| Americanization of the English Law - Part 7 |
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This page has been reserved for comment by laypersons, professional
colleagues and the media with regard to the pressing legal issues of the day,
real or imagined. Hopefully, the comment will emphasize the good and the
bad of the U.S. and British legal systems, and will suggest areas of
improvement for both. Each of the past six comment pages addressed the new Labour government's proposed changes in the British legal system, with particular emphasis upon "modernization" of rules of civil procedure. This part 7 consists of comments by a practising barrister, familiar with the role expert testimony plays in the judicial process, on the effect of the proposed reforms on that area of law.
Leigh-Ann Mulcahy, Barrister Introduction Expert evidence is an issue which attracted particular attention during the course of Lord Woolf's inquiry into civil justice entitled 'Access to Justice'. This was because the need to engage experts in civil proceedings in many instances leads to excessive expense, delay and (where experts are unnecessarily or inappropriately used) increased complexity. Concern has also been expressed over the inability of experts to maintain their independence from the party instructing them. This article sets out the present legal framework for expert evidence and identifies the key recommendations made by Lord Woolf for the future of expert evidence. The following issues are addressed:
The references to Lord Woolf's recommendations are extracted from the Interim (June 1995) and Final (September 1996) Reports of the Access to Justice Inquiry and the Draft Civil Proceedings Rules. It is understood that these are presently the subject of detailed consideration by Rules Committees and the professional bodies representing experts and the legal profession. It is not yet clear when new rules will be promulgated or indeed what final form they will take. However, the recommendations if implemented in either their present or a substantially similar form will make fundamental changes to the present system of which both experts and legal advisers should be aware. Summary In summary, Lord Woolf's recommendations represent a new departure in that:
Lord Woolf's fundamental premises Lord Woolf's recommendations are based on two fundamental premises. The first premise is that the expert's function is to assist the court. There should be no expert evidence at all unless it will assist the court and no more than one expert in any one speciality unless it is necessary for some real purpose. There will therefore be no expert evidence without the leave of the court and expert evidence will be restricted to evidence which is reasonably required to resolve proceedings justly. This is a major departure from the present situation where the court is probably unable to exclude expert evidence totally where the parties agree that they wish to use it. The second premise is that an expert's role is as an independent adviser to the court. The expert's duty to court will clearly override any responsibility to his client. To emphasise this, an expert's report will be addressed to the court. Single Experts The court has power, on the application of a party, to appoint an independent expert (known as a 'court expert') to inquire and report upon any question of fact or opinion not involving questions of law or of construction (RSC Order 40 rule 1). The court expert is, if possible, a person agreed between the parties and failing agreement is nominated by the court. Such an expert may be cross-examined by any party. This power can only be exercised if one of the parties makes an application and is rarely exercised except by Official Referees. Lord Woolf recommends that in future the parties and the court should be under an obligation to consider in every case whether the appointment of a single expert is appropriate and if the court decides not to appoint a single expert, to give reasons for not so doing. A single expert could be used wherever the case or a particular issue is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions. The single expert would be required to set out in his report his view of the range of possible opinions and the reasons for his own opinion. The benefits of appointing a single expert are that such experts are more likely to be more impartial, the practice should save time and cost and increase the prospects of settlement. It would also assist to level the playing field between parties of unequal resources. This approach would even be encouraged pre-action and failure to comply might have consequences in costs unless a party could justify the decision to instruct his own expert. A single expert might be appointed jointly by the parties, by the court or in such manner as the court may direct. If the court directs the appointment of a single expert, ideally the parties should agree who to appoint and failing this, the court would make the appointment. A single expert might be appointed instead of the parties instructing their own experts, to replace experts instructed by the parties, in addition to experts instructed by them or to assess the evidence to be given by experts instructed by them. The use of a single expert is probably the most controversial of Lord Woolf's proposals and it remains to be seen how the appointment of single experts will work in practice. It will certainly encourage independence and impartiality on the part of experts since both parties will have to agree an appointment and it should eliminate the use of experts as 'hired guns'. As at present, it will be permissible for the single expert to be cross-examined by both parties. It is possible that parties may seek to adduce their own expert evidence not to give oral evidence but for the purpose of testing the single expert's conclusions and/or to provide material for cross-examination of the single expert. This would lead to the involvement of 3 experts where there are presently 2 and would increase costs but perhaps cost sanctions making such costs irrecoverable will discourage such a practice. A Co-operative Approach Where opposing experts are appointed, they should adopt a co-operative approach. Wherever possible, this should include a joint investigation and single report, identifying areas of disagreement where these cannot be resolved. An agreed chronology and statement of facts with a summary of important or disputed facts should be prepared as soon as possible after filing the defence, with a view to identifying non-contentious points from the outset so as to define the scope of the reports. Thereafter, experts should meet (in the majority of cases alone and without lawyers present) and experts would be required to produce a report identifying matters agreed and outstanding areas of difference after such a meeting. This is in contrast to the present system where experts merely have a right to produce such a report. It would be unprofessional conduct for an expert to be given or to accept instructions not to reach agreement when a meeting is directed by the court. A meeting should ideally take place in all cases but at the very least in substantial cases. A party instructing an expert will be under a duty to give every other party notice of the name and address of the expert and the scope of the instructions to be given to him. The notice should be given with sufficient time and information for the other party
The Expert's Report Lord Woolf recommends that any report prepared for the purpose of preparing or giving evidence to a court should be addressed to the court and not to the party commissioning that report. The contents of an expert's report should be as follows. It should:
The expert will also be required to add a declaration to his report that:
The proposed form of wording is under discussion. In order to be admissible in evidence, there must be attached to the expert's report copies of :
Disclosure of Instructions to Experts The report of an expert prepared for the purpose of pending or contemplated civil proceedings or in connection with the obtaining or giving of legal advice is privileged from disclosure. One party cannot compel its disclosure by the opposite party unless such privilege is waived. Similarly communications between solicitors and experts for the purpose of obtaining such a report are privileged. To encourage independence, Lord Woolf has recommended that expert evidence will not be admissible unless all written instructions (including letters subsequent on the original instructions) and a note of any oral instructions are annexed to the expert's report. This is clearly designed to prevent illegitimate pressure being put on experts by legal advisers to alter parts of their reports or even to delete comments which are adverse to that party. It is a recommendation which should be borne in mind by solicitors now since present instructions may be appended to future experts' reports. Disclosure of reports Where the court permits a party to call an expert witness or put in evidence an expert's report, it shall require the party to serve a report of the evidence which the expert intends to give. Where a party has disclosed an expert's report in accordance with the court's directions, any other party may use that expert's report as evidence at the trial. A party who fails to comply with a direction to disclose an expert's report may not use the report at trial unless the court gives permission and the court may not give permission at trial unless the party asking for permission has a good reason for not asking for it earlier. Assessors Courts will be encouraged to make wider use of their powers to appoint expert assessors to assist judges in complex litigation and in appropriate cases, to preside over meetings between the parties' experts and help them reach agreement (as is currently the practice in the Admiralty Court). This will not be cost-effective except in the largest cases. In smaller cases, where there are technical issues, an independent expert might be appointed as an adjudicator, for example in a boundary dispute. Saving costs and avoiding delay In claims on the fast-track (straightforward claims with a value of over £3,000 and less than £10,000 where the hearing will normally last no more than 3 hours) there will be a limit on expert evidence to one expert per side in any single speciality (with an overall limit of two per side) and no oral evidence. Single experts will be used wherever possible. A party will be able to put written questions to an expert instructed by another party about his report once. The expert's answers will then be treated as part of his report. That party may not put written questions again without the leave of the court or the other party's agreement. Video technology will be encourage to be used to avoid attendance at court by doctors. This should save costs and avoid the great inconvenience and disruption to clinical practices caused by lengthy delays waiting to give evidence at court. Another suggestion by Lord Woolf was that a hearing be arranged for the experts to attend on a mutually convenient date before trial when their evidence could be given supervised by a judicial officer and recorded on video tape for use at the trial. In relation to medical evidence, parties will be encouraged to use a wider range of medical experts and to consider using more junior medical experts in appropriate cases to avoid the lengthy delays that occur in awaiting appointments and reports from a select number of senior medical experts. This article contains general information on the present and probable prospective procedure and status of expert evidence based on English law and Lord Woolf's Access to Justice Inquiry's Interim and Final Reports and the Draft Civil Proceedings Rules. Although I have endeavoured to ensure that the content is accurate and up to date, the contents should not be construed as legal advice and I disclaim any liability in relation to its use." Note: Crown copyright is reproduced with the permission of the Controller of Her Majesty's Stationary Office - Crown copyright 1996. PERMITTED USES. This material may be accessed and downloaded onto electronic, magnetic, optical or similar storage media provided that such activities are for private research, study or in-house use only. RESTRICTED USES. This material must not be copied, distributed, published or sold without the permission of the Controller of HMSO.
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