Recent cases, combined with the recommendations of the Gill and Taylor reports, are set to add complications to the role of the expert witness, and those instructing them

The role and remit of the expert witness in the Scottish courts is changing, and at quite a pace. A combination of a number of recent decisions critical of their evidence, radical proposals concerning expert witnesses in Lord Gill’s Civil Justice Review and Sheriff Principal Taylor’s Review of Expenses and Funding of Civil Litigation in Scotland, taken with the loss of immunity arising out of Jones v Kaney [2011] UKSC 13, and a myriad changes introduced in England, have all served to make even the most experienced and decorated expert witness think twice before taking on any new instruction.

There are, of course, no formal rules in Scotland about who may be called as an expert. The decision, ultimately, remains with the court. The expert’s remit seems quite clear. It is to assist the court to interpret matters of a technical or scientific nature which are deemed to be outwith the court’s knowledge or experience. Experts have always been clear their overriding duty is to the court. How far that duty extends has, however, been a matter of contention.

Any reservations?

Lord Carloway, in Whitehead v Douglas [2006] CSOH 178, provides an excellent summary of the role of expert witnesses and the function of their reports. In doing so, he is firm in his view that the extent of the expert’s duty does not stretch to an obligation to advise the court of any reservations he may have about his opinion: “What he is permitted and not permitted to say will depend not just on what he is asked but on what he is not asked. He is not in a position to volunteer information.”

This view, however, contrasts with that of Lord Glennie in BSA International v Irvine [2009] CSOH 77. Lord Glennie believes that the expert witness “must bring to the attention of the court all matters which could affect his opinion in one way or the other, and he is not entitled to keep some reservation about his opinion to himself simply because he is not asked the precise question which would bring it out into the open”.

It is fair to say that most experts, solicitors and counsel would not consider the duty to extend quite this far. While all appreciate the duty is first and foremost to the court, any expert who destroys their client’s case with one ill-advised unsolicited comment may find they do not have too much in the way of repeat business!

This issue has, of course, been brought into sharp focus by the English Supreme Court case of Jones v Kaney, where the court held that expert witnesses no longer have the immunity enjoyed by other witnesses, from which judges, juries and witnesses also benefit. It is, of course, a case which is not binding in Scotland but it seems only a matter of time before experts in Scotland lose their immunity. Indeed, Lord Hope, who provided the dissenting judgment in Jones, noted that, while English rules do not apply in Scotland, “it seems that the principles which they express are of universal application”. Experts would be well advised to watch developments in this arena very carefully.

Necessary expertise

In addition to such close scrutiny on the role and duties of an expert, their performance in court, and indeed entitlement to call themselves an expert, has recently been called into question. In Coyle v Lanarkshire Health Board [2013] CSOH 167, Lord Tyre was most critical of the midwifery expert’s performance in the witness box. Indeed, he questioned her entitlement to call herself an expert witness.

In his judgment, Lord Tyre made his position quite clear: “As she gave evidence, I formed the clear impression that she did not have the expertise to qualify her to give expert evidence on the standard of care reasonably to be expected of a midwife responsible for a high-risk labour such as that of the pursuer. Her answers during examination in chief lacked confidence; she used expressions such as ‘probably’ and ‘I think’ in response to questions which should, in my view, have received more straightforward answers.”

Such criticisms could, of course, have more far-reaching implications in this post-Jones era for any expert caught in such crossfire, and perhaps even the instructing solicitor who selected such an expert, particularly if the “unqualified” expert’s evidence proves to be pivotal in the outcome of the case.

In the pipeline

If such judicial scrutiny was not enough, Lord Gill and Sheriff Principal Taylor, in their respective reports, are clearly keen to see changes in the role of the expert in Scotland. Lord Gill makes a number of radical suggestions, including the introduction of a code of conduct for all experts, and guidance on the form of and information to be contained in expert reports. He further considers that any party that relies on the evidence of an expert should disclose all written and oral instructions, and the basis on which any evidence is given. In addition, experts should be expected to confer with their counterpart to agree non-controversial evidence and, indeed, consider the points in issue to explore what common ground there may be.

In England, we are seeing new concepts of joint experts and “hot tubbing”, where separate experts are employed by each side but give their evidence to the court together. While Lord Gill did not quite go this far, one imagines that if such concepts prove to be successful, it will only be a matter of time before they are introduced into Scottish procedure.

Sheriff Principal Taylor also focuses his attention on the expert. He considers that, for cases proceeding under active judicial management, the certification of the expert should be obtained prior to instruction or, if instruction is prior to the commencement of the action, as soon as reasonably practicable thereafter. While he stops short of setting a tariff for expert fees, he recommends that the court ought to be able to consider, first, whether or not it was reasonable to instruct the expert in the first place, and to have regard to proportionality of the expert’s charges when set against the value of the case.

Given such changes and proposals,there is clearly a lot for the expert to consider before accepting any instructions.

Indeed, there is also plenty for the solicitor and counsel to consider when selecting one. The difficulty for lawyers is that a judge or sheriff’s opinion of any expert is, by its very nature, subjective. One person’s view may be entirely different from another’s. Whichever way you look at it, life seems to be getting a whole lot tougher for the expert witness and those instructing them.

Early information – at a cost?

The Taylor review proposals for expert witnesses’ fees to be costed in advance could lead to experts overestimating fees in order to cover for eventualities, experts have warned.

Budgeting in advance “obviously has its problems, as each case is different and my involvement as expert witness often varies considerably”, comments David Bell, director at HW Forensic Accountants. “If we know what is needed, for when, and what information is available, then providing a detailed budget through to case completion should not be overly problematic. Whether this leads to experts erring on the side of caution and factoring in a buffer for additional work remains to be seen, however.”

Daphne Wassermann, technical director at expert engineers Cadogans, sees this as “the main issue” with Taylor’s recommendations. “For simple cases, such as slips and trips causing personal injury, it is relatively easy to predict costs”, she states. “Even with relatively low value claims, the matter may not be straightforward and, once looked at in detail, it may become clear that additional investigations are needed. If we were required to state our costs at the outset we would be likely to overestimate the fees in order to cover ourselves for all eventualities.”

Bell, however, recognises that such information already requiresto be provided in cases instructed south of the border. He adds that there is “merit” in more single joint expert appointments in Scotland, with both sides having sight of what is being undertaken and agreeing on the costs.

A side benefit of budgeting may be earlier instruction of experts. Bell is regularly brought into a case in the weeks leading up to a proof: “If the Taylor review forces solicitors to instruct the expert early on, this is definitely welcomed”.

Wassermann agrees with Taylor’s point (chapter 8, para 37), that it may be difficult to assess the strength of a case without an expert report. “In some instances it may be hard to know whether to bring a case to court at all until the expert has been appointed and carried out an investigation,” she observes.

Having a more robust case management system “can only be a good thing”, Bell concludes. “What will hopefully come out of this is a better dialogue with my instructing solicitor at the outset… Knowing in advance what is needed and for when allows for better planning, and hopefully a better report being produced.”

The Author
David Armstrong, Head of Dispute Resolution, Brodies LLP
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