There are expert witnesses for every potentially contentious area of human endeavour: doctors, accountants, computer gurus, kitchen fitters and accident scene investigators, for example, could be expert witnesses in cases of medical negligence, fraud, cyber crime, shoddy home improvements and personal injury.
There are also, no doubt, butchers, bakers and candlestick makers sufficiently expert in their trades to give informed evidence in court. And that’s before we consider expert witnesses in criminal trials, who know about bite marks, bullet wounds, poisoning and other dark forensic arts.
Their sheer range of expertise apart, expert witnesses are in the news because the 50th update to the Civil Procedure Rules, which came into force on 1 October 2009, introduced certain changes relevant to them. The Ministry of Justice, which carried out the review, says these changes clarify the definition of an expert and provide guidance on appointing single joint experts (SJE).
In essence, experts are now required to state in their reports that they understand that their overriding duty is to assist the court and that this duty overrides any obligation to those instructing them or their clients. They must confirm they have complied and will continue to comply with that duty and that they are aware of the amendments that took effect from 1 October 2009. They must also commit to a new statement of truth, which calls upon experts to distinguish between what they know to be fact and what is their professional opinion.
Solicitors in turn can now reduce trial costs by, in small claims and fast-track cases, calling expert evidence on a particular issue from just the one SJE. They should also, in another cost-saving measure, ensure that questions they pose to experts are ‘proportionate and appropriate’.
District judge Robert Hill, writing in the Gazette as the update took effect (see [2009] Gazette, 1 October, 18), said the changes were ‘not fundamental’, but were ‘tidying up amendments’ and the practitioners and expert witnesses interviewed for this feature broadly agree with him, with some saying the review has simply ‘tweaked’ the existing rules to make them clearer. But they also concur that developments in law and technology have made the role of witnesses in trials all the more pivotal.
Sarah Woodwark, a partner in the healthcare team at national firm Berrymans Lace Mawer, welcomes the amended rules advocating the use of an SJE in small claims and fast-track cases, but says they have limited application in clinical negligence matters where awards tend to be high. Other problems also stand in the way of sharing witnesses, she says. ‘You can’t share where breach of duty and causation are at issue because both sides want to come to their own opposing view. And you can’t have a privileged conversation with your witness if he or she is shared with the other side.’ She adds that in cases where there are several defendants – such as a trust, a doctor and an ambulance crew – then they might share a witness to cut costs and spare the judge from listening to the same evidence three times.
The kind of witnesses that Woodwark most commonly instructs illustrates the range of expertise required in clinical negligence cases, and they fall into four main categories. Some advise on whether a breach of duty, usually on the part of a doctor, another medical professional or a health trust, has occurred. Others are experts on causation and can testify whether the problem was caused by a breach of duty, or is attributable to an existing illness, or was a recognised risk of surgery. A third category of witness is expert on condition and prognosis – the nature of the current condition and how it will develop in the future. The fourth category advises on quantum: how big an award is required to compensate the claimant for the extra costs and reduced earnings arising from the negligence.
Paul McNeil, head of clinical negligence at City firm Field Fisher Waterhouse and author of a book on the use of expert witnesses, says the amended rules around SJEs could lead to ‘massive savings in costs and prevent unnecessary litigation’ where both parties duplicate evidence from their respective experts.
McNeil would favour an arrangement where the experts did not know which party was instructing them. This might not fit in with our adversarial system of justice, he says, but it would ensure impartial evidence. He also advocates discussions between both sides’ experts to see what can be agreed and where there are still disagreements.
Gavin Irwin, a barrister practising in criminal law at Dyers Chambers, London, recalls that the Law Commission launched a consultation into the admissibility of expert evidence in criminal trials in April 2009. The consultation is now closed for submissions and the report is awaited, but Irwin hopes that, like the review of the CPR, it results in amendments that promote the reliability of experts and reduce costs. He says fields of expertise come and go. ‘Lip-reading evidence was popular in the late 1990s. Courts used it and there were convictions arising from it. But it was discredited after challenges to its scientific proof – defence lawyers asked for proof that it was verifiable and could be replicated. It is now never seen in the courts.’
Facial mapping, a process used by experts to identify people from CCTV stills, is now going through the same rigorous testing of courtroom challenges. ‘But the newest expertise,’ Irwin says, ‘is from people purporting to be able to identify the perpetrator of a crime from the wear pattern on his or her denim jeans. They claim the way your jeans wear, where they fade or crease, is as distinctive as DNA or a fingerprint.’
Irwin has not escaped exposure to the gruesome side of the forensic expert’s art. He recalls a murder case where his client had not killed the victim but had helped dispose of the body. ‘They wore paper suits and face masks while they dismembered it. The smell was so vile they had to use Vicks Vapour Rub to smother it. The role of my instructed expert was to test the face masks for traces of Vicks.’
Peter Daniel, a director at the competition, intellectual property and litigation consultancy LECG, specialises in completion accounts disputes, expert determination and accounting warranty claims arising from contractual agreements. Like Woodwark he can rarely use an SJE, because his cases are exclusively high-value. ‘In the last year I’ve been involved in the valuation of an offshore asset worth in excess of $1.5bn. Most cases range from more than £10m up into the hundreds of millions. But that’s the headline value. My issue can be quite narrow and my evidential input quite small.’
Some of the transactions, he says, involve months of work prior to weeks in court. He participated in one case where each of several accountancy experts from both sides spent an entire week giving evidence under oath. ‘The crossexamination can be very aggressive. You have to remember that your duty is to the court and that the court is looking for objectivity. You need to resist the natural inclination to get angry and have your dialogue with the judge rather than face to face with the cross-examiner. It’s slightly mixed-up, taking questions from one side and answering to the other.’
Peter Sommer, a visiting professor at the London School of Economics and a visiting reader at the Open University, is an expert in digital evidence and computer forensics. He carried out his first digital investigation 24 years ago and is widely viewed as a pioneer in the field. He says the need for digital evidence is not confined to obvious cyber crime, such as hacking or fraud. ‘It’s also required for disputed transactions, for human resources, family and housing matters, and for all forms of non-cyber crime, including murder, forgery, industrial espionage and terrorism.’
The importance of digital evidence has grown rapidly with the huge rise in the use and memory capacity of computers over the last two decades. Sommer says that 97% of British businesses now have a broadband connection and 70% have a website. Almost three-quarters of British households have one or more computers and 93% of them have broadband. The result is a massive volume of data, much of it stored in more than one file. ‘You can delete it in one place, but not everywhere.’
Much of Sommer’s work involves following an audit trail so that information stored – but often hidden – on a computer can be disclosed to the court. ‘Computer forensics depends upon the disclosure of the complete contents of a hard disk. You can’t rely on key word searching because data could be concealed within innocent-sounding files. This can create a conflict between the need for complete e-disclosure and concerns about privacy or commercial confidentiality.’ Such a conflict, he says, is frequently the subject of ‘keenly fought’ legal argument.
Sommer’s services are much in demand. He has been instructed in a wide range of civil and criminal cases, including family and employment, terrorism and murder, defamation and extradition, child pornography and money laundering. At a different point on the scale, Richard Swerdlow founded the Independent Kitchen Advice Bureau (iKAB) two years ago to support consumers, retailers and fitters of new kitchens when faced with disputes over costs or craftsmanship.
Swerdlow says iKAB has surveyors all over the UK producing independent reports into the quality and value for money of the installation whenever problems with a newly fitted kitchen arise. He says: ‘Our first client was a retailer who was having problems getting paid. The customers wouldn’t pay because they said the work wasn’t up to scratch. We commissioned a report and the two sides agreed a settlement.’
Sometimes the customer and retailer jointly instruct iKAB, other times it is a solicitor acting for a customer or retailer who makes contact. Swerdlow says: ‘It can happen that nobody is happy with the report because it is balanced and impartial and all either side really wanted was to prove the other wrong. But the system works – 95% of people, through the mediation of our reports, settle without going to court.’
Mediation is also the service offered by Philip Hesketh, for 18 years a personal injury solicitor instructing experts and now a member of Lancashire-based Northwest Mediation Solutions. His role is to facilitate joint discussions between the experts from both sides, streamlining the process and avoiding serious delays. ‘Mediating means assisting in an impartial way, neither taking sides nor making judgements. But mediation is not the end of the case. It’s helping the case to go forward.’ He adds that he ‘understands the structure of expert reports’ and, under the amended rules, can help highlight the ‘distinction between opinion and knowledge’.
Expert witnesses remain an essential element of the British justice system, impartially and authoritatively laying bare the facts behind the contention at the heart of a case. They are active in proceedings ranging from multimillion-pound commercial disputes and terrorist trials to family, personal injury, medical negligence and employment law hearings. In fact, they are necessary in nearly all litigated cases and, rather than being a self-serving industry, their overriding duty is foremost and always to the court, something the CPR changes serve to strengthen.
This article first appeared in the Law Society Gazette’s Expert Witness feature, published in January 2010.
The article is not a substitute for specific legal advice and should not be relied upon as such.