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The expert approach

10 December 12

A special feature looking at some current issues concerning expert witnesses, and the influence of cross border developments

by Peter Nicholson

Recent developments in law and practice relating to expert witnesses, or “skilled witnesses” to use the traditional Scottish term, suggest that a survey of some current issues may be timely.

The Society has issued a code of practice for expert witnesses engaged by solicitors, which can be found at the beginning of the current Law Society of Scotland Directory of Expert Witnesses, published by W Green. It covers such matters as the content of instructions, duties in relation to acceptance of instructions, wider duties of the expert including the crucial matter of independence, and the preferred scheme of the report. It may be particularly useful to refer a witness based outside Scotland to the code, as there are some marked differences in practice between Scotland and England.

At the outset

Experts agree that, as provided for in the code, a detailed written brief is good practice, if not essential. “The best instructing solicitors are those that give you clear instructions of what they want your report to focus on and when they need it by,” comments David Bell CA, director at forensic accountants Haines Watts, Glasgow. “The clearer the instructions, the better, definitely.” His own instructions have ranged from a numbered list of specific questions, to be answered in order, to those along the lines of “we think we need a forensic accountant’s report”.

Gordon Thomson, managing director of Nationwide Expert Witness Service Ltd, agrees that the instructions should contain a detailed brief covering the objective of seeking an opinion. “In civil cases the full record should be sent with the appropriate counsel notes detailing the thrust of their argument”, he adds.

That is not intended to compromise the expert’s independence or primary duty to the court: “Although rare, we do receive instructions worded in a manner that makes it difficult to accept that an objective view is required. In such cases, if they cannot be resolved by discussion, we decline to accept them.”

David McIntyre, director of expert engineers Cadogans, agrees that a list of particular questions is preferable. He adds that solicitors should avoid terminology such as “negligence” (a matter for the court), as opposed to the standards to be expected of a reasonably competent practitioner.

And the earlier the expert is instructed, the more time is available for consultation and review. This is essential in criminal matters, says Thomson: delays in Crown disclosure and in obtaining legal aid sanction mean that instructing solicitors are often left with little or no time to assess expert reports until within days of a proof, resulting in a detrimental impact on case preparation for the solicitor, as well as wasted court time due to adjournments.

He comments that the changes following the Bonomy review have been beneficial in providing a court oversight in the preparation of both Crown and defence cases. “This in turn has encouraged early consideration and instruction of expert reports, which in many cases can lead to an accelerated outcome and a reduction in costly court time.”

With judicial case management in civil litigation set to increase following the Gill review, Bell compliments the commercial court of the Court of Session as having “a very good handle on its case management”, and as being proactive in moving cases along without delay. “If there is one thing not to do as an expert witness, it is miss a deadline handed down by that court,” he warns.

Principal evidence

A point often not appreciated, especially by experts based in England, is the different approaches to their evidence as between England and Scotland. Whereas in Scotland, the evidence given from the witness box is what matters, irrespective of the existence of a written report, in England the evidence in chief is the report itself, as the Civil Procedure Rules require expert evidence to be given in a written report unless the court directs otherwise.

In Whitehead’s Legal Representative v Douglas [2006] CSOH 178, a report prepared in English form prompted a motion by the other side for commission and diligence to recover documentation reviewed by the expert, including precognitions, being material referred to in the report lodged and relied on by the expert. Lord Carloway however held that because the report itself was not evidence, there was no absolute entitlement to material which might have been used in formulating its conclusions. “Had I decided otherwise,” he added, “the practice of instructing experts may well have had to undergo significant change”: solicitors might feel compelled to compose their own summary of the facts from the precognitions, which would not necessarily advance the interests of justice.

Taking a dip

The English civil procedure reforms following the Woolf report included an attempt to cut the costs and time incurred in relation to expert witnesses by making provision for the instruction of a single joint expert to advise the court. However this has not, says Thomson, “prevented each side in a case having their own self-appointed expert sitting in the wings to advise and critique the court-appointed single joint expert”.

An alternative development that may, if it becomes more widespread, achieve the twin goals of reducing litigation costs while enabling expert opinions for each side to be tested against the other is that of “hot tubbing”, described at Journal, January 2011, 36.

Formally known as “concurrent evidence”, the practice involves the experts from both sides taking the stand together, with the judge or arbitrator leading a discussion between them. It encourages an open and frank discussion directly between both witnesses, without the intervention of cross examination by counsel.

Bell comments that having being involved in cases in Scotland and England, hot tubbing seems to be more popular south of the border and “can be a very useful exercise depending on the type of case that you are working on” – though it does not lend itself to every type of case. “By promoting and facilitating dialogue between parties, it can either resolve issues in their entirety or at least strip out the non-core issues and have these agreed between the parties before the trial date,” he explains.

Initial research in England indicated that the process was regarded as less adversarial, and the opportunity to deal with the issues directly and with greater objectivity was welcomed. Some with experience of the practice say that opposing experts are more likely to find common ground when talking face to face on a key point with their peers.

Experts at risk?

Hot tubbing might provide one possible safeguard for the expert concerned at another recent development. Last year the UK Supreme Court caused some controversy with its ruling in Jones v Kaney [2011] UKSC 13 that what had been regarded as the blanket immunity from suit of an expert witness could no longer be justified. The issue was one of public policy, and the disadvantage to the public in removing the immunity was not such as to justify its retention.

Commenting on the decision for the Journal (May 2011, 8), advocate Geoffrey Mitchell QC argued that it would create uncertainty, not least among the experts on whom we rely to assist our litigations. For the time being, at least, the case does not formally change the position in Scotland, where the courts remain bound by the House of Lords decision in Watson v McEwan [1905] AC 480, but, as Mitchell commented, “the genie is out of the bottle”.

Thomson suggests that the situation that gave rise to Jones v Kaney would not arise in Scotland, being “an example of the English system allowing control of a case to become detached from the legal representatives by a judge ordering an expert meeting to discuss areas of agreement”.

He adds: “This would never happen in an unsupervised way in Scotland as our system, being adversarial, prevents experts being ordered to find common ground by the court.” That does not preclude both sides reaching agreed evidence or opinion, but it ensures that counsel and the instructing agents are “in the loop”. In particular in this connection he approves the practice that has developed in the High Court following the Bonomy review, of early consideration and instruction of expert reports.

With litigation, civil and criminal, seemingly under constant review at present, the role of, and methods of deploying, the expert witness are bound to come under further scrutiny also.

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