The knowledge
Expert witnesses are more in demand than ever, but they must adapt to important new demands, and face a challenge to their traditional immunity. Eduardo Reyes of the Law Society Gazette reports

The evidence of an expert witness can have a dramatic impact on a case. Their acknowledged expertise in their chosen subject gives their testimony huge moral authority in the eyes of the court, and their written reports may be a catalyst to settlement where their view of the evidence is both clear and able to find for one side over the other.

But such a central role can also make them controversial figures. Opposing sides in a case often prefer their ‘own’ experts, and where an expert’s evidence is later shown to be faulty, they have been the subject of huge anger. The growing demand for expert witnesses, though, shows that trust in experts remains high.

For the many experts who are still willing to serve the justice system, 2011 will have a number of challenges. For those working on legal aid cases, there is the prospect of a 10% reduction in their fees – equivalent to £11m per annum. And 2011 starts with the case of Jones v Kaney at the Supreme Court, which will scrutinise experts’ traditional immunity from suit. Lord Justice Jackson has proposed in a review of the cost of civil cases that not all experts’ costs should be recoverable. And acting as expert for both sides in disputes, as a ‘single joint expert’, has its pressures, both ethical and practical.

Time and cost
It is more than a decade since Lord Woolf focused on ways that the use of expert witnesses in litigation could be changed. Woolf aimed to reduce the time and cost of litigation – for the most part, this was to be achieved by demanding the parties set out their case earlier, ­according to a strict timetable, and that incentives were created for offers to be made earlier rather than later. He also thought that the court could more often use the services of a single agreed expert – thereby reducing cross-examination time, as well the fees of the experts themselves.

This year, Lord Justice Jackson’s review of the costs of civil justice also made recommendations on how the process of expert evidence should be run. As happened with Woolf’s proposals, many experts are sceptical about Jackson’s proposals – they have a sense that they miss the mark. Thayne Forbes, director of Intangible Business, experts in the valuation of all types of intellectual property, explains: ‘The purpose of both of these reviews is ultimately to reduce litigation costs. This is important for the UK to keep its pre-eminent position on the global litigation landscape of course – but are the correct areas in the litigation process being looked at?’

Catherine Rawlin, partner at forensic accounting practice RGL Forensics, questions whether Jackson’s proposals on costs will affect the way expert witnesses are used – especially where use of expert witnesses, although a cost, can be the difference between winning and losing a case. ‘I would have thought that it will still be important for defendants to put their cases together regardless, so I would imagine they would still use experts,’ she argues.

Forbes concurs, noting that the cost of experts is not the primary concern of the parties in many cases. ‘Litigation is an expensive process, but expert witnesses have never been a significant portion of the cost,’ he points out. ‘More importantly, the costs involved need to be looked at in relative terms. Looking at IP litigation for example, the value that expert evidence brings really assists the court when you consider the commercial value of intangible assets, and how important detailed expert analysis is when subjective assets like IP are in play.’

These experts do, however, feel on the whole comfortable with the changes in their duties, in particular the stress now placed on their duty to the court. ‘The fact that you have to sign a declaration to that effect does make it very clear and serious,’ Rawlin says. ‘It is certainly the case that most experts are less partisan than they were before the Woolf reforms.’ But, she adds, there are ‘still a few experts around’ whose views are ‘not entirely independent’.

Loss of immunity?
In addition to their duty to the court, experts face a prospect that some are more alarmed about – a challenge to their traditional immunity. The Jones v Kaney appeal, which the Supreme Court is scheduled to hear this month, could see a change to experts’ immunity from suit – for both their performances giving oral evidence in court, and also for the contents of the reports they prepare.

Martin Baldock, vice president and general manager at digital forensics experts Stroz Friedberg, believes the case has huge importance for the expert witness field. ‘There could be significant consequences if opinions harden around suggestions that expert witnesses should lose their immunity and this actual comes into effect,’ he explains. Most at threat, Baldock notes, will be sole practitioners who ‘have no colleague to use as a sounding board to test the opinion they offer’. As a result, expert witnesses may need to consider investing in additional professional liability cover as a hedge against possible prosecution. ‘They may therefore decide it is simply not worth it if the cost of ­remaining on an expert witness register outweighs potential ­benefits,’ he adds.

The fear is that, because expert witnesses do not rely solely on court work, at a time when they are more in demand than ever, they will opt to focus their professional skills on other work, rather than take on new liabilities. Rawlin, though, does not predict a mass exodus, even if expert witnesses won’t welcome the loss of immunity should it come. ‘I would hope that experts already act to the best of their ability and give independent advice to their client that they feel entirely comfortable with,’ she says. Though, she adds, there may be some important issues to resolve here: ‘It is really important that their duties to the court and the giving of evidence under oath is not seen to clash in any way with the loss of immunity, should this happen.’

Sole expert
A bigger issue for Rawlin and others is the added pressure of appearing as a single joint expert. Aside from the practical implications – it can take longer to get appointed as the expert needs to hear from both sides before proceedings – many experts value the fact that their own opinions are being scrutinised by another expert. ‘It is a lonely place in some respects,’ she says, as the single expert doesn’t have the ‘intellectual “testing” of their opinion’ by an opposing expert.

But on the question of a single witness’s neutrality, Rawlin believes ‘that is not difficult at all’. She points to the practice of preparing alternative calculations assuming the facts that are put to the expert by each party. But are court time and the parties’ costs saved by the use of a joint single expert? Rawlin casts doubt on this: ‘I have experienced many more “questions for experts” when acting as a SJE, compared with acting as a party-appointed ­expert.’

Forbes is also sceptical: ‘The single joint expert witness system too often, and too easily, becomes a contradiction to its aims of reducing time and costs.’ He believes that the use of a single joint witness has the potential to add another ‘battleground’ for disputing parties, as both sides have to agree what the expert will be asked to do and how. ‘This can lead to lengthy debate,’ he explains, ‘which means that the expert, rather than being left to focus on delivering excellent quality evidence, has to manage instructions from two parties whose aims are fundamentally different. This is manageable for those of us who have sufficient experience in giving expert evidence but has the potential to “dilute” the evidence of those who are less experienced.’

There may also be an added pressure in these contexts on sole practitioners, as expert witnesses from larger practices have the opportunity to gain extra comfort by testing their views against colleagues. As Baldock notes: ‘In large firms such as ours, where all expert opinion is subject to multiple peer review before being offered in court, risks are much reduced.’

Whether it be public bodies, companies or law firms, those who rely on expert witnesses should be keeping a weather eye on how those experts are dealing with the increased pressures they face. After all, this is not a primary source of ­income for them – and at a point when demand for their services is at its highest, expert witnesses could simply return to their day jobs.

Expert demand in number

• 54% of experts saw an increase in instructions in 2010*.
• 9% of experts reported a decrease in instructions over 2010*.
• 37% – the rise in IP cases heard in the High Court in 2009.
• 10%, or £11m – the reduction in experts’ fees proposed in the Ministry of Justice’s 2010 Legal Aid green paper

Source: the Bond Solon Expert Witness Survey

Expert immunity under scrutiny Jones v Kaney
Paul Wynne Jones v Sue Kaney [2010] EWHC 61 (QB) concerned an application by an expert psychologist for summary judgment to strike out a claim for negligence made against her by the claimant. She wanted to rely on the ‘witness immunity rule’ that provides protection from suit for experts who write reports, give oral evidence, or do other preliminary work for court purposes.

Paul Wynne Jones, the claimant, brought a claim for personal injuries following a road traffic accident. Dr Sue Kaney was instructed to prepare an expert psychology report on his behalf in that case. In her initial report, Kaney suggested a diagnosis of post-traumatic stress disorder (PTSD). The defendant’s expert, by contrast, thought that Jones was exaggerating his physical symptoms. The experts discussed the case and prepared a joint statement.

The statement was signed by both experts and was damaging to Jones’s case, resulting in the claim settling for a considerably smaller sum than originally claimed. It transpired that Dr Kaney had signed the joint statement prepared by the defendant’s expert without any comment or amendment. The claimant then made a claim for negligence against her.

Dr Kaney’s application for summary judgment to strike out the claim relied on the Court of Appeal decision in Stanton v Callaghan [2000] QB 75 CA, a case that involved an expert structural engineer.

Arguments made against Stanton v Callaghan being relied on were first, that in Arthur Hall v Simons [2002] 1 AC 615 a barrister was found not to have immunity from suit. And second, the immunity rules were inconsistent with the right to a fair trial, as guaranteed by the Human Rights Act 1998.

While finding in Dr Kaney’s favour, the judge said: ‘Although I conclude that [Stanton v Callaghan] remains good law, I have doubts as to whether it will continue to remain so for the reasons canvassed by the claimant and the discussion summarised above. I conclude that there is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule cannot support it.’

The judge therefore granted Mr Jones a certificate under section 12 of the Administration of Justice Act 1969. This so-called ‘leapfrog’ meant he could apply to the Supreme Court for permission to ­appeal, without the need for the appeal to be heard first by the Court of Appeal.