Expert witness - Setting the standard for expert witnesses

The Woolf Reforms have major implications for expert witnesses and Lord Woolf has said that expert evidence was one of the major generators of unnecessary cost in civil litigation. When Lord Woolf first began his enquiry, which culminated in 1996 in his famous Access to Justice report and the subsequent formulation of the new Civil Procedure Rules (CPR), it was felt that there should be a protocol covering the use of experts. A working party was set up by the Association of British Insurers (ABI). A good deal of useful work had been done on a draft protocol, but after summer 1998, the work was incomplete and the working party at a standstill, due to a lack of activity on the part of the ABI. With the publication of the CPR in late January this year, the related practice directions referred to an ‘expert’s protocol’. It was resolved to re-activate the working party and the Vice-Chancellor, Sir Richard Scott, asked me to chair it. The working party was accordingly reconstituted under the terms of references given to it by the Vice-Chancellor, with representatives from the judiciary and the Bar, the ABI, solicitors, and the Lord Chancellor’s Department (LCD). Experts were represented by members of the Academy of Experts and the Expert Witness Institute. After some three months’ intensive work, a draft Code of Guidance was released for consultation and comment – the term ‘protocol’ was dropped because it could imply that the code would be concerned with pre-action matters only – it is intended that the code should apply for the duration of the litigation process.The response to the consultation document was gratifyingly large. Most of the contributions were useful, some outstandingly so, and came from companies and firms, individuals and professional bodies. The task of evaluating these is considerable and complex, but the working party expects that the final document will be the authority in setting out how instructing experts and those instructed should communicate and deal with each other in cases where CPR apply. Comments were particularly sought on a number of specific questions, as well as the whole draft code. These were:
*Does the code make the twin functions of the expert – that of giving advice to prospective litigants and of providing reports that attract all the provisions of Rule 35 – sufficiently clear?
*Is the absolute prohibition relating to contingency fee arrangements correct? Should the paragraph refer specifically to the Law Society’s instruction to solicitors not to engage in such arrangements?
* Is the provision relating to the explanation of the strengths and weaknesses of parties’cases properly restricted to experts’ advice or should it also apply to expert’s reports?
* Do the provisions in paragraph 18 -discussions between opposing experts to clarify the issues in dispute – relating toconferences and discussions, accurately reflect the spirit of the Woolf reforms?
* The code provides for face-to-face discussions between experts only in cases of some complexity, i.e. cases other than fast track. Will this be acceptable?
*Members of the working party were divided on the issue of lawyers being (or not being) at experts’ discussions.
*Has the working party provided sufficient guidance on single joint experts, having regard to the novelty of such a concept?
*Are the provisions for seeking the court useof assessors acceptable?

The working party also asked, in the expectation that the Code of Guidance would be approved by the Vice-Chancellor, if it should remain in order to respond to developments in the case law of rule 35. Almost all of the responses favoured a monitoring of the Code of Guidance in the months ahead. Where expert evidence is required, it makes a vital contribution to the effective administration of justice. It is time expert witnesses received the recognition they are due and the production of the Code of Guidance is a vital step to ensuring that experts are used efficiently and in the interests of justice. Following the conclusion of the consultation period on 11 October (although the replies are still coming in), the working party will be reconvening to consider submissions and agree a final draft for presentation to the Vice-Chancellor. As and when he does approve it, he has indicated that it will be converted into a practice direction. Sir Louis Blom-Cooper QC is the chair of the Vice-Chancellor’s working party on expert witnesses and chair of the Expert Witness Institute.