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Your Witness •
Issue 13 • September 1998
Editorial
Welcome to the autumn issue of Your Witness.
Inside you will find a report that will bring you up to
date on the latest state of the Government’s plans
for the overhaul of legal aid, and on its progress towards
implementing Lord Woolf’s recommendations for the
reform of civil procedures. I am particularly pleased
to draw your attention to the article on traffic accident
reporting by one of our readers, and hope that it may
encourage others to follow suit.
Dr Bird’s contribution in our last issue produced
a lively response from readers who have experienced similar
delays in the payment of their invoices. If late payment
of fees is a concern of yours, then the item on a forthcoming
Act of Parliament should be of interest.
Web Register statistics
You may recall that in the December 1997 issue of Your
Witness we announced the launch of our Web Register.
At that time about one-third of you opted for your complete
details to be made available in this unique on-line resource.
The Web Register works much like ESP, the software
version of the printed Register. After specifying
expertise and geographical search criteria, users receive
back a list of identification numbers (which equate directly
to numbers in the current edition of the printed book)
of all experts who match the chosen search criteria. More
detailed information on those experts who have agreed
to be listed on-line can then be retrieved immediately.
I am pleased to report that the number of visitors to
the site has been growing steadily over the past few months.
In July we had some 500 visitors who conducted around
450 searches. From these searches, on average each expert
was ‘found’ about 10 times, which is, I feel,
very encouraging. Remember, though, that if you did not
opt to have your details included on-line then the visitor
would need to have the printed book to hand to know that
they had ‘found’ you!
An information sheet about the Web Register
is enclosed with this issue. If you are not currently
listed on-line but would like to be added during our next
monthly upload, please contact Kate Porter on (01638)
561590.
Is PI insurance still necessary?
The Court of Appeal decision in the Stanton -v- Callaghan
case is also reported. It would appear to settle once
and for all that expert witnesses are immune from suit
for anything they may do, say or agree to during a court-ordered
meeting of experts. One should be wary, though, of thinking
that the decision relieves you of the need for professional
indemnity cover for your expert witness activities.
The main advantage to an expert witness of having professional
indemnity insurance has always been, and still remains,
the assurance it provides that you will always have the
means to defend your reputation in any action that may
be brought against you, however frivolous, vexatious or
misplaced. All too often clients look for someone to blame
when their case is lost: if it is not their solicitor
or counsel, then it could be their expert witness. Particularly
disgruntled clients may even be tempted to sue. You could
then be put to considerable expense instructing lawyers
on your behalf, and face still more financial strain should
the matter reach court – all regardless of the merits
of the case against you. Furthermore, there is no guarantee
that if the matter is resolved in your favour you will
be able to recover all your legal costs. Insurance covers
you against all such risks and expenses, although with
the proviso that you allow the insurance company to handle
the case on your behalf.
There are many suitable insurance products available,
and since we launched the UK Register of Expert Witnesses
own professional indemnity insurance scheme the costs
of policies have come down to a point where they better
reflect the true level of risk to the insurance market.
If you would like more information about the Register
product please contact Jonathan Thomas at Norwich &
Peterborough Insurance Brokers – the brokers for
the scheme – on (01223) 352421.
Battle of the Chancellors?
In my view the postponement of the withdrawal of legal
aid for personal injury actions is to be welcomed. Whilst
there has been little explanation offered by the Lord
Chancellor’s Department (LCD) for the delay (except
for the usual blandishments that the Lord Chancellor has
been listening to his critics), one is left wondering
about the possible causes.
In an idle moment one might wonder whether the Lord Chancellor
is coming under growing pressure from other government
departments, notably the Treasury and the DSS. It is well
known that the net saving to the LCD’s budget of
the withdrawal of legal aid from such cases is peanuts
– around £35 million in a full year from a total
spend of some £1,600 million. But what of the extra costs
to the DSS of supporting accident victims rendered unable
to obtain compensation for their injuries through the
courts? Could it be that the Chancellor of the Exchequer
has had a word in the shell-like ear of the Lord Chancellor?
Legal
aid and civil justice reform
A much needed respite
When the Lord Chancellor dropped his legal aid bombshell
last October he also made it clear that he would be in
a hurry to sweep away the debris. Legal aid was to be
withdrawn from all personal injury actions from April
this year, and as soon as possible thereafter from all
other claims for money or damages. From the same month
conditional fee agreements (CFAs) were to be permitted
for all civil proceedings other than family cases. During
the summer a White Paper was to be published setting out
the Government’s proposals for those other changes
that required primary legislation, and in the autumn this
was to be followed by the Modernisation of Justice Bill
to give effect to these proposals.
Well, April came and went without any changes in the
availability of legal aid, and so far there has been no
sign of a White Paper. True, a Statutory Instrument to
extend the scope of CFAs was tabled before the summer
recess, but it cannot come into force for a while yet.
And for some months now there have been rumours that the
promised Bill might not make it into the Government’s
legislative programme for the coming session.
It was against this background of disarray that Lord
Irvine announced in July that he would be delaying the
withdrawal of legal aid from personal injury cases until
at least October 1999. Another factor contributing to
this decision may have been the threat of an action for
judicial review had he gone ahead with his plans any sooner.
Be that as it may, it has taken a lot of pressure off
both the legal profession and the insurance industry.
Solicitors now have the opportunity to develop techniques
for assessing risk in undertaking such cases, while insurers
have a welcome breathing space in which to devise and
pilot a wider range of after-the-event legal expenses
schemes. We may hope, too, that the delay will give lawyers
more time to reflect on the dangers inherent in attempting
to instruct expert witnesses on either a contingency fee
or a conditional fee basis.
Civil justice reforms
It seems that a piecemeal approach is also to be expected
in the long-awaited overhaul of civil procedure. Although
the Lord Chancellor has reiterated his determination to
have the new system up and running next April, a recent
consultation paper from his department has indicated that
the introduction of fixed costs for ‘fast-track’
cases – a key element in Lord Woolf’s proposals
– might have to be postponed until other reforms
have bedded-down, perhaps for several years. The paper
also says that Lord Irvine is willing to consider exempting
personal injury claims from the fixed-costs regime –
which is extraordinary considering how large a proportion
of ‘fast-track’ cases are expected to be of
that kind. And if that were not enough to take on board,
the Lord Chancellor’s Department (LCD) admits that
the IT system on which judges will be relying to carry
out their new case management functions will not be ready
in time for the April 1999 start-up.
On the plus side, we now have a full set of the draft
Civil Procedure Rules, issued in June on the LCD web site
().
Publication of the definitive Rules is promised for January
1999. In a House of Lords debate, Lord Woolf went so far
as to say that the delay in installing the IT system might
prove a blessing in disguise, in that there would be a
considerable risk in attempting to implement the new Rules
and new technology at the same time. Two years ago he
was claiming that it would be a disaster if they were
not. We can only hope that his current view proves correct.
More on protocols
We noted in our last issue that preparation was well advanced
of the pre-action protocols recommended by Lord Woolf
in his report on access to justice. Well, two drafts for
two of them have now appeared, and we are assured that
those for two more will be out shortly.
The intention behind pre-action protocols is to encourage
greater openness between parties and, where possible,
enable them to settle their disputes sooner. They aim
to secure both objectives by standardising requirements
and laying down a timetable for the steps that need to
be taken before proceedings are issued. This should both
facilitate and speed up the exchange of relevant information
and, or so it is hoped, improve the prospects for disputes
to be resolved other than by legal action.
The expectation is that the protocols will be incorporated
in Practice Directions, and that these in turn will be
bolstered by sanctions authorised under the new Civil
Procedure Rules. It is likely that from April next year
courts will have the power to penalise parties for non-compliance
of protocols, either by refusing their applications for
time extensions or by awarding, or disallowing, costs.
The drafts published in July are those of the protocols
for personal injury claims and the resolution of clinical
disputes, and the full texts of both are available from
the LCD (telephone 0171 210 8512). We will be aiming to
cover the next two drafts, which deal with road traffic
accidents and the use of experts, in the December issue
of Your Witness.
LAB rethink on medical negligence claims
As readers will know, the Government decided earlier this
year that it would not, after all, withdraw legal aid
from medical negligence claims – at least until such
time as the insurance industry came up with after-the-event
cover for them at affordable premiums. However, at the
same time as he revealed this change of heart, the Lord
Chancellor stipulated that only those solicitor firms
that specialised in medical negligence claims should be
allowed to conduct them on legal aid.
In May, the Legal Aid Board (LAB) announced that it intended
implementing this instruction in January 1999, from which
month legal aid for medical negligence claims would be
made available only through the solicitor firms on the
specialist medical negligence panels of the Law Society
and the Association for Victims of Medical Accidents (AVMA).
This provoked an uproar, with the Law Society insisting
that in no way could 90 or so firms be expected to cope
with the present volume of claims, let alone that to be
expected in future.
The LAB evidently took account of the protests, because
it has since announced that for the first 6 months of
the new scheme all solicitor firms franchised for personal
injury litigation can ‘hold themselves out as franchised’
for medical negligence cases as well. Temporarily, at
least, this should increase the number of firms able to
undertake such cases on legal aid to around 2,000.
Presumably the LAB is hoping that many more of these
firms will apply for, and be granted, the new medical
negligence franchise before the 6-month grace period is
up. We can only hope so, because otherwise there is a
real risk that the requirement imposed by the Lord Chancellor
will reduce access to justice for many of the 11,000+
individuals who bring medical negligence claims each year.
Fewer civil actions
It is often claimed that as a nation we are becoming more
litigious. Yet whatever else may be contributing to the
congestion of the civil courts in England and Wales, and
its attendant consequences of cost and delay, it is certainly
not the number of actions commenced in them. Judicial
statistics show that these have been falling for the past
6 years – during which time, on demographic grounds
alone, they might have been expected to have increased
by at least 2%. Moreover, the latest figures indicate
an acceleration in this downward trend, with county court
actions and Chancery Division proceedings commenced in
1997 both showing a 5% drop on the previous year, and
writs and summonses from the Queen’s Bench Division
recording an unprecedented fall of 15%.
Of course, the great majority of disputes are resolved
without recourse to litigation, just as most litigation
is settled before the parties reach court, and it is impossible
to say whether judicial statistics accurately reflect
the underlying situation. Insurance companies, in particular,
would maintain that even though fewer writs are being
issued, the number of claims they receive is rising all
the time. Which prompts the interesting question, what
is it that is preventing more of these claims resulting
in litigation? Are more of them being settled or abandoned
before that stage is reached? If the former, is it because
the claims are better founded or because the companies
reckon that the cost of fighting them outweighs any advantage
that might accrue? Unfortunately, no-one seems to know;
for while individual insurance companies no doubt keep
records of this kind, industry-wide statistics are completely
lacking.
Another possible explanation for the decrease in civil
court activity is that potential litigants are resorting
to other methods for settling their disputes, although
so far the evidence for this is meagre. While it is undoubtedly
true that greater use is being made of mediation, for
example, that alone can account for only a small part
of the decrease. It does seem likely, though, that alternative
dispute resolution (ADR) methods will have greater impact
in future, especially in relation to construction disputes.
Whatever the reasons for the current trend, it is clear
that fewer cases mean less work for experts as expert
witnesses. That alone should encourage more experts
to explore the roles of arbitrator, adjudicator and mediator.
New
statutory right to interest
The Late Payment of Commercial Debts (Interest)
Act comes into force on 1 November and in some circumstances
it could prove a very useful means of applying pressure
on solicitor firms to pay your fees more promptly. Just
how soon you might be able to take advantage of its provisions,
though, will depend on the size of the firm you are dealing
with.
Hitherto, it has only been possible to claim interest
on an overdue debt if provision for doing so was included
in the contract or the debt was being pursued through
the courts. Now recovery of interest has been made a statutory
right of all businesses (whether sole proprietors, partnerships
or companies) when other businesses pay their bills late.
Where the customer has accepted, either orally or in
writing, a supplier’s credit terms, payment becomes
‘late’ as soon as the credit period expires.
If no credit period has been agreed between them, the
Act sets a default period of 30 days, after which interest
becomes due. This default period starts running from the
later of two actions: either delivery
of the goods (or, in our case, performance of the service)
or receipt by the customer of the supplier’s invoice.
Special provisions apply to late settlement of advance
or staged payments.
The Act also sets the rate to be used in calculating
the interest due. It is defined as 8% above base rate,
which at the time of writing amounts to 15½%.
So much for the good news, now for the less good: the
legislation is to be phased in over a period of 4 years.
For the first 2 years, i.e. from 1 November
1998 to 31 October 2000, only ‘small’ businesses
will be eligible to claim interest under the Act, and
then only from ‘large’ businesses and public
sector bodies (such as government departments and local
authorities). Moreover, it will only be recoverable on
debts incurred under contracts agreed after commencement
of the Act.
Then from 1 November 2000 the Government plans that the
statutory right should be extended to enable ‘small’
businesses to recover interest from other ‘small’
businesses, though again only on debts incurred under
contracts agreed after that date. Finally, the Government
hopes that from 1 November 2002 all businesses and public
bodies will enjoy the right to recover interest on late
payments of debts by other businesses or public bodies,
regardless of size.
Clearly, the important issue here is what constitutes
a ‘small’ business. The Act defines it as one
that had 50 or fewer employees on average over the financial
year prior to the year in which the contract was made.
If the firm had more than 50 employees, it counts as ‘large’.
‘Employees’ means all paid staff including owners,
partners and directors, with part-timers counted pro-rata.
And how do you find out whether the firm from which you
are hoping to recover statutory interest is ‘large’
or ‘small’? You ask. A firm that falsely claims
to be ‘small’ to avoid having to pay statutory
interest on its debts is liable to be prosecuted for fraud.
And what if a customer insists on writing into his or
her contract a remedy for late payment that is less favourable
than that provided under the Act? Well, the courts will
have the power to strike it down. To prevent purchasers
of goods or services abusing their power, the contractual
remedy has to be ‘substantial’. If it is not,
it will be void and the debtor will be unable to rely
on it to defeat a claim for statutory interest. In determining
whether a contractual remedy is sufficiently substantial,
courts would have regard to all the circumstances, including
the rate of interest payable and the length of the credit
period. Should a court conclude that the contractual period
is grossly overlong, it will have the power to replace
it with the 30-day default period provided under the Act.
So there we have it then – a new weapon for use
in the ongoing battle to get solicitors to pay their experts
within a reasonable time frame. If you would like a free
copy of the DTI’s User’s Guide to the new Act
you can obtain one by telephoning 0870 150 2500. In addition,
the Courts Service has produced a leaflet that explains
how to make a claim for interest under the Act, and copies
of this can be obtained from the Registry of your nearest
county court.
Court report
Immunity clarified
The Court of Appeal has now given its ruling in the matter
of Stanton -v- Callaghan, the case discussed
by John Lord in the article he wrote for Your Witness
11 on immunity from suit of expert witnesses.
Readers may recall that the case concerned a property
that had suffered from subsidence damage. Partial underpinning
had been carried out, but this was not successful and
further subsidence occurred. The defendant, a structural
engineer, was engaged by the owners to report on the problem,
and he advised that the partial underpinning had been
inappropriate. To restore the property to its full market
value, total underpinning of the building would be required.
On the strength of this advice the owners made a claim
under their buildings policy which the insurers rejected.
They then brought proceedings against the insurers, instructing
the defendant as an expert witness.
The court ordered a pre-trial meeting of experts to identify
the issues, and at this meeting the defendant, departing
from his previous advice, agreed with the insurers’
expert that the existing partial underpinning could be
restructured at much less cost. This agreement had an
immediate impact, of course, on the value of the claim,
so much so that when the insurers paid £16,000 into court,
the owners felt constrained to accept it. When, however,
they came to sell the property, they could get only £50,000
for it. The owners then brought proceedings against the
expert and his firm alleging that he had been negligent
and in breach of his contract with them. They contended
that his initial advice had been correct all along and
claimed as damages the difference between the full market
value of the property had it been repaired (reckoned to
be £105,000) and the amount they had been able to sell
it for, due allowance being made for the sum recovered
from the insurers.
At two previous hearings the engineer’s lawyers
had applied to have the action struck out on the ground
that, as a prospective witness, he was immune from suit
in respect of any report on which his evidence would be
based or any agreement summarising evidence he would have
given at trial. In both instances, though, the application
was refused, with the judge in the second of them ruling
that it was at least arguable that the expert ought to
have told his clients what he was intending to do before
entering into an agreement which, in effect, abandoned
a large part of their case.
The Court of Appeal has now allowed the expert’s
appeal against the latter decision, and it is clear from
reports of its judgment in the legal press that it did
so on grounds of public policy. The Court stressed the
importance for the administration of justice that trials
took no longer than was necessary to do justice, and that
to that end experts, whose overriding duty was to the
court, were to be encouraged to identify in advance those
parts of their evidence on which they were in agreement,
and those on which they were not.
It further held that in the case in question the defendant’s
reports had all been prepared for the principal, if not
sole, purpose of his giving evidence in court, and that
accordingly he was entitled to immunity from suit ‘to
avoid the tension between a desire to assist the court
and fear of the consequences of a departure from previous
advice’.
In this the Court has evidently followed the reasoning
adopted in another case referred to in John Lord’s
article, namely Landall -v- Dennis Faulkner &
Alsop, and its decision should clear up any remaining
doubts on the matter. It is hard, though, not to feel
some sympathy for the plaintiffs who, through no fault
of their own, have suffered considerable financial loss
as a result.
More criticism from the Patents Court
There have been several instances in recent years when
judges trying cases in the Patents Court have criticised
the quality of the expert evidence they have heard and
the behaviour of the experts providing it. The forthright
comments of Mr Justice Lightman in the case of Alan
Clark -v- Associated Newspapers Ltd provide yet another
example.
The action was one for ‘passing off’. During
the summer of 1997 the Evening Standard published
a series of articles under the heading ‘Alan Clark’s
Secret Election Diary’ and, subsequently, ‘Alan
Clark’s Secret Political Diary’, all of which
were spoofs. The plaintiff alleged that the false attribution
of the articles to him had caused him damage. Both sides
called expert witnesses, and much of the time at trial
was taken up with their cross-examination.
In the judge’s opinion, the expert evidence had
been of very little assistance to him. Of three experts
in particular he commented that either they had never
seriously held the views expressed in their witness statements
or they had experienced a conversion in the witness box
on a par with that of St Paul on the road to Damascus.
One of the defendants’ experts was a former editor
of The Observer newspaper. In his witness statement
he had asserted, ‘There really is no such thing as
bad publicity for generating demand... Anything [the plaintiff]
does or is thought to have done, however disreputable
to some, could in my view only add to his value and demand
for his work.’
In cross-examination, though, the expert conceded that
the position he had held was quite untenable: false attribution
of authorship could be damaging, indeed a nightmare, for
an author such as the plaintiff. In answer to a question
from the judge about the passage just quoted, he admitted
that the word ‘only’ should be deleted. As Mr
Justice Lightman observed in his judgment, that small
change, made as if it were a mere matter of drafting and
of no practical significance, totally transformed this
expert’s evidence from being wholly supportive of
the defendants’ case to being (at best) neutral.
A contributory factor in this case was that the defendants’
solicitors neglected to provide their experts with copies
of statements from the plaintiff’s witnesses which
had been disclosed to them by the other side. These were
to the effect that the witnesses had been misled by the
Evening Standard’s column into believing
that it had been written by the plaintiff. Mr Justice
Lightman was of the view that had the experts seen these
statements they would not have so lost touch with reality
in the evidence they themselves gave, and the trial would
have been over much sooner. He went on to say ‘measures
need to be taken to enforce the recognition by experts
(and the solicitors who instruct them) of their paramount
duty at all times to assist the court: any duty or inclination
to assist their clients must be subordinated to this overriding
obligation.’
Perhaps we should now be adding another principle of
expert evidence to the seven laid down by Mr Justice Cresswell
in the Ikarian Reefer case, namely that solicitors
owe a duty to the court to bring to the attention of the
experts they have instructed any evidence, such as the
other side’s witness statements, that might cause
the experts to reassess or tone down the evidence they
would otherwise give.
And lastly, a reminder about admissibility
Experts need to be aware that their evidence may not always
count as expert evidence. For example, a professional
person cannot be found to have breached his or her duty
of skill and care unless expert evidence is adduced from
persons of the same profession as the defendant as to
the standard of care required in the particular case and
the defendant’s failure to reach this standard. So
held the Court of Appeal last December in the case of
Sansom -v- Metcalfe Hambleton & Co., when
it allowed the appeal of a chartered surveyor against
the decision of a lower court which had found him liable
in negligence on the evidence of a structural engineer.
The Court of Appeal ruled that the engineer’s evidence
did not qualify as expert evidence, as required under
Section 3 of the Civil Evidence Act 1972.
Traffic
accident reporting... plc?
Mr M A Rickett asks whether it is time to consider
privatising RTA reporting
Over the past 10 years I have noticed a steady and accelerating
decline in the standard of police accident reports, and
I believe that I am not alone in this. Police forces generally
are taking less and less interest in reporting road traffic
accidents unless they are fatal or have a special interest,
and the ability of the average police officer to report
an accident properly seems to be diminishing.
There are various reasons put forward for this decline.
Usually, it is that the police are not obliged to obtain
evidence for civil litigation, or that the resources do
not stretch to traffic policing, other than ensuring the
free flow of traffic. Officers themselves will say that
it is the policy of ‘tenure’ which prevents
them from remaining in a specialist branch more than a
few years. They are then not trained to a very high standard,
nor do they have time or enthusiasm to become experienced
in that particular branch. Whatever the reasons, the fact
is that many accidents, if fully reported at the time,
would not require further investigation when at a later
stage they become the subject of litigation.
At present, only the police may attend road traffic accidents
to collect data at the scene. If it is too costly for
them to be able to do this for minor accidents, why not
charge insurers for the service? The money could then
be recouped from the motorists when the matter is settled,
either as a one-off payment or through increased premiums
for a set term.
If, on the other hand, the police are unable or unwilling
to provide a complete service, is it not time that legislation
is introduced to enable other suitably experienced persons
to do the job? Perhaps consideration should be given to
the formation of a separate traffic service, organised
along the lines of the AA or RAC, with the details of
available staff kept on computer to facilitate their prompt
dispatch to the scene. The police would then only be required
to render such assistance as is necessary to enable the
scene to be assessed and marked and the relevant evidence
collected.
It is not possible in the space of a short article to
deal with all the ramifications of a proposal such as
this, but it should be possible to overcome any problems
with it if the will to do so is there. I dare say that
the biggest objection would come from the police themselves,
being unwilling to relinquish any of their authority while
at the same time unable to provide the complete service
that the public in general, and the motoring public in
particular, has a right to expect.
In my view it is high time that interested bodies, such
the legal and insurance professions and the various institutes
with investigators as members, sought a firm statement
from the Association of Chief Police Officers as to what
exactly the police are prepared to do to remedy this state
of affairs. If it falls short of what is needed, further
action should be taken to restore the situation to that
in existence in the late 1950s when all accidents, whether
they resulted in damage only or personal injury, were
fully reported.
M A Rickett
M A Rickett has been an independent traffic accident
investigator since 1988. Before then he served for 30
years in the Metropolitan Police, most of the time with
its Traffic Division or training Traffic Division officers.
Forthcoming
conferences
Society of Expert Witnesses Conference
The Society will hold its AGM and conference on Friday
30 October at the Midland Hotel, Derby. The event will
focus on practical issues for the expert witness and is
designed to offer something for everyone, from beginner
to seasoned veteran.
In the morning, Dr Brian Mahendra will speak on proactive
report preparation and there will be a session led by
Thomas Sands Training on practice development for experts.
After lunch, Judge Adrian Head will discuss the proposed
Civil Procedure Rules and their impact on the work of
expert witnesses. Finally, trainers from Professional
Solutions will present a mock cross-examination, offering
tips on how to handle oneself in court.
The fee for experts in the Register is £75 +
VAT. For more details call Vanessa on 0345 023014.
Bond Solon Conference
The annual Expert Witness Conference arranged by Bond
Solon Training takes place a week later, on Friday 6 November.
Once again, it is being held at Church House, Westminster
and boasts an impressive line-up of speakers.
An innovation this year is the inclusion during the afternoon
session of workshops led by specialists. Delegates will
have the opportunity of discussing in them such varied
topics as working with the CPS, meetings of experts in
child protection cases, working in teams of experts, and
taxation and the expert.
The cost of the conference is £135 + VAT, which includes
a full sit-down lunch, refreshments both morning and afternoon,
and a post-conference reception. To book a place, or for
further details, call Bond Solon Training on Freefone
0800 731 2095.
Letters to the
Editor
Delayed payment of fees
Mrs Catherine Edwards BSc FRICS FSVA, John Chivers Commercial,
writes:
I read with interest the letter from Dr Bird (Your
Witness 12) concerning panels of experts and the
delayed payment of fees.
I, too, have been in this situation with a firm of solicitors
which has been running such a scheme for at least four
years. When I joined its panel, the terms of payment were
six months of date of invoice or on settlement of the
case, whichever came sooner. Then the settlement period
was extended to two years, which I refused to accept,
stating that I felt six months was long enough. I have
not received one instruction from the firm since then,
although I used to write for it on average four reports
a month. As you can imagine, this has somewhat thrown
my estimates for the year!
I feel very strongly that expert witnesses should be
totally impartial. Two years ago I lost some other work
when I was asked by a firm of solicitors which acts solely
for defendant insurance companies whether I would agree
to work only for such defendants in future. I declined
and, again, I have not been instructed by the firm since.
I wish that there was some way in which large firms of
solicitors could be made to act more responsibly in these
matters, but I fear that as they have the clout we will
continue to see this kind of behaviour for many years
to come.
Mr John Curtis MPhil AIPD FRSA, Charterhouse Partnership,
writes:
We, too, have had approaches from solicitors asking us
to wait for settlement of our fees until conclusion of
the case, but without the bribe offered to Dr Bird of
being included in a panel of kept experts. In most, though
not all, cases the reason given has been that the solicitors
themselves cannot get payment from legal expenses insurers
who are funding the claim. In some others, the reasons
have been either that the trade union which is funding
the action will not pay until conclusion, or that plaintiffs
funding themselves have no money to meet experts’
fees before their claims are settled.
What are we to do? Solicitors will be tempted to use
experts who are most likely to fall in with their financial
requirements, irrespective of which expert can best meet
their need for a quality report. So far, we have accepted
instructions on a deferred payment basis and quoted our
usual tariff. In future, we are thinking of doing so only
with an uplift on the fee.
Dr Duncan A Veasey BSc DPM MRCPsych writes:
I am becoming increasingly concerned by comments about
fees and impartiality. I fear, too, that Dr Bird’s
desire to have all experts behave in the same way is very
much a forlorn hope.
There is a clear difference between the issue of contingency
fees, where an expert might be said to have a direct financial
interest in the result of litigation, and the matter which
Dr Bird is commenting upon. I used to take the view that
I would not get involved in delayed payments. However,
as more of the larger companies which instruct me have
had problems with the way legal expenses insurers deal
with disbursements, I have agreed to them on request.
I charge a premium for doing so, since I am in effect
making a loan to whoever is funding the litigation, but
I refuse to accept any arrangement which involves delays
beyond a year.
This seems to me to be a wholly reasonable business arrangement,
since it at least partly covers me for the inconvenience
and cost involved in delayed fees. Moreover, I cannot
see that any reasonable person would regard it as affecting
my impartiality. Nobody is forcing me to take this line,
and nobody is forcing the firms in question to accept
my terms.
We appear to be in danger of adopting the position that
experts cannot be impartial if they are being paid at
all, since they might otherwise be said to have a financial
interest in giving those instructing them the opinion
they require in order to attract more work. I think, though,
that most of us would agree we should be paid for our
services.
I suspect that the courts may take more of an interest
in experts’ fees in future. One senior solicitor
from a firm which acts mainly for defendants in personal
injury actions has pointed out that the insurance industry
has its own ‘panel’ of experts. In my speciality,
there are a number of experts who appear to be instructed
solely by defendants and seem to find the most enormous
difficulty in diagnosing any disorder at all in plaintiffs,
even in the most extreme cases. It is rumoured that their
fees are vastly higher than the sort of figures quoted
in Your Witness, and it can only be a matter
of time before the courts will need to consider whether
their opinions are, in effect, being purchased.
Mr Maurice G Rogers BSc, Thermal Measurement Ltd, writes:
I was once kept waiting 3½ years for payment of my fees
in a case which was eventually settled out of court. The
amount owed was, by my standards, large, and I found the
solicitor who had instructed me quite intransigent about
paying me sooner. I subsequently took the decision to
turn down work unless it was agreed at the outset that
payment was to be made within 30 days of invoice.
Recently, I made settlement within 30 days a condition
of accepting instructions from a firm of solicitors in
Kent. This was, after some hesitation, agreed verbally
and I duly minuted it. When they failed to honour the
agreement I took the matter up with the firm’s senior
partner and a cheque was posted the very next day.
What was of more concern, however, was the fact that
the solicitor handling the matter assumed that my report
would support his client’s case, no matter what was
involved. In fact, it was perfectly clear to me from the
papers I had been sent that the dispute could in no way
settle in their favour. The expert reports for the other
party were perfectly clear and correct, and I would have
forfeited all credibility had I sought to show otherwise.
The solicitor’s response was interesting: ‘We
only asked you thinking that by accepting our commission
you would naturally report in our favour.’ He needed
such a report to bolster his case and assist him and his
clients in winning the action.
The terms independent and expert are
two that I cherish dearly and, come what may, I will never
adjust or temper my conclusions to suit those who receive
my invoices.
Mr J J Connors BSc CEng MIOA, J J Connors Acoustics,
writes:
I have undertaken many instructions after prior approval
by the Legal Aid Board (LAB) and have consequently suffered
long delays in payment of my fees while the instructing
solicitor ‘awaits payment from the LAB’. I have
also been instructed in privately funded actions where
the solicitors have deliberately delayed paying me until
the case was resolved.
I made the decision some months ago that this was not
acceptable. None of my non-legal clients work this way
and, more importantly, neither do my suppliers. As a small
business (which, let’s face it, most experts essentially
are), cashflow is vital. On completion of a report, I
expect prompt payment for a job well done.
For solicitors, the problem goes with the territory,
since their work is not complete until the case is over.
This can be months or years after my input. In private
actions a solicitor would expect advance fees on account.
Why should we experts be any different?
I still undertake LAB-funded work, but now include a
condition in my quotations to the following effect: ‘We
note that our fees for this project will be funded by
Legal Aid. We consider our contract to be with yourselves,
not the Legal Aid Board. Our payment terms are strictly
30 days from the date of invoice. We regret to advise
that we will not accept late payment as a result of delays
by the LAB.’
Your comments on the additional funding required by solicitors
in the future are accepted, but, frankly, who cares? The
problem is theirs, not ours. You mention that a ‘medium-sized
firm could be requiring as much as £450,000... a year’,
but do not mention that this is on a turnover of £ millions.
In my opinion, it is up to the solicitors to make provision
for this in the form of loans, overdrafts or reduced profit-taking,
rather than rely upon the good grace (and creditworthiness)
of their suppliers.
Comment
It is worth pointing out that, in legal aid cases, once
a solicitor has been granted prior authority to incur
the cost of instructing an expert witness, that solicitor
is guaranteed reimbursement of the expert’s fees
up to whatever ceiling figure the local area office sets.
Furthermore, whether or not the solicitor has secured
this authority, he or she may at any stage of the proceedings
apply to the Legal Aid Board for a payment on account
of disbursements (including experts’ fees) incurred
or about to be incurred. It follows that in legal aid
cases there is no need for instructing solicitors to carry
the cost of experts’ fees until their own bills have
been met, although unless they have taken the precaution
of securing prior approval of that cost they do run the
risk of having part of it disallowed on taxation.
Editor
Police co-operation
Mrs Kathleen Cox BA FBPsS CPsychol DClinHyp, Cox Associates,
writes:
Referring to Dr Williams’s letter (Your Witness
11) and the way the police make expensive demands
of him as an expert, we have had similar experience with
regard to viewing videotaped evidence of interviews with
children.
Following the Cleveland enquiry into how allegations
of sexual abuse were handled, strenuous efforts are now
made to interview children once, rather than repeatedly.
We are often asked for our opinion on the reliability
and validity of these interviews and the child’s
responses. Because such tapes often contain sexually explicit
material it is important they are kept confidential. Police
forces vary considerably in their practices, some releasing
the tapes to us under suitable safeguards and others absolutely
refusing to do so.
In addition to the extra expense incurred in time and
travel costs, requiring us to view tapes at the place
where they are being held hampers our work in other ways.
There is rarely time to view them more than once, yet
it is difficult to give a confident opinion on the strength
of a single viewing. Tapes vary in quality, and in some
it may be hard to observe the expressions on the faces
of the interviewer and interviewee. In such circumstances
not one but several viewings of the cogent part will be
necessary.
We have therefore not only encountered the same problem
as Dr Williams, but have been obliged to give less good
opinions because of it.
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