Lord Woolf has been busy, particularly in reviewing the use of expert evidence. The July 1996 'Access to Justice' final report follows the June 1995 interim report and a January 1996 issues paper concentrating on expert evidence. Although initially focused on the use of medical evidence in personal injury cases, Lord Woolf has widened the scope of his review, making specific comment on the use of experts in construction disputes.
Lord Woolf has not pulled his punches, stating that uncontrolled expert evidence and discovery constitute two of the major generators of unnecessary cost in civil litigation. He adds that his proposals on experts have proved to be more controversial than any of his other recommendations.
The Expert's Role
Lord Woolf stated that the role of the expert is to:
• assist in establishing the facts and merits of the claim;
• provide the Court with expert opinion;
• provide factual evidence where it carries significant weight by virtue of the witness being an expert;
• conduct enquiries and report to the Court; and
• sit as assessors to help the Judge understand technical evidence.
What The Cases Say
Two years before the Woolf Report, case, Cresswell J. expressed his concern with the conduct of experts in the "Ikarian Reefer" and identified seven guidelines;
1. Expert evidence presented to the Court should be independent and uninfluenced by the demands of litigation.
2. An expert should never assume the role of advocate. His opinion should be unbiased and objective.
3. An expert witness should state the facts and assumptions upon which his opinion is based and should not omit facts which may detract from the opinion.
4. An expert witness should draw attention to any relevant matters which fall outside his field of expertise.
5. An expert must clarify whether his opinion is provisional, ie if there is insufficient information to finalise a report.
6. An expert who changes his opinion following the exchange of experts reports must make this immediately clear to the other parties.
7. All plans and documents referred to by an expert must be provided to other parties on exchange of reports.
Mr Justice Laddie also expressed concern with the conduct of an expert in the 1995 "Cala Homes" case. He criticised an article written by an expert architect several years before the trial, in which the expert had expressed the view that it was appropriate to use selective "sleight of mind" when presenting information to the Court.
Mr Justice Laddie was understandably concerned that the expert could hold such views, particularly as he was a Fellow of the Academy of Experts and an experienced arbitrator. In his Judgment, Mr Justice Laddie stated that he "went on to re-read [the expert's] report on the understanding that it was drafted as a partisan tract with the objective of selling the Defendant's case to the Court and ignoring virtually everything that could harm that objective".
The Future - The Court's Own Expert?
Lord Woolf considers that the appointment of an independent and impartial expert by the Court would save time and expense. Several criticisms have been directed at this proposal:
• Judges do not have the experience and resources to properly select and instruct an independent expert.
• the Court-appointed expert could usurp the Judge's role.
• appointment of a Court expert will increase costs as the parties will still appoint their own experts to advise on the merits of their claim before litigation begins.
• the Court will lose the opportunity to consider the legitimate shades of opinion within many expert fields.
Court Rules which already allow for Court-appointed experts are rarely used. The Official Referee's Court is currently investigating the potential for wider use of these provisions. Scope remains for improving the current arrangements involving opposing experts, particularly in encouraging experts to narrow disputed issues by identifying and agreeing noncontroversial areas.
The Report also makes the radical suggestion that the Court should have the power to order examinations or tests to be carried out before the commencement of legal proceedings by or at the cost of either the intending plaintiff or defendant.
The Way Forward
In the future it is fundamental that experts, lawyers and the Court all change their attitude towards expert evidence.
Experts and lawyers must abandon their perception of the expert as a partisan 'hired gun' whose duty to advise the Court impartially does not arise until trial, if at all.
Lawyers must adapt, rejecting the practice of directing experts not to reach agreement at meetings ordered by the Court. Lord Woolf is concerned at the prevalence of this practice designed to gain short term tactical advantage jeopardising the interest of justice and the chance of reaching a commercial resolution of the dispute. The Report even recommends that this practice should be treated as unprofessional conduct, punishable by disciplinary proceedings.
The Court must give clear guidelines as to what is expected from experts. To save time and expense, lengthy trials should be timetabled for the experts' convenience. An expert should not be expected to keep lengthy periods free until called to give evidence. Lord Woolf suggests that live video links could avoid the need for experts to attend Court.
To achieve consistency, the British Academy of Experts has prepared a precedent standard form report to simplify the preparation and presentation of expert evidence. This responds to judicial concern expressed at the length of many reports and experts' tendency to mix matters of fact and opinion. The use of appendices containing peripheral information such as a CV, chronology and Lists of Documents will make the report more concise. Experts' opinions should be comparable paragraph by paragraph, and adoption of the standard format should be encouraged.
Recommendations of the Woolf Report
• the use of expert evidence should be strictly controlled by the Court;
• single experts should be used wherever possible;
• the Court should have discretion to appoint its own experts or assessors;
• guidance will be given to experts that their primary duty is to the Court and not their client;
• experts' reports should be addressed to the Court, not their clients.
• opposing experts should cooperate, carrying out joint investigations and producing a single report wherever possible;
• all reports should include a declaration recognising the expert's duties (independence, accuracy, to disclose the existence of contrary expert views);
• experts must not be given or accept instructions not to reach agreement with their counterpart, and if agreement is not reached, they should specify their reasons for failure to do so;
• experts' meetings should be private, generally excluding legal advisers;
• all written instructions (and a note of any verbal instructions) are to be disclosed as part of any expert report;
• the court to be given wide powers (including before the start of legal proceedings) to order examination or tests to be carried out and a report submitted to the court;
• training courses (non-compulsory), and codes of practice should be drawn up jointly by the appropriate professional bodies representing experts who testify in Court.
Summary
Changing judicial attitudes will compel litigants and their experts to adopt a different approach to the use of expert evidence. When implemented the Woolf reforms are intended to reduce cost and delay whilst returning the expert's role to that of independent, impartial adviser to the Court.
Whilst projected costs and time savings remain debateable, it is clear that clients, experts, Courts and lawyers will be expected to meet higher standards in the use and presentation of expert evidence.
Alex Hartmann BA LLB is an associate in the London office of Dibb Lupton Broomhead, specialising in construction law.