ISSUE 53 Expert Witness Journal - Journal - Page 21
The Expert Witness
Market: Changing Times
Authors; Mark Burton, Partner, London. Joe McManus, Partner, London and Fiona
Hamilton-Wood, Corporate Affairs Lawyer, London - www.kennedyslaw.com
Bond Solon and Inspire MediLaw - leading expert witness training companies - hosted their
annual medico-legal conferences in November and December 2023. Partners Mark Burton
and Joe McManus presented at the events in order to share their thoughts on what defendants
look for when selecting and instructing experts and to promote our sector to the next generation
of clinicians for succession and future-proofing.
Looking back over the various talks across the two
events, we have identified some recurring themes that
provide an interesting insight into the challenges facing the expert witness market and the opportunities
for claims professionals to adopt fresh approaches for
better outcomes in the future:
expert started doing that work and built a caseload,
and is very interested in undertaking defendant work
but does not know how or where to easily source it.
We even met some experts who had a claimant
weighting for personal injury cases, but a defendant
weighting for clinical negligence cases. We would definitely encourage a more open mind to expert selection if a particular expert has a strong professional CV
and a reasonable explanation for any adverse split, in
order to widen the pool of providers, find new talent
and alleviate capacity issues.
Instruction of single joint experts to increase
A single joint expert (SJE) is an expert instructed to
prepare a report for the court on behalf of two or
more of the parties to the proceedings.
The expert witness market has been adversely
impacted by factors including costs reforms, retirement of experienced providers, insufficient new
providers and a post-COVID-19 backlog. As a consequence, purchasers are experiencing service issues including long waiting times for appointments, high fees
and some low quality reports.
Ongoing debate: should experts be independently
accredited?
There is no legal definition of what constitutes an
expert witness and no legal requirement for experts to
undergo formal medico-legal training or qualifications
before taking on such work.
The SJE model offers various solutions including the
mutual benefits of saving time, avoiding duplication
of expert costs and sparing the claimant from multiple examinations.
There have been several recent judgments in which
experts have faced judicial criticism. From being inadequately qualified, being considered insufficiently
independent, or failing to comply with their duties
and responsibilities, this begs the question: should
experts be independently accredited?
However, the SJE route is a legally riskier option
because the SJE is conclusive, without the flexibility of
different opinions or the opportunity to discuss the
contents of the report in conference with the expert.
Nevertheless, the parties can mitigate such risks by
mutually selecting the right SJE.
In a survey commissioned by Bond Solon, 79.35% of
the respondents considered it essential that practising
expert witnesses are registered with a recognised professional body and/or regulator and hold a current
membership/registration with that body/regulator.
We predict that SJE instructions will increase, for
reasons of capacity and efficiency.
On the one hand, there is support in Part 35 of the
Civil Procedure Rules and the Civil Justice Council
guidance. Professional regulators such as the GMC or
GDC also oversee the ongoing training of their members. On the other hand, there are arguably two overarching problems that crop up in the case law, namely
that the wrong expert is instructed or the expert has
not fully understood their duties. Accreditation of
every individual giving evidence may reduce, if not
prevent these issues arising.
Criticism of experts with an insufficient balance
of experience
Some recent High Court judgments have strongly
criticised experts whose only experience is acting for
one side of the personal injury market. Practitioners
should now be actively seeking a balanced split of
claimant and defendant instructions if they want to
avoid forensic arguments for their expert opinion
carrying less weight.
The new intermediate track
On 1 October 2023 a new rule introduced the
intermediate track for cases valued between £25,000
and £100,000 in England and Wales. Any expert
Our anecdotal experience from engaging with
practising experts at the conferences was that a 100%
claimant split can be circumstantial, because the
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