Solicitors requesting dates be left off documents, fewer instructions, downward pressure on fees, and tighter deadlines for reports are among the issues bothering expert witnesses from the first year of the Jackson reforms, a survey of their views has revealed.
Expert witness training specialists Bond Solon asked its list of experts for their experiences of the Jackson reforms one year on, whether courts had been tougher under the new regime, and whether they had been invited to ‘hot tub’ (when experts give concurrent evidence).
The most serious accusation made against solicitors came from Jan Harrison, managing director of occupational therapy experts Harrison Associates, who charged that solicitors had been “expecting us to omit or be vague regarding the dates of reports and documents we have relied on”.
She explained: “This is because other experts’ reports are being finalised very close to the court-imposed deadlines.”
Ms Harrison pointed to a letter to members from the College of Occupational Therapists that said that at a recent meeting “it was noted that solicitors are increasingly sending [occupational therapy] experts source material including draft reports and witness statements but asking them either not to list or refer to this material in their report, or to remove all dates of reports and witness statements”.
The letter, produced by the college’s medico-legal forum committee, acknowledged that “solicitors themselves are under increasing time pressures due to increasingly tight case management by the courts, following Jackson and the recent Mitchell judgment by the Court of Appeal”.
But it said occupational therapists should be aware that such requests are “likely to be incompatible” with part 35 of the CPR, as well as most forms of declaration and the Protocol for the Instruction of Experts in Civil Litigation Claims, which require the expert to give details of any literature or other material which they have relied on in making the report. Only earlier versions of the report, where it has been updated because of new evidence, are privileged and can be removed from the documents list.
By removing dates from documents, “there is a huge potential for confusion further down the line, with readers being unclear which documents have been relied upon, eg at experts’ meetings and in court”, it said. The letter also pointed out that “once you have read a document, the content of that document is within your background of knowledge and thus consciously or subconsciously may influence your thinking”.
The letter added: “There is a clear danger that experts who agree to such requests could be liable to censure by the court and are putting at risk their own professional independence and integrity.”
More broadly, the range of views received by Bond Solon suggested the effects of Jackson on expert witnesses had not had time to bed in. Of some 50 responses, about a third reported they had noticed no effects at all.
Just one expert said they had experienced hot tubbing and was very positive about it. But they “felt sorry for the counsel” because the judge became so involved as to exclude them. The only downside to the experience was that the witness box was too crowded with two people and their bundles.
Others expert witnesses reported that their instructions had slowed down or dried up, particularly in family related work, forensic accountancy, and personal injury.
Several said the instructing solicitor had become more anxious about meeting deadlines. Solicitors were emphasising that they had no leeway with court timetables. One medical expert said they wrote themselves to the court asking for extra time to write a report and was granted it. The instructing solicitors had been reluctant to ask.
One expert accused solicitors of “bullying” them by saying that if the case collapsed due to missed deadlines, it would be the expert’s fault.
Other effects of Jackson observed by the expert witnesses included solicitors “bartering for lower fees” and demanding more detailed costs estimates. An expert said that in one case their fees had been cut by 40% without explanation.
Mark Solon, managing director of Bond Solon, said: “Many experts are unhappy about the Jackson landscape. The complaint is that courts expect quicker monkeys for less peanuts. Experts have a day job and for many years have generated a substantial secondary source of income from report writing and appearing in court.
“If the expert work is not properly remunerated or becomes too burdensome, the experts can always turn it down. This contrasts with the oversupplied lawyers market where only the day job exists.”