The role of the expert after Woolf

Clin Risk 2008;14:85-92
doi:10.1258/cr.2008.080013
© 2008 Royal Society of Medicine

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The role of the expert after Woolf

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Clinical Disputes Forum


Sir Anthony Clarke, MR





Introduction

Top

Introduction
Experts

The Woolf Reports

The post-Woolf position

Future reform?

Hot-tubbing

Conclusion

References

 

Good evening. It is a great pleasure to be here, although itis rather daunting because I have never done a clinical negligencecase, so that I have no experience of what experts in such casesget up to. I did however play a part in a Clinical DisputesForum working group chaired by Roger Clements which consideredthe role of experts’ meetings in Lord Woolf’s proposed new world.I am a great believer in meetings between experts in all (oralmost all) types of case and I like to think that our workinggroup played a significant part in the provisions for discussionsbetween experts in paragraph 18 of the Protocol for the Instructionof Experts in civil claims. I will return to experts’ meetingsin a moment.





Experts

Top

Introduction

Experts
The Woolf Reports

The post-Woolf position

Future reform?

Hot-tubbing

Conclusion

References

 

I think I ought to make it clear that, unlike most (if not all)of you, I do not claim to be an expert on experts. I do howeverhave a little experience of them. My practice at the Bar wasin a comparatively narrow field, namely maritime and commerciallitigation and arbitration, some of which seemed to involvea plethora of experts, some more expert than others. Since beingon the bench I have encountered some problems in this field.

I should concede at the outset that I was party to the decision of the Court of Appeal in the Meadow case that experts do not have immunity at common law against disciplinary proceedings being taken against them arising out of evidence they give in a criminal or civil (or indeed family) case.1 They do of coursehave immunity from civil suit, like any other witness, but wedecided that there was no warrant for extending their immunity.I make that confession at the outset.

My experience of various types of litigation and arbitrationover many years has convinced me (as is perhaps self-evident)that the expert plays a crucial rule in the administration ofjustice, both civil and criminal. Without the expert witnessit would be almost impossible for judges to decide very manytypes of case.

That is generally accepted to be the case, although a trawl of the Internet reveals a large number of expert or consultant jokes, some of which are crueller than others and some of which are cleaner than others. Five one-liners caught my eye:

  • An expert is one who knows more and more about less and less, until he knows absolutely everything about nothing;
  • To spot the expert, pick the one who predicts that the job will take the longest and cost the most;
  • After all is said and done, a hell of a lot more is said than done;
  • If you consult enough experts, you can confirm any opinion;
  • Hiring consultants to conduct studies can be an excellent means of turning problems into gold, your problems into their gold.

I do not believe any of that.Nevertheless, recent cases, such as those involving the lateSally Clark, Angela Cannings and Trupti Patel, which gave riseto miscarriages of justice have shown that the role and statusof experts, such as Professor Meadow and Professor Southall,in criminal and civil trials, as well as family proceedings,remain contentious.

I am sure that we would all agree that the primary duty and role of a court—whether civil, family or criminal—is to do justice in the particular case. To quote Blackstone, ‘[for] the … speedy, universal and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts …’.2 We may not have the great profusion of courts which existed in Blackstone’s day, but what was true then is just as true today: courts exist to render impartial justice between subject and subject. That remains the purpose, and primary role, of our courts. They do so in order not only to ensure that individual’s private rights are upheld as between themselves or as against an organ of the state, but also to further the rule of law. That which tends to undermine their ability to do so not only, in Lord Diplock’s words, undermines the ‘constitutional role of the High Court as a court of justice’, but in doing so tends to undermine the rule of law.3

Doing justice in the individual case involves a court doingtwo things; first, it must ascertain the true facts, and secondly,it must apply the relevant principles of law to those factsso as to provide a judgment, which is both correct in fact andlaw. By that method, assuming law and justice to coincide, thecourt hopes to arrive at a just result.

Since it is obvious, even to the most confident (or dim-witted) member of the judiciary, that he or she cannot be versed in every sphere of human activity, it can readily be seen that in very many cases the court needs expert assistance in order to discharge the first part of its responsibility, namely to ascertain the facts. That expert assistance could in principle come from a court expert or assessor. Indeed, the court has power to appoint such a person and a system of court assessors has grown up (and indeed been of considerable assistance) in some areas. My own experience of it was as a practitioner and later judge in shipping collision cases, where the Admiralty judge is traditionally assisted in matters of navigation by two elder Brethren of Trinity House. In that context, the system has I think worked well, but there are potential difficulties. The parties cannot, for example, cross-examine the assessors, although Counsel can comment on opinions expressed by the assessors.4

Far more widespread than the use of assessors is, of course,the use of experts as witnesses in order to assist the courtin arriving at the true facts thereby helping to facilitatethe court’s ability to arrive at a just determination in civil,family and criminal cases. Expert evidence plays an important,and in many cases, crucial part in the court’s endeavour toachieve a just result. With this in mind I turn to say somethingabout the expert witnesses’ role post-Woolf.





The Woolf Reports

Top

Introduction

Experts

The Woolf Reports
The post-Woolf position

Future reform?

Hot-tubbing

Conclusion

References

 

In his Interim Access to Justice Report, Lord Woolf identified expert evidence as an area which had generated considerable concern during the report’s consultation process. He put it in these terms:

‘The subject of expert witnesses has figured prominently throughout the consultative process. Apart from discovery it was the subject that caused the most concern. The comments were not confined to specific classes of litigation. While the criticisms differed in detail depending on the type of proceedings, which were being considered, the general thrust was the same. The need to engage experts was a source of unnecessary expense, delay and, in some cases, increased complexity through the excessive or inappropriate use of experts. Concern was also expressed as to their failure to maintain their independence from the party by whom they had been instructed.’5

 

Four causes of concern were thus identified. Three of those—cost, delay and complexity—were, of course, not unique to expert evidence. They were symptomatic of what was tellingly described by Professor Cyril Glasser as the crisis in civil litigation, a crisis that was acutely felt in the final decade of the last century and not just in England and Wales, but throughout the world.6 It is the fourth cause of concern—lack of independence,bias or partiality—which I would like to say somethingabout. I do so because, not only can expert bias lead to increasedcost, delay and complexity, but it can undermine the court’sability to arrive at just decisions.

The problem of expert bias is, in that popular phrase, the problem of the expert as hired gun, alluded to (allegedly) by Mark Twain, in his description of the expert ‘as some guy from out of town’.7 The problem with the guy from out of town is that he can just as easily turn out to be Jack Palance as he could turn out to be Alan Ladd (the twin protagonists from the well known 1960s western Shane). It is not a new problem. On the contrary, it is one, which was well understood to be problematic long before the Woolf Reports. The critical view of party-appointed experts is to my mind most vividly expressed by Lord Campbell in the Tracy Peerage case8; a 19th century case arising outof a false claim to a peerage.

The case arose in 1835 when a petition was initially presented to the House of Lords by a Joseph Tracy. It was subsequently re-presented on his death by his son, James, who sought confirmation of a claim to the ‘title and honours of Viscount and Baron Tracy, of Rathcole in the kingdom of Ireland’.9 A central aspect of Tracy’s case was that his descent from William Tracy, the missing son of Justice Tracy, a judge of the Court of Common Pleas, was recorded in a family prayer book and that the relevant entries were made in 1730. If he could prove he was the heir of the long lost William Tracy, the peerage was his. The petition was referred to the Lords Committee of Privileges. Proceedings dragged on, according to the spirit of the age, until in 1843 the Lords Committee gave judgment. Things did not go well for James Tracy; not only did the committee find that he had not proved his right to the peerage, but as Lord Campbell put it in his judgment, the claim gave rise to a ‘strong conviction of fraud and forgery’.10

The question before the Lords Committee was whether the entriesin the prayer book were genuine or not; whether they were madein 1730 or were of subsequent fabrication. Expert evidence wascalled. Sir Frederick Madden, who was both assistant keeperand keeper of the British Museum’s department of manuscripts,gave evidence as a handwriting expert on behalf of Tracy. Inhis expert opinion, the handwriting in the prayer book camefrom the 1730s. Under cross-examination his opinion was notso certain. Sir Thomas Phillips then gave evidence that thehandwriting dated from between 1740–1750. A third expert,Thomas Davis, believed the handwriting to date from 1729–1730.

The Lords did not think much of the experts’ evidence. Lord Lyndhurst, the Lord Chancellor, summed up the Committee’s view of it as, at its ‘utmost effect’, amounting to ‘nothing further than that the writing is not inconsistent with the date’. Lord Brougham and Lord Campbell took less charitable views. The transcript reads as follows:

Lord Brougham: I do not think Sir F Madden a very strong witness, though he was very zealous.

The Solicitor General: Those witnesses could have no interest in the matter, my Lord.

Lord Campbell: Certainly not; but they are witnesses on one side, and I am very sad to say that respectable witnesses are apt to form a strong bias. Those witnesses did, in my opinion, give very extraordinary evidence.11

 

Lord Campbell followed up his remarks to Counsel in his judgment. He held as follows:

‘When the case came before the Attorney General, it was rested wholly upon this prayer book. Now I would say, upon the whole appearance, this entry is a forgery; with the degree of knowledge I have acquired of handwriting, that is the view I have taken of the subject. The person supposed to have written this is supposed to have been born in 1692. There was a witness (Sir Frederick Madden) who undertook to say that it was the writing of about the middle of the last century. I do not mean to throw any reflection on Sir Frederick Madden.’

 

We can all see the ‘but’ coming. Lord Campbell continued to say this:

‘I dare say that he is a very respectable gentleman, and did not mean to give any evidence that was untrue; but really this confirms the opinion I have entertained, that hardly any weight is to be given to the evidence of what are called scientific witnesses; they come with a bias in their minds to support the cause in which they have embarked; and it appears to me that Sir Frederick Madden, if he had been a witness in a cause and had been asked on a different occasion what he thought of this handwriting, would have given a totally different account of it.’12

 

It is easy to feel a certain amount of sympathy for Sir Frederick, who no doubt simply gave the best evidence he honestly could for his client and could not have expected it, and himself, to be criticized in such terms. The problem Lord Campbell identified is the hired-gun problem: the expert comes to court not as an independent expert, but as an advocate for the party who has paid for him. More recently, Sir Thomas Bingham MR (as he then was) expressed similar sentiments as Lord Campbell in Abbey Mortgages plc v Key Surgeons Nationwide Ltd [1996] 3 ALL ER 188:

‘We feel bound to say that in our opinion the argument (that the appointment of a court expert only by agreement of the parties, under Rule 40 of the Rules of the Supreme Court (now defunct) was “pointless”, since it only added an opinion whose evidence carried no more weight than any other) ignores the experience of the courts for many years. For whatever reason, and whether consciously or unconsciously, the fact is that expert witnesses instructed on behalf of parties to litigation often tend, if called as a witness at all, to espouse the cause of those instructing them to a greater or lesser extent, on occasion becoming more partisan than the parties. There must be at least a reasonable chance that an expert appointed by the court, with no axe to grind but clear obligation to make a careful and objective evaluation, may provide a reliable source of expert opinion. If so, there must be a reasonable chance that such an opinion may lead to settlement of a number of valuation cases.’

 

Both Lord Campbell’s and Sir Thomas Bingham’s complaints of bias were reiterated by Lord Woolf in his Interim Report; and as he noted in his Final Report, that criticism met with ‘widespread agreement’13 as did the belief that the ‘expert’s role should be that of an independent adviser to the court, and that lack of objectivity can be a serious problem’.14

This form of bias can manifest itself in either, usually both, of two ways: first, favouring the instructing party’s case; secondly, demonstrating an animus towards the opposing party’s case. In the taxonomy set out by Deirdre Dwyer in a recent paper in the Civil Justice Quarterly, this form of bias can be described as ‘personal bias’.15 Personal bias can arise either consciously or unconsciously, through the experts viewing themselves as an integral part of their instructing party’s team and thereby coming to identify with their case. Equally, it could arise due to the expert already having a prior relationship with the party, although this is more likely to mean the solicitor than the lay client, instructing him.16 As Lord Woolf put it:

‘Most of the problems with expert evidence arise because the expert is initially recruited as part of the team which investigates and advances a party’s contentions and then has to change roles and seek to provide the independent expert evidence which the court is entitled to expect.’17

 

While Lord Woolf understood most of the problems arising from bias to arise in this way there is a second form of bias, which Dr Dwyer refers to as ‘structural bias’.18 This arises where:

‘… the expert genuinely holds his or her opinion in the case, which he or she has formed without subconscious error, and he or she is involved in the case because his or her opinion supports the case of his or her instructing party.’19

 

In the Interim and Final Access to Justice Reports, Lord Woolf set out a number of proposals, which it was hoped would see a reduction in the level of expert-bias, eliminate the culture of the hired gun and underline that ‘impartiality is of paramount importance’.20 It was also hoped that the proposals would reduce the expense and delay engendered by the use of expert evidence, and particularly expert reports.21

Simply put those proposals were, in the Interim Report: case management to identify issues on which expert evidence was needed; appointment of court experts and assessors; clearer guidance to expert’s emphasizing their independence and duty to the court; better arrangements for the choice and use of experts and expert evidence at trial.22 Certain of those proposals received a considerable degree of criticism, especially those that were perceived as reducing the adversarial nature of expert evidence, such as the increased use of a single court or party-appointed expert or assessor.23 By the Final Report, the recommendations for reform focused on the greater use of single experts in areas of established knowledge, greater cooperation between opposing experts, which was to include private experts meetings, the disclosure of experts’ instructions and expert training.24

The proposals found expression in the CPR in a number of ways, such as: the court’s power to restrict expert evidence in CPR 35.4, which goes beyond the old power contained in RSC Ord. 38 r.4 under which the court could limit the number of experts who could be called at trial; the introduction of the court’s power under CPR 35.7 to require the appointment of single joint experts; the introduction of pre-action identification of and agreement between potential litigants on the appointment of experts, as provided for within paragraph 2.4 of the Personal Injury Pre-Action Protocol. The central innovation in respect to improving expert impartiality was however the introduction, through CPR 35.3, of the expert’s duty to the court, which overrides ‘any obligation to the person from whom he has received instructions or by whom he is paid’.25

While it was a novel advance to introduce an express duty within the CPR itself, the expert’s duty built upon the common law position as set out in The Ikarian Reefer [1994] 2 Lloyd’s Rep68.

I cannot resist referring to that case because it was the lastcase I did as counsel at the Bar. I represented plaintiff shipowners who were alleged by underwriters to have deliberatelycast the vessel away. In short it was said that they scuttledher by conniving at her grounding and, when that did not dothe trick, by setting her on fire. The trial lasted some 80days and many experts of every kind were called by both sides.Some of them sought to express opinions, which were outsidetheir own expertise, which was one of the reasons that the judge,Cresswell J, set out what appeared to him to be the principles,which expert witnesses should follow.

He said (at page 81):

‘The duties and responsibilities of expert witnesses

The duties and responsibilities of expert witnesses in civil cases include the following:

  • Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246 at p 256, per Lord Wilberforce);
  • An expert witness should be provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd’s Rep. 379 at p 386 per Mr Justice Garland and Re J [1990] FCR 193 per Mr Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate;
  • An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup);
  • An expert witness should make it clear when a particular question or issue falls outside his expertise;
  • If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd and Others v Weldon and Others, The Times 9 November 1990 per Lord Justice Staughton).
  • If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
  • Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.’

Those principles apply equally today and are reflected in the Expert Witness Protocol, to which I referred earlier and which has been a very successful document prepared under the auspices of the Civil Justice Council by the Expert Witness Institute and the Academy of Experts. I add by way of postscript that in The Ikarian Reefer the plaintiffs succeeded at first instancebut lost in the Court of Appeal, by which time (I cannot resistadding) I was on the bench and not therefore representing them.

The CPR introduced the post-Woolf framework for improving thequality of expert evidence. Two questions naturally arise. First,to what extent, if any, has it done so? Secondly, what furtherimprovements might be made? It is to these two questions thatI now turn.





The post-Woolf position

Top

Introduction

Experts

The Woolf Reports

The post-Woolf position
Future reform?

Hot-tubbing

Conclusion

References

 

There is some degree of concern that post-Woolf problems remain in respect of expert bias. Both Dr Dwyer, who I referred to earlier, and Andrew Edis QC have recently written of their concerns that post-Woolf problems remain: both suggest improvements. Andrew Edis has, for instance, suggested that:

‘the civil justice system continues to suffer from the well-recognized problem of expert evidence which may be unreliable because of a desire by the witness to favour the party calling him.’26

 

Continuing concern about personal bias has also been expressed by Justice Geoffrey Davies.27 He suggests that it is personal, or in his terms ‘adversarial bias’ in that it stems from the very nature of our adversarial system of civil justice, which tends to polarize expert’s opinions. He sees this polarization starting as soon as the expert is appointed.28 For Davies J the problems of bias remain because, as he sees it, single joint experts are only appointed in straightforward cases or on subsidiary points. In this he is no doubt correct: single joint experts are mostly to be found in cases allocated to the small claims or fast track, to simple multitrack cases or where issues are relatively uncontroversial in high quantum multitrack claims. In all other cases, multiple experts remain the norm.29 Despite such advances as the overriding duty to the court, or (we can reasonably assume) expert training through organizations such as the Academy of Experts or the Expert Witness Institute, Davies J fears that such experts remain prey to what Langbein, in his famous article, described as the ‘subtle pressures to join the team’.30 For Davies J statements such as that contained in CPR 35.3 cannot ‘overcome the adversarial imperative’. For him that imperative continues to ensure, despite reforms such as those which followed the Woolf Reforms, that ‘[p]arties to actions and their lawyers [still] want to win; and there will always be experts who will assist in that endeavour …’.31

For some then, concerns remain as to the use of multiple experts post-Woolf. Equally some, such as Bill Braithwaite QC have expressed concerns about the use of single joint experts.32 At the heartof his concerns are that the use of single joint experts potentiallyreduces the quality of evidence provided to the court. It couldtherefore undermine the court’s ability to arrive at a justdecision. One example he gives is of the situation where thecourt finds that the single joint expert’s evidence was so badas to have positively misled the court? There are, of course,many shades of grey before we reach the case where an expertis found to have positively misled the court. Traditionally,the English adversarial system was well able to deal with thissituation, whether the problem with the expert’s evidence arosefrom personal or structural bias: it dealt with it as the courtusually had before it evidence from more than one expert.

Bill Braithwaite raises another concern though with the singlejoint expert, and one not based in the problem of bias. Imaginefour experts, two for the Claimant, two for the Defendant. Threeare true experts in their field. One is not. What would happenif the fourth, inexpert expert, were appointed the single-jointexpert? Or, to expand the idea, if he were a court-appointedexpert? The quality of evidence before the court would be significantlyreduced to say the least. Again, the court’s ability to do justicein the case would, possibly to a significant degree, be reduced,to either the Claimant’s or the Defendant’s detriment.

On the other side of the fence, from Edis, Dwyer and Braithwaite is Lord Justice Jacob, who I think I can safely say is something of an expert on experts. In a response to Davies’ article he noted that post-Woolf:

‘Anecdotally most practising lawyers and judges in England and Wales would say that the quality of expert evidence has improved since the introduction of the express duty by the Woolf rules.’33

 

Sir Louis Blom-Cooper QC and Jacob LJ echo those sentiments in their co-authored concluding chapter to Sir Louis’ excellent book on the expert post-Woolf, Experts in the Civil Courts.They note that not only have the Woolf Reforms brought abouta reduction in the costs and delay attendant on the use of expertevidence, but, importantly to the subject matter of today’slecture, that there is a strong impression that the expert isno longer a hired gun. In other words that there has been areduction in personal bias. I agree.

However, it is clear that concerns about personal bias do remain. Not only that but it seems to me that concerns regarding structural bias must also remain. The concerns and public disquiet in respect of expert evidence, which arose from the roles played by Professor Meadow and Professor Southall in the Sally Clark case can be seen to stem from structural bias, i.e. their genuinely held beliefs which gave rise to their appointments in the case. Traditionally, our adversarial system has been, in my view, generally been effective at dealing with structural bias through the use of multiple experts and through the judge (and jury) weighing up the relative merits of the opposing experts’ views. The Sally Clark case, however, highlights in the starkest terms possible how the court’s ability to do justice can be undermined by structural bias. Equally, it points to the problem of how judges and juries deal with evidence on increasingly complex matters. As Blom-Cooper and Jacob LJ put it:

‘There are times—especially in the world of high technology with society’s growing appetite for dispute resolution in the courts—when the ability of judges [and, I would add juries] to understand the true import of expert evidence and reach an informed and well-reasoned judgment will be taxed to the utmost, and even beyond judicial endeavour.’34

 

They also point out that the same sentiment was expressed as long ago as 1935 by Rich J in Adhesives Pty Ltd v Aktieselskabet Dansk Gaerings-Industri,35 a decision of the High Court of Australia.A problem identified as acute in 1935 must surely now, giventhe massive advances in scientific knowledge and complexitysince then, be more so today.

The Woolf Reforms were for the most part aimed at reducing personalbias, cost and delay. Issues of structural bias and how bestto equip the court, whether judge or jury, to deal with it andreach informed and well-reasoned judgments in the face of highlycomplex and technical expert evidence were not examined. Itwas not of course examined in respect of juries, due to thegeneral absence of the jury in civil trials. It was not examinedin respect of structural bias or judicial ability because theseissues were not then to the fore as much as perhaps they arenow. Equally, these issues cannot really be said to fall withinLord Woolf’s remit to cure the crisis in civil litigation asthey do not to any great extent increase litigation cost ordelay. What they do however is raise issues as to the court’sability to achieve justice in the case by properly finding thefacts to which it has to apply the law.

It seems to me therefore that post-Woolf we need to focus onthe possible means not only further to reduce personal bias,but just as importantly, to find proper and effective meansto reduce the adverse effects of structural bias and betterequip the courts properly to evaluate expert evidence. I willturn to those issues in a moment, but would first like to saya word about what I regard as one of the successes of the reforms.

One of their aims was (and remains) to ensure that evidencegiven in court relates only to the true issues between the parties;hence the importance of identifying what those issues are. Thatis a job for the parties and their lawyers. It is then necessaryto ensure that experts are instructed to advise only on thoseissues. It is next necessary for the experts to focus on wherethey agree and where they do not agree. This, as I see it, isthe great value of discussions between experts, either at ameeting or on the telephone. As I see it, it is for the lawyersto identify the issues and for the experts then to see wherethey agree. A note of that agreement can then be prepared. Theresult of the discussion should be to identify where there isdisagreement and to identify the basis of the disagreement.Does it depend on a view of the facts? If so, it may be thatall will depend upon the judge’s view of the facts. Or is thedifference a technical or scientific difference? If so, whatis the precise difference between them. Once the precise differenceand the reason for it are identified, the oral evidence canbe limited to those issues and much time and money saved.





Future reform?

Top

Introduction

Experts

The Woolf Reports

The post-Woolf position

Future reform?
Hot-tubbing

Conclusion

References

 

It seems to me that a useful starting point for discussion aboutfuture reform is the fundamental nature of our justice systems.The first thing which I think we have to acknowledge is thatany reform has to be tailored to the justice system. This, ofcourse, sounds obvious, if not trite. It is, however, important.

In England and Wales, we have three distinct justice systems: criminal, civil and family. While it is true that each seeks to do justice—to arrive at correct, just decisions—they do so in different ways. Criminal justice does so in what could be described as a full-bloodied, traditional, adversarial manner. Civil justice, while still predominantly adversarial in some ways, is less so in a number of ways post-Woolf than it was previously and is less so than the criminal justice system. As Lord Scott put it in Three Rivers District Council v The Governor & Company of The Bank of England (No. 6):

‘Civil Litigation conducted pursuant to the current Civil Procedure Rules is in many respects no longer adversarial.’36

 

The most obvious aspect of civil justice’s move away from the traditional adversarial process is the introduction of the overriding objective (CPR 1), with its emphasis on active case management by the court, party cooperation and proportionality. While criminal justice has also now introduced active case management (Crim. Proc Rules 3) and an overriding objective (Crim. Proc Rules 1) modelled on that found in CPR 1, it remains more committed to the adversarial framework, which has traditionally characterized Anglo-American justice systems. Its overriding objective contains an explicit imprecation to acquit the innocent and convict the guilty, for which there is no explicit analogue in the Civil Procedure Rules. Equally, there is no requirement that the criminal court take account of proportionality, such as can be found in CPR 1.2 (e).

Family justice, where it places the interests of the child as paramount, is closer to an inquisitorial system in that the court’s role in proceedings, such as care proceedings, is investigative: see, for instance, the House of Lords’ decision in Re L (A Minor), when it held that expert’s reports in such proceedings did not attract litigation privilege due to the investigative nature of the proceedings.37

If, as I think is the case, our three justice systems are diverging in the means and methods by which they achieve justice more so now than they perhaps have done in the past, it is perhaps time to look at expert evidence on a case-by-case basis. By that I mean that there is no reason in principle why expert witnesses and expert evidence should be treated in the same way in each of the three justice systems. Edis raises the following question, while arguing for the abolition of legal professional privilege and expert witness immunity from suit in civil proceedings: Is it

‘… justifiable to argue that participation in criminal and family proceedings concerning the safety of children should attract immunity from suit, while ordinary civil litigation … should not?’38

 

In this context, he notes the recent Department of Health report, Bearing Good Witness: Proposals for Reforming the delivery of Expert Medical evidence in Family Law Cases,39 which sets out proposals for the reforms which while they are suited to family law cases would ‘not be appropriate across the board in civil cases’.40

It seems to me that taking account of differences between the three justice systems may permit some types of reform to take place in one of them. This type of specific, focused reform would potentially defuse a serious issue raised by Thorpe LJ in his judgment in the Meadows case. In his judgment he said this:

‘(225) … the Attorney General rightly emphasized the importance of the regulatory and disciplinary functions of the GMC and other like bodies. The public interest depends upon protection from those who fall below the generally accepted professional standard let alone from the charlatan.

(226) However, the identification of the public interest in the round will vary from one justice system to another. In criminal and civil justice there are many fields of expertise beyond the medical from which dependable witness must be available to the courts. There are a corresponding number of professional men whose livelihood in part, and sometimes in large part, is gained from court work. In a marketplace where supply exceeds demand there is a particular need for ensuring dependability both in the field of the witnesses expertise and also in the observation of the forensic standards set by the courts. Accreditation through an association such as the Council for the Registration of Forensic Practitioners provides a reliable badge of dependability.

(227) However, the position is very different in the Family Justice System. Here most of the required experts are either medically qualified or otherwise qualified in the mental health professions. The majority will be employed under NHS consultant contracts. By contrast to the other justice systems this is a market in which demand exceeds supply. It is thus very sensitive to increasing or newly emerging disincentives. This factor is compounded by a paucity of incentives. The fee for the work will often be paid to the trust employer. The employer may be reluctant to release the consultant from other duties. Keeping up with the demands of the court’s timetable may involve evening or weekend work.

(228) The consequential threat to a sustainable future supply of experts was recognized by the President’s Interdisciplinary Committee in 1998 and in collaboration with the Department of Health and the Lord Chancellors Department day conferences were arranged to debate the problem and seek solutions. Only limited progress was made with the introduction of training and mentoring schemes for specialist registrars. The resolution of the profounder underlying problems foundered on the difficulties inherent in re-negotiating contractual terms for consultants.’

 

Whatever is the answer to Edis’s question as to whether the abolition of immunity from suit and the abolition of legal professional privilege in respect of communications between parties’ and their experts in respect of civil justice it seems to me that when we approach an analysis of these matters we must do so with a clear understanding of context. That context might be civil justice, family justice or criminal justice. As Edis rightly points out communications between expert and party are not privileged in the field of criminal justice.41 Is there a justification for expanding that rule to the field of civil justice, family justice, neither or both? If not, why not? Are those justifications context specific or do they hold true of both civil and family justice? If they only hold true of one, then is it not proper that reforms are made in respect of that field solely? In respect of this I would agree with Edis that, as he puts it:

‘Because a rule may be required for pragmatic and policy reasons in the Family or Criminal Courts, it does not follow that it should extend to civil litigation. On the contrary, it is axiomatic that (a rule) should only extend as far as necessary.’42

 

This is perhaps not the place to go into detailed analysis,however, it seems to me that one thing we are going to haveto be aware of in these post-Woolf times is that what reformsthere are or may be must be examined in the context of our differentjustice systems and by taking account of the differences betweenthem. We are going to have to be much more aware of those differencesin future than we have been in tailoring reform, so that ourjustice systems can properly meet the challenges of the future.





Hot-tubbing

Top

Introduction

Experts

The Woolf Reports

The post-Woolf position

Future reform?

Hot-tubbing
Conclusion

References

 

That being said there is one possible reform that seems to me may well be appropriate for each of the three justice systems to adopt. It is one which I think we should give serious consideration to introducing here and which is known in Australia as the ‘hot tub’—a particularly evocative phrase I’m sure you will agree. While it might conjure up all manner of images, it does not imply that expert conferences should take place in health spas—although if they were to do so an air of relaxation might tend to reduce partisan feelings. All irreverence to one side, what is the ‘hot tub’ in the context of expert evidence? It is a procedure, which was introduced on the suggestion of Sir Gerard Brennan QC, later Chief Justice of the High Court of Australia, when he appeared as Counsel before the Australian Competition, or as it was then the Trade Practices, Tribunal. It was adopted by the Tribunal and later by the Federal Court of Australia.43 It has not, as far as I am aware, travelled further than those two courts. Justice Peter Heerey of the Federal Court of Australia describes it in this way:

‘The procedure involves the parties’ experts giving evidence in the presence of each other after all the lay evidence on both sides has been given. The experts are sworn in and sit in the witness box or [at] a suitably large table which is treated notionally as a witness box. They do not literally sit in a hot tub. Constraints of propriety and court design dictate a less exciting solution. A day or so previously, each expert has filed a brief summary of his or her position in the light of all the evidence so far. In the box the Plaintiff’s expert will give a brief oral exposition, typically for ten minutes or so. Then the Defendant’s expert will ask the Plaintiff’s expert questions, that is to day directly, without the intervention of counsel. Then the process is reversed. In effect a brief colloquium takes place. Finally each expert gives a brief summary. When all this is completed, counsel cross-examine and re-examine in the conventional way.

In a variation of the procedure just described, the brief oral exposition is omitted. The questioning of the experts by each other commences immediately … this is perhaps more efficient, particularly where there has already been a conference and preparation of a joint report, as well as the brief written summary of the position. Also, where more than two experts are concerned, it is probably better to have counsel’s cross-examination and re-examination take place after each expert’s questioning by other experts.’44

 

Justice Heerey sees four distinct benefits arising from this procedure. Again, he puts it this way:

‘First, the experts give evidence at a time when the critical issues have been refined and the area of the real dispute narrowed to the bare minimum. Secondly, the judge sees the opposing experts together and does not have to compare a witness giving evidence now with the half remembered evidence of another expert given perhaps some weeks previously and based on assumptions, which may have been destroyed or substantially qualified in the meantime. Thirdly, the physical removal of the witness from his party’s camp into the proximity of a (usually) respected professional colleague tends to reduce the partisanship. Fourthly, the procedure can save a lot of hearing time.’45

 

So it not only can save time, and no doubt in doing so savesexpense, but it helps to reduce partisanship in the form ofpersonal bias. It is unlikely to reduce structural bias, butgiven that the experts all give evidence together and are presentto debate the issues before the court and the parties, it isperhaps more likely that any structural bias, working assumptionsand theoretically divergent standpoints that inform the experts’views will become evident to a greater degree than they areat present. Greater awareness of such assumptions by the court,whether judge or jury, must surely assist the adjudicatory processand render a just judgment more likely.

It is interesting to note that Gary Edmond, of the University of New South Wales, Faculty of Law, singles the ‘hot tub’ out in his critical appraisal of the Woolf Reforms as embodied in the CPR, relating to expert evidence, as well as similar reforms which have taken place in New South Wales and the Federal Court of Australia. His appraisal of those reforms, which all those with an interest in this field and future reform ought to study, is sceptical about their ability to improve the quality of expert evidence and thus improve the prospects of the court arriving at a correct decision, excludes an appraisal of the ‘hot tub’. He says this:

‘I have deliberately excluded hot-tubbing from [my] discussion. In part, because as a forensic technique hot-tubbing retains the use of multiple (party-based) experts, is integrated into the trial process, exists on the public record and leaves experts open to cross-examination. Notwithstanding some conceptual limitations, as a procedural reform hot-tubbing is probably a more politically salient and pragmatic response to expert disagreement which deserves further study and discussion.’46

 

I would agree with his closing comments: it is a technique whichit seems to me we should pay close attention to and considerintroducing here in suitable cases, primarily those which wouldordinarily require the use of multiple experts. If as a techniqueit can and does reduce personal bias, appropriately lays barestructural bias and improves the court’s ability to do justicewe should follow the Australian Federal Court and introduceit here. It is something we should at the very least considerfurther.





Conclusion

Top

Introduction

Experts

The Woolf Reports

The post-Woolf position

Future reform?

Hot-tubbing

Conclusion
References

 

I will leave you with this short postscript. Experts shouldappreciate that there is no property in a witness, includingan expert witness. I was involved in a case many years ago inwhich the question was whether a signed charterparty was a genuinecharterparty, as they said, or a document which was not a genuinecharterparty, which had come into existence in order to defraudthe Plaintiff’s bank, as we said. They relied upon a coveringletter to the master of the vessel, which they relied upon asshowing that it was a genuine charterparty. If the letter wasgenuine, it went, as Lord Denning put it, far to show that itwas genuine and intended to be acted upon by the master. ThePlaintiffs (i.e. they) sought the opinion of a handwriting expert,who expressed his view as to the genuineness of the letter.The expert was told that his services were no longer required.Some time later the same expert was consulted by our side. Hehad forgotten that he had advised them. He told us that theletter was not genuine. It then emerged that he had alreadyadvised the other side.

Our client was adamant that we should call him as a witness. The other side objected but it was held by the Court of Appeal in Harmony Shipping Co SA v Saudi Europe Line [1979] 1 WLR 1380that there was no property in a witness including an expertwitness and that we could call him. We dithered about whetherwe should ask him in the witness box whether he had always heldthe same opinion. Although the temptation to embarrass the otherside was considerable, we decided not to do so. In the eventit was not necessary to call the witness because it was concededthat the letter was not genuine.

The moral of the story is perhaps that every witness is hisor her own person and not the property of either party to thelitigation. However, I remember the case because it was suchfun.




Footnotes


This paper is a transcript from a lecture given by Sir AnthonyClarke MR on 12 July 2007.

The Master of the Rolls’ Private Office, Room E202, The RoyalCourts of Justice, The Strand, London WC2A 2LL, UK




References

Top

Introduction

Experts

The Woolf Reports

The post-Woolf position

Future reform?

Hot-tubbing

Conclusion

References


  • [2006] EWCA Civ 1390; [2007] QB 462
  • Blackstone W. Commentaries on the Laws of England Volume 3. Chicago, IL: Chicago University Press, 1979
  • Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977
  • Sir L Blom-Cooper,, ed. Experts in the Civil Courts. London: Expert Witness Institute, 2006
  • Lord Woolf. Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO, 1995
  • Cited by Lord Woolf (1995) Chapter 2.9, and see: Zuckerman AAS, Chiarloni S, Gottwald P, eds. Civil Justice in Crisis. Oxford: Oxford University Press, 1999
  • Cited by Jacob LJ. Court-appointed experts v party experts: which is better? CJQ 2004; 23: 400 at 401
  • The Tracy Peerage (1843) 10 Cl. & F 154; 8 English Reports at 700
  • 8 English Reports at 700
  • 8 English Reports at 714
  • 8 English Reports at 710
  • 8 English Reports at 715
  • Lord Woolf. Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO, 1996: Chapter 13.5
  • Lord Woolf (1996), Chapter 13.25
  • Dwyer . The effective management of bias in civil expert evidence. CJQ 2007; 26: 57 at 59
  • Dwyer , ibid. at 70
  • Lord Woolf (1995) Chapter 23.5
  • Dwyer , ibid. at 59
  • Dwyer , ibid. at 59
  • Lord Woolf (1996), Chapter 13.22
  • Lord Woolf (1996), Chapter 13.1–13.3
  • Lord Woolf (1995), Chapter 23.18–23.19
  • Lord Woolf (1996), Chapter 13.5
  • Lord Woolf (1996), Chapter 13, Recommendations
  • CPR 35.3 (2)
  • Edis. Privilege and immunity: problems of expert evidence. CJQ 2007; 26: 40 at 40
  • Davies . Current issues—expert evidence: court appointed experts. CJQ 2004; 23: 367
  • Davies , ibid. at 369
  • Blom-Cooper L, ed. Ibid. at 73
  • Langbein . German Advantage in Civil Procedure. Chicago, IL: University of Chicago, 1985: 823 at 835
  • Davies , ibid. at 372
  • Braithwaite B. Single joint experts. Personal and Medical Injuries Law Letter, Summer 2003
  • Jacob . Court-appointed experts v party experts: which is better? CJQ 2004; 23: 400 at 404
  • Blom-Cooper L, ed. Ibid. at 188
  • (1935) 55 CLR 5623 at 580, cited in Blom-Cooper, ed. Ibid. at 187
  • [2005] 1 AC 610 at (29)
  • [1997] AC 16
  • Edis, ibid. at 54
  • See http://www.dh.gov.uk/assetRoot/04/14/00/09/04140009/pdf
  • Edis, ibid. at 54
  • Edis, ibid. at 49
  • Edis, ibid. at 54
  • Heerey . Recent Australian developments. CJQ 2004; 23: 386 at 390
  • Heerey, ibid. at 390
  • Heerey, ibid. at 391
  • Edmond . After objectivity: expert evidence and procedural reform. Sydney Law Review 2003; 25: 131 at 139

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