The 'Jackson Reforms' in Civil Litigation and thed Impact on the Expert Witness (Part 2)

The so-called 'Jackson reforms' - the changes in the civil procedure process introduced with effect from 1st April and 31st July 2013 - have recently been described as creating 'the most chaotic period in legal costs and funding since the concept of legal costs was codified in the Statute of Westminster 1275'.

The lives and business practices of lawyers, and particularly those dealing with injury claims (personal injury, disease and clinical negligence), have been and will be fundamentally changed by the reforms, and the access of an injured person to professional support in bringing a claim will in some areas be substantially restricted. The impact of the reforms on the medical expert providing reports in civil litigation is both direct and indirect. Some reforms directly refer to the use of medical experts in litigation, while others will affect the approach to the use of medical expert evidence in litigation.

Costs estimates and identification of issues

Part 35 of the Civil Procedure Rules 1998 is concerned with the use of expert evidence. Rule 35.4 has always required the court's permission to rely on expert evidence. However an amendment to Rule 35.4(2) now requires (from 1st  April 2013) that an application for such permission be accompanied by an estimate of the cost of the proposed expert evidence as well as identification of the issues which the expert evidence will address. The order granting permission may specify the issues which the expert evidence should address.

Therefore in future the expert must provide the solicitor with sufficient information for the solicitor to provide the court with an estimate of costs, that is the potential fees of all the stages of the litigation down to trial, and the solicitor may require assistance in identifying the issues which the expert will address. The estimate will, in many cases, therefore be provided prior to formal instructions being received and without knowledge of the potential dispute on expert evidence to which the claim might give rise. Unless permission is granted the cost of the expert will not be recoverable by the successful party at the end of the case, even if a report has already been provided. This is of course only an 'estimate' of costs but, as will be seen below, estimates may well get turned into, or reduced to, straightjackets within which the litigation will thereafter be conducted. As the court is effectively required to have consideration of the potential cost of employing an expert in a claim, it is likely that there will be greater pressure to restrict the number of experts permitted and to increase the use of single joint experts.

Concurrent evidence

The Practice Direction to Part 35 has been amended with effect from 1st April 2013 to add a new paragraph 11 to provide for the giving of concurrent evidence (or 'hot-tubbing' as it is sometimes referred to).

11.1    At any stage in the proceedings the court may direct that some or all of the experts from like disciplines shall give their evidence concurrently. The following procedure shall then apply.

11.2    The court may direct that the parties agree an agenda for the taking of concurrent evidence, based upon the areas of disagreementidentified in the experts' joint statements made pursuant to rule 35.12.

11.3    At the appropriate time the relevant experts will each take the oath or affirm. Unless the court orders otherwise, the experts will then address the items on the agenda in the manner set out in paragraph 11.4.

11.4    In relation to each issue on the agenda, and subject to the judge's discretion to modify the procedure-
(1)       the judge may initiate the discussionby asking the experts, in turn, for their views. Once an expert has expressed a view the judge may ask questions about it. At one or more appropriate stages when questioning a particular expert, the judge may invite the other expert to comment or to ask that expert's own questions of the first expert;
(2)      after the process set out in (1) has been completed for all the experts, the parties' representatives may ask questions of them. While such questioning may be designed to test the correctness of an expert's view, or seek clarification of it, it should not cover ground which has been fully explored already. In general a full cross-examination or re­ examination is neither necessary nor appropriate; and
(3)      after the process set out in (2) has been completed, the judge may summarise the experts' different positions on the issue and ask them to confirm or correct that summary.

It is unlikely that an expert will turn up at court expecting traditional cross-examination, and instead be subjected to concurrent evidence. The direction for an agenda will normally mean that the concurrent evidence needs to be directed in advance of the hearing. However the judge has the power to decide at the trial to conduct the giving of evidence by experts in this manner. Particularly if the joint statement has effectively provided an agenda for such concurrent evidence then there is no reason why the judge should not so direct on the day. Given that the judge hearing the trial may only be identified very shortly before trial, and that some judges will be far more comfortable and pro-active than others in their approach to concurrent evidence, a direction could be made at trial.

The process is intended to enable the judge personally to investigate the area or areas of dispute between the experts and to try to clarify the nature, extent and reasons for the dispute. The process is therefore dependant on the judge having a good understanding of the issues. That will have been obtained, not (as with counsel) by meeting with and having a discussion with one or more of the experts prior to the hearing, but largely (if not entirely) from the written evidence of the experts submitted in their reports and their joint statement. Given the non-specialist judiciary usually assigned to cases, it cannot be assumed that the judge will have any background or experience prior to the case relevant to the issues involved. Therefore the importance of the expert addressing the salient issues clearly in a medical report in language which can be readily understood by a professional with no medical knowledge is again emphasised.

The experts do not have to be of the same or identical disciplines, and that can, as it does in joint discussions , lead to some difficulty for the experts who may have a different approach from one another to the issues in the case. It is also likely that the experts will be of different personalities and therefore there may well be an imbalance in the way they present their evidence in the course of this process.

The court is likely to direct that an agenda for concurrent evidence be prepared, and this will be based on the areas of disagreement in the joint statement. The agenda is concerned only with the areas of disagreement. In an effective joint statement following a joint discussion, the agenda should already be apparent, listing the areas of disagreement and the reasons for such disagreement.Although the 'parties' are ordered to prepare the agenda, the lawyers will most probably provide  the final agenda based on the input of the experts, which should have been largely provided in the joint discussion. The agenda will be rucial in guiding the process of the concurrent evidence and in assisting the judge to investigate the disagreement with the experts.

The Judge is in charge of the process of concurrent evidence and has discretion as to how this is done, but the Practice Direction above suggests a format in paragraph 11.4.

Although the adversarial approach of cross-examination may be foreign to the expert's normal practice in discussing differences of opinion with colleagues, the approach of the judge in discussing the issues with the experts may be equally, although differently, foreign, in particular if the judge's understanding of the issues, in the absence of any medical training, is limited.

The process of the judge summarising the experts' positions at the end of the evidence will be extremely important and is likely subsequently to form an important aspect of the judge's judgment. It will therefore be a very important task for the expert to ensure that the summary, while for example trying to simplify the area of dispute into non­ expert language, is also accurate and does justice to the areas of disagreement and the matters which have to be resolved by the judge.

How extensively 'hot-tubbing ' will be used is difficult to predict, and will depend to some extent on judicial training, the confidence of the judge to deal with the issues in the case in this manner and the nature of the dispute. Judges with more specialist knowledge are likely to find an advantage in this procedure and to see a way in which to shorten trials, while some interventionist-minded judges will believe that ought to be an advantage. 

Giles Eyre is co-author of a manual for medico-legal experts  and those instructing them, 'Writing Medico-Legal Reports in Civil Claims - an essential guide ' (2011) and co-presenter of the e-learning programme 'Medico-Legal Report Writing (Core Skills)' (www.prosols.uk.com). He frequently gives seminars and workshops for medical experts in medico-legal report writing, giving evidence and other medico-legal issues.

Giles is a barrister specialising in personal injury, disease and clinical negligence claims. He is mediator and a member of the CEDR Solve Lead Mediators Panel. He was appointed a Recorder in 2004.

Giles is a contributing editor to 'ClinicalNegligence Claims - A Practical Guide' (2011) and 'AsbestosClaims: Law, Practice and Procedure' (2011), both published by 9 Gough Square.

Author: Giles Eyre, Retired Barrister and Mediator, Co-author of the Manual for Medico-legal Experts

This article was first published in the May 2014 edition of the JTO.