suggesting that, as reform continues, the high calibre of experts operating in the UK will be well-placed to adapt to any changes.