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The Expert: Contemporary Problems

Forensics

Problems in expert evidence going beyond the rules. By Alec Samuels

 

Despite the now fairly comprehensive rules, codes, practice directions, practice notes1, guidances and judicial decisions touching upon the role and duties of the expert, there remain a number of problems seemingly not covered which need to be resolved, principally by the application of professional standards.

When to instruct the expert

Should the expert be instructed early on or later on in the case? The early expert report may identify the issues, narrow the areas of disagreement, and in civil cases promote a quick settlement and save costs; but in the light of witness statements and other developments the report may need to be revised and changed, and accordingly be open to challenge for inconsistency, and may then lengthen the process and increase the costs. The later expert report may be well timed and promote a settlement; or it may reveal how the lengthy negotiations could have been avoided had the report been available much earlier.

Simultaneous or sequential disclosure?

Simultaneous exchange of expert reports is the norm. However sequential exchange can sometimes enable the issues in the case to be more readily identified logically step by step and unnecessary duplication and repetition avoided. The risk is that the expert may concentrate upon answering the received report instead of giving priority to expounding his own professional scientifically supported opinion.

Meeting of experts

In a case of any consequence the experts should normally meet together, face to face, in the absence of the lawyers, in order to narrow the issues, obtain a feeling for the nature of opposing views and their reasons, the strengths and weaknesses of opposing experts, and of themselves, and then to produce a joint report indicating the outstanding areas of agreement and disagreement. The good expert is careful and thorough and confident in his opinion, sufficiently intelligent and flexible to recognise when he should modify or amend his opinion having seen and heard what the other experts say. Contact by Skype or telephone or email may be appropriate and acceptable, but is normally likely to be less satisfactory in terms of depth of mutual understanding.

The single joint expert

The single joint expert SJE is comparatively rare, as might be expected in an adversarial system. However, in relatively small value cases, small claims and fast
track, where expert evidence is only required on valuation and quantum matters, the single joint expert may sensibly be agreed by the parties. In times of shortage of public funding the advantages of the single joint expert are becoming more apparent. In children’s cases in the Family Division permission is required for expert evidence and the evidence must be necessary and the evidence of the single joint expert may be more readily seen by disputing parents to be impartial and acceptable.

Incidentally, there must be no unilateral or secret communication with the single joint expert by one of the parties, this will taint the process.

The rules do not provide for the court to give permission to a single joint expert to convey to the court the opinions of other experts whom he has onsulted on matters which are not within his expertise4.

The assessor

The court may appoint an assessor to assist the court in dealing with a matter in which the assessor has skill and experience. The assessor may be directed to prepare a report, which will be supplied to the parties, and to attend the trial5. The concept of an assessor has certain attractions. The expert sitting with the judge can advise upon the expert issues, and talk informally with the judge in his room. However, there are objections. The assessor, who is not a judge, albeit a man of integrity, may psychologically be drawn to one side or the other, convey or impart his opinion to the judge, and the judge may be tempted to accept the opinion: the risk of judgment by expert, not judgment by judge. The extent of any influence upon the judge is unknown. Furthermore the concept of the fair trial requires that all the evidence and all the submissions should take place in public, not partly in the privacy of the judge’s room.

The court appointed expert

The court has the inherent power to instruct an expert but a court appointed expert is a rare phenomenon. The role of the judge is to judge, not to select or instruct an expert witness. However, the parties might welcome the judge selecting an expert witness, especially a named and agreed expert witness.

The court appointed expert should be given access to all the relevant papers in the case and should prepare his report and advise accordingly, free from any “taint of involvement” with either party. His report will be disclosed to the parties and he may be cross-examined in the usual way. However, the advocates may feel a little inhibited in too severely challenging the court appointed expert. The greater the judicial control of the proceedings the more likely we shall see concurrent and court appointed experts.

Permission of the court

Expert evidence requires the permission of the court and the parties or their solicitors must provide a list of issues for the expert to address, the type of expert and the name of the expert, and a costs estimate. The threshold or the bar to be overcome in order to obtain permission for a late expert report or new fresh
evidence expert report is high. The factors the judge will take into account are the nature of the issues, the number of the issues, the reasons for the application,
the amount at stake, the effect upon the trial, the delay, any special features, and justice overall6.

The judges respect the expert who is willing to modify his opinion7. However, there are limits. At the trial the expert said that there was sexual abuse of a child; the accused was convicted; after the trial the expert said that there might have been sexual abuse; such fresh evidence looks promising for an appeal.

The claimant’s expert submitted a report favouring the case for the claimant, namely whiplash suffered in the accident. Having met the defendant’s expert the claimant’s expert changed her mind and agreed that the injury was not related to the accident. The claimant applied for permission to instruct a new expert. The application was refused, as not being reasonably required to resolve the proceedings. Possible cases where a new report might be permitted would be if the original expert lacked the necessary expertise or behaved improperly, e.g. accepted a bribe.

If an expert withdraws from the case the court and the other party should be informed as soon as possible and steps taken to obtain permission for a replacement expert10.

There is no legal objection to a party going from expert to expert until he finds a favourable expert, apart from the cost and the delay caused by not finding the right expert in the first place. But once permission for the chosen expert to give evidence has been obtained from the court, permission for a substitute expert will need a compelling case. Expert shopping after the permission stage resonates with the search for a partial and favourable opinion rather than the search for an independent professional opinion. In civil cases if permission is obtained for the new expert the judge will usually require the report of the first expert to be disclosed. In criminal cases the judge will be particularly concerned to protect the fair trial and not to confuse the jury.

If a written statement refers to a privileged expert report then privilege is deemed to have been waived and the whole of the expert report must be disclosed.

It may be that the practice and the law should be changed so that a condition of receiving permission to adduce the report of an expert would be that all previously obtained expert reports on the matter should be appended and disclosed. Traditionally expert reports are covered by privilege, unless and until proffered in the litigation, the adversarial system. Today we are moving towards mutual disclosure, in the interests of truth. By definition the
expert should have no involvement in the dispute between the parties. The advocate must disclose the decided legal cases against him. It is suggested that all
expert opinions should be peer-reviewed, and stored on an accessible national database, disclosing the name of the expert but redacting the names of the parties and witnesses and any privileged or confidential information. In this way the quality of the work of the expert would be open to public inspection.

Psychological and psychiatric evidence

The judges remain reluctant if not hostile to accepting psychological and psychiatric expert evidence as relevant and admissible. Matters within ordinary human knowledge and personal experience are for the judge or the jury. The accused, facing a charge of fraud, suffered a learning disability; psychological evidence relating to suggestibility, not going to state of mind and to the distinction between right and wrong, was not admitted13. Nor was psychological evidence of post traumatic stress disorder admitted in proceedings arising out of a road accident14. Expert evidence going to suggestibility or to unreliability would not normally be admissible. But scientific evidence going beyond ordinary experience, such as diagnosis of mental illness or serious personality problems would be admissible.

Less legal aid

The greatly reduced availability of legal aid and the limited fees allowed to experts has meant that the litigant in many cases can expect to have only a “junior” expert or even none at all. The Legal Aid Agency Guidance on the Remuneration of Expert Witnesses indicates the sort of situations in which prior authority may be granted and the maximum rates, and refers to particular types of case such as clinical negligence, family and children disputes, risk assessment experts, psychological and psychiatric experts, and drug and alcohol testing and DNA testing. Exceptional cases may arise where the material is complex, and a senior expert is required, or very specialised and unusual expertise is required and there are few qualified experts available. In civil matters the litigant may well be a litigant in person LIP. The consequence may be a disadvantage for the litigant, an “inequality of arms”, an “unfair trial”; though the evidence of the “junior” expert is not necessarily less cogent than that of the “senior” expert. Reliance upon human rights and fair trial article 6 may be possible and arguable, but procedural matters are usually treated by the ECHR as domesticmatters. The judge cannot order legal aid. He may adjourn the case for the LAA to reconsider; judicial review could challenge the LAA; the judge may direct the use of court funds18.

Pro bono

The legal profession has a long, strong and honourable tradition of offering its services pro bono to deserving indigent litigants. “I hold every man a debtor to his profession” Sir Francis Bacon19. Therefore it is submitted that it would be desirable for each and every professional group of experts to offer to find and if need be to pay an appropriate expert from their ranks on request in deserving circumstances. The NHS could be required to release a consultant for up to say 3 days a year to engage in genuine pro bono expert report work. If a lawyer acts pro bono for a client the court may order payment to a charity providing legal advice or assistance of a sum equivalent to what would have been ordered in respect of a normal paid advocate20.

Pre-trial scrutiny and exclusion of expert

The Law Commission21 recommended that pre-trial at the case management hearing CMH the judge should have the statutory power to scrutinise and to assess the expert witnesses in order to ensure that they are competent and reliable, and otherwise to exclude them. The expert who retired from active practice a few years ago may be impressive in terms of qualifications and experience but may quickly lose touch with the benefit of daily direct hands-on work and the continuing developments in practice. The limits of expertise and experience should always be stated in the report. An incompetent and unreliable expert witness can waste time at the trial and contribute little or nothing. The difficulty with the proposal is that at the CMH stage the judge will not have in his mind the whole rounded picture of the nature of the issues and may not wish to engage in a sort of pre-trial trial. Furthermore, to exclude an expert witness from the trial without giving the party the opportunity to present his expert and his evidence in the witness box may seem to be potentially unfair to that party. Expert evidence is admissible if relevant, needed as being outside the knowledge and experience of the court, and the witness is competent. If he wishes the judge can rule out expert evidence at a preliminary stage, but is most unlikely to do so if the evidence is admissible but needs to be tested at trial.

If at the trial a party calls an expert witness who acts improperly, unreasonably or negligently, e.g. is flagrantly and recklessly non-compliant with the rules,
incompetent and useless and worse than useless, exceeds his duty to the court, and causes unjustifiable expense to the other parties or to the court, that party may be made subject to a wasted costs order23. The solicitors should exercise a degree of control over their witness, and not proffer him as a witness if he is
manifestly not up to standard.

Helpful judicial guidance has been given on pre-trial management where the experts disagree, e.g. in a shaken baby syndrome case. The experts should be in
clinical practice, appropriately qualified, experienced and accredited. The reports should lie within their expertise, giving the literature, the range of opinion, rational analysis, with no advocacy. Any previous criticism of an expert should be disclosed. All the experts should meet, well in advance of the trial, follow a check list if desired, narrow the issues and produce a careful minute or report24.

Liability

The imposition of professional liability upon the expert does not appear to have deterred the experts from accepting instructions, though they must carry professional indemnity insurance and be aware of the potential consequences of incompetence.

Redaction or withholding

The expert sometimes complains that there are redactions in a witness statement or documents are withheld from him or he is asked or instructed not to deal with or mention certain matters. Legal privilege, the right to withhold information passing between the client and his legal adviser, may conflict with the duty of transparency and disclosure to the court, in the pursuance of justice. If the expert feels that “his hands are being tied behind his back” so that he cannot properly fulfil his duty to the court then he should withdraw. He must be independent. He does not exclusively serve the client. In any event in his report he should make it absolutely clear exactly what material in substance has been supplied to him and the basis for his report26. The report must not be inaccurate or incomplete. The solicitors should not ask the expert to amend his report, except to correct errors of fact or to clarify meaning and expression. Any pressure upon the expert to change his mind would be wrong and anyway counterproductive. The expert in difficulty may always seek guidance from the judge. However, the expert in dispute with instructing solicitors is in practice much more likely to withdraw from the case. If the solicitors do not like the report they need not seek permission from the court to adduce his evidence, they may simply instruct a different expert.

The expert and the new costs regime

Under the new costs regime, following the proportionate costs principle27, at an early stage in the process the solicitors for each party must set a budget to be approved by the judge in a costs management order, that budget to be “frozen” and not subsequently exceeded, whatever happens in the case. Thus solicitors and expert must work out what work is involved, a realistic deadline for delivery, and an accurate estimate of fees. Solicitors and expert must keep each other mutually informed as the case progresses. If any difficulty should arise the expert can always seek assistance or directions from the court, but that should not be necessary. 

Solicitors have traditionally been paid by reference to an hourly rate. Increasingly clients are finding this system unacceptable, as it has the appearance of being open-ended and subject to possible abuse, and are demanding a fixed fee system. Similar pressure from clients in respect of experts is beginning to become apparent, especially in view of the proportionate costs and early budget principle. 

Compliance with the rules 

The courts have taken a fairly strict line for compliance with the procedural rules and are more reluctant to grant relief for non-compliance then before. Trivial matters can be overlooked, but not serious or significant non-compliance, when good reasons for granting relief will be required. The judges want efficient and just procedure. They will not tolerate unnecessary delays and postponements and disruptions. Delay by the solicitors in instructing the expert might not be seen as good and sufficient cause for extending time29. The lawyers are expected to co-operate, not take opportunistic points30. Therefore it is imperative that the solicitors keep the expert fully informed of the requirements and progress of the case, and the date by which the expert report must be delivered. If failure to comply with the rules by the solicitors was in effect caused by failure by the expert, the solicitors will look to the expert for redress. Failure by the expert could give rise to an action for tort and breach of contract against the expert.

Concurrent evidence, “hot-tubbing”

Concurrent evidence, witnesses from both sides in the witness box together, “hot-tubbing”, is still a relatively uncommon practice (never in criminal cases) but is
gradually gaining popularity. The experts in like disciplines take their place together in the witness box, and the parties are invited to agree an agenda. The judge then invites one expert to give his evidence, essentially summarising the report. The judge asks questions. Then the other expert is invited to ask questions. Then the process is repeated with the second expert. Then the parties are invited to question both witnesses. Then the judge summarises the differences between the experts, and invites them to confirm or correct the summary31. Experience shows that the advocates lose a degree of control and the judge plays a more significant role, acting more as an inquisitor than a passive listener. The experts need to be well prepared. They (who should be informed beforehand that they will or might be subject to hot tubbing) tend to reveal their character and personality and to struggle against any appearance of bias and to seek so far as possible to agree with each other. The interplay between the experts can be revealing. They have to choose their words particularly carefully. The expert who cannot manage confrontation and challenge, cannot keep calm and rational, should not be instructed as an expert witness for trial. The danger in hot tubbing is that it may become a sort of jousting match, a theatrical performance, each trying to score points off the other in a competitive sparring game. The more flamboyant, smooth and good looking expert may constitute a risk that he may be seen to have an advantage over his more mundane opponent, whereas the better scientific evidence should be the criterion.

Objective and Unbiased

Expert evidence should be the independent product of the expert uninfluenced by the pressures of a possible court appearance. Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate. The opinion must be verified by a statement of truth32. The good expert is aware of the risk of bias. Bias may be not at all obvious, a subtle unintended subliminal subconscious bias. A good relationship with the party, or the instructing solicitors, or the police, may lead to a psychological or expectation bias. Contact with the first witness may lead to a cognitive bias. Confidence, particularly over-confidence, or vanity, may lead to inflexibility and arrogance, characteristics much disliked in our cynical society, reluctant to accept evidence at face value.

Education and training

All are agreed that education and training in the understanding of expert evidence are essential for all those engaging in the forensic process. The issue in the case is a technical, scientific or medical issue. There are witness statements and expert reports and pleadings and skeleton arguments from both sides. Would it not be helpful that in good time before the trial the judge were to spend a working day with an independent leading expert, a senior member of the appropriate professional organisation, going over the fundamental concepts in that field of expertise, the terminology, the structure of the discipline, the current problems, the setting for the issue in the case? At the trial the judge could then more readily and more effectively get to grips with the issue in the case. Resources will always be a challenge. But a pilot scheme could test practicality and efficacy. Naturally the judge must always bear in mind that although he is an expert in dealing with experts he must never see himself as an expert expert. The role of the judge is to understand and evaluate the evidence of the expert.

The appropriate specialist professional body could be invited to put forward an appropriate specialist expert to act as a pre-trial technical adviser. The judge would read through the bundle. The judge could ask his questions, they could both discuss the speciality and the general problems. The expert would be strictly debarred from giving any opinions on any issue in the case. At the trial proceedings would take place in the normal way, the expert having played his part and withdrawn from the case. The judge would be better informed; the parties would rely upon their own expert evidence; the proceedings would proceed more speedily and efficaciously.

Presentation

Prolixity is a big problem in life, and in the law, and in expert reports. The good report sets out accurately the instructions, the qualifications, the facts, the evidence, the investigations and tests, the analysis, the reasoning and the conclusion. The model style is plain concise English.

Contingency fee for expert

The expert may not seek a contingency fee, i.e. 25 or 50 per cent increase in the fee if the instructing party wins the case. He owes a duty to the court, must be independent and impartial, committed to the scientific or medical truth, and not in any way influenced by the interests of the instructing client and solicitor or the possible outcome of the case. The fee of the expert should not depend upon the outcome of the case.

Top up

The expert whose fees are being paid by the Legal Aid Agency seeks a “top up” from the solicitors or the litigant. Is this legal? Is this professional? The Legal Aid Guidance on expert witnesses in legal aid cases34 says nothing about top up. Public contracts often prohibit top up. The practice appears to be unprofessional, and contrary to the spirit of the rules, because in seeking more money from the litigant the expert would appear to be subject to incentive to produce a report at risk of bias.

The scientific nature of the evidence

The jury, layman, may see medical or scientific evidence as powerful and compelling evidence, and therefore particularly high standards must be required. Specious and spurious statistical evidence in a cot death case led to the miscarriage of justice conviction in the case of Sally Clark35. The triad or triage of symptoms for the shaken baby syndrome SBS are open to misinterpretation, see the conviction of Louise Woodward in USA in 199736. Subjective expert summaries, saying that the evidence against the suspect or accused is “moderate” or “strong” or whatever seem less than satisfactory. An evaluative opinion based on reliable scientific evidence but not supported by robust statistical evidence should be declared inadmissible, or rejected at trial, or the jury advised to treat with particular caution. However, less than robust evidence has been admitted in recent times, in DNA, fingerprints and footwear marks, causing some concern amongst the judiciary and the legal profession37. Wherever possible a statistical figure should be given supported by the raw data, and the material worked upon, the tests carried out, the literature consulted, the analysis, the logical and consistent reasoning, and the conclusion38. The concept of probability and cause and effect require a fundamental understanding by the expert.

The quality of the expert

Compliance with the rules may be taken as axiomatic. Quality goes far beyond. Factors such as character and personality and professional integrity, coupled with medical or scientific skill, and the power of presentation and persuasion, identify the ideal to strive for. The capacity to develop an appropriate and good relationship with the instructing solicitor and counsel, the party, the opposing expert, and the judge or jury, greatly contribute to the litigation process and the attainment of justice. The ideal expert witness is trained and qualified and accredited. He has requisite experience and is active in his speciality. He has a reputation for integrity and skill and objectivity, and presents well in the witness box. He is uninfluenced by the pressures of litigation.

The solicitor’s advice to the expert might be: Be frank. Comply with deadlines. Be organised. Say if there is a problem. Be clear. Be accurate. Avoid technical jargon. Adhere to the rules. Do not offend the judge. Be user-friendly. Give value for money. Estimate your fees correctly.

The expert’s advice to the solicitor might be: Give the full facts. Define the general issues. Arrange an early meeting of the experts. Provide a precise and succinct agenda. Sort the bundle. Be competent. Give guidance39. How not to perform: In an obstetrics clinical negligence case the judge gave his views on the
expert witnesses. Those for one side were exemplary, impressive, impartial, measured, helpful, candid, straightforward and of palpable integrity. Those for the other side were forgetful of the duty to the court, stepped outside the area of their expertise, were overly keen to support their side, unproven, illogical, tortuous, equivocal, disingenuous, indeed breathtaking, went in for creative advocacy, and were most unsatisfactory.

Finding the “right” expert

Finding the “right” expert is often a problem. Experience and knowledge are invaluable, especially local knowledge of the leading medical practitioners and experts in the subregional and regional centres of excellence hospitals and of the leading scientists in the local universities. There is no substitute for the
recommendation from a reliable source. There are a number of appropriate institutions willing to supply names such as the Royal Colleges, the British Academy of Forensic Sciences, the Expert Witness Institute, The Law Society, the Universities, and others. A careful scrutiny of the law reports can reveal some telling judicial remarks on the performance of expert witnesses in the witness box.

Giving instructions

The expert is largely dependent upon the instructions given by the police or the CPS or solicitors or whoever; although it is always open to him to ask for clarification or further information. However, the fuller, the more relevant, the more factual, the more accurate the material supplied the easier the task for the expert and the more likely that he will be able to produce a good report. Although the expert should be given a “free hand”, nonetheless specific questions directed to the issues perceived as relevant by the lawyers will make the report more likely to be relevant and persuasive.

A third party is to blame

The expert is instructed by the defendant. He makes a very careful and indeed admirable expert report giving a well supported opinion that the defendant acted wholly properly and did not in any way depart from proper careful or professional practice. The instructing solicitors are pleased, as on the basis of the report they will be able either to defeat the claim or to settle for a nominal or very small sum, although the injuries suffered by the claimant were very severe. However, the expert forms a strong view on the evidence he has seen that in fact a third party, not a party to the proceedings, was grossly negligent and was indeed fully responsible for the injuries suffered. Instructing solicitors say that he must not say anything about this in his report, it is irrelevant to the case for the defendant, it would be unhelpful, and indeed could provoke a damaging counter-attack. It is for the solicitors for the claimant to sue the third party if they wish. The expert says that he is a witness to the court, he has a duty to the “truth”, and he should not stand by and not disclose matters which might benefit the rights of the claimant. Should the expert say nothing about the third party? Or withdraw from the case? Or put his views regarding the third party in his report? Or seek directions from the judge? Such a situation is unlikely often to arise.

Conclusions

The regulations and rules and directions and guidance for expert evidence are now fairly detailed and have improved and made more consistent the practice. However, there are still many subtle problems remaining to be resolved, largely ethical and professional.

• Is legal privilege in respect of an expert report justified in a truth-seeking process?
• Should discarded reports be required to be disclosed?
• Is it proper to withhold information from the expert?
• Is the report made in the best format41?
• Could the evidence of the expert be better presented?
• Is there sufficient protection against partiality and bias?
• Would a less contentious or adversarial process be possible for the experts?
• Is the single joint expert the way forward?
• Would greater judicial control of the process, including directing and appointing expert witnesses, reduce unhelpful contention?
• Could the greater use of assessors give more support to the judge?
• Do the lawyers adequately instruct the experts?
• Is legal liability a deterrent?
• Could we do more to overcome the severe shortage of legal aid?
• Is the level of fees a disincentive?
• Are “top up” fees ethical?
• Would a data base of expert reports better reveal the quality of the experts?
• Is the current system for presenting expert evidence to the judge and the jury the best we can devise?
• Is the current forensic process too formal, too clumsy, too slow, too expensive?
• Is it right to exclude so much psychological and psychiatric evidence?
• Would a more searching investigation into the quality of the expert at the pre-trial stage be helpful
• Have the professionals developed the standards of professionalism necessary for the attainment of justice?
© Alec Samuels, 2015

References

1, Criminal Procedure Rules part 35. Civil Procedure Rules part 35. Civil Procedure rules part 35. Family Procedure Rules part 25. Practice Direction (Criminal Proceedings: Various Changes) [2014] EWCA Crim 1569, [2014] 1 WLR 3001. The Crown Prosecution Service CPS Guidance on Expert Evidence 2014. Protocol for the Instruction of Experts. Expert witnesses in legal aid cases, Ministry of Justice 1 July 2014 and 5 September 2014. Forensic Science Regulator documents on validation and cognitive bias effects 18 September 2014.

2, JG v Lord Chancellor [2014] EWCA Civ 656. Re H-L (A Child) [2013] EWCA Civ 5, [2013] 1 FLR 1250. There may be problems in apportioning the costs. Speak v Myerson [2012] EWCA Civ 1723.

3, Edwards v Bruce and Hyslop (Brucat) Ltd [2009] EWHC 2970, QB, para 13. Peet v Mid Kent Health Care Trust [2001] EWCA Civ 1703, [2002] 3 All ER 688.

4, Wall v Mutuelle De Poitiers Assurances [2013] EWHC 53, QB.

5, CPR Rule 35. 15. The fact that the judge orders the parties to instruct an expert does not make that expert a court appointed expert Beauty Star Ltd v Janmohamed [2014] EWCA Civ 451. Concurrent and court appointed experts, Nigel Wilson [2013] 32 CJQ 492, 586.

6, Cosgrove v Pattison [2001] CP Rep 68.

7, Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392. The position of a party whose expert has conceded the opponent’s case: the unresolved tension between experts’ role to further the party’s cause and their obligation to assist the court, Adrian Zuckerman (2007) 26 CJQ 159-165.

8, R v S [2012] EWCA Crim 1433.

9, Stallwood v David [2006] EWHC 2600. See also Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392.

10, Clarke v Barclays Bank [2014] EWHC 505 (Ch).

11, BMG (Mansfield) Ltd v Galliford Try Construction Ltd [2013] EWHC 3188 (TCC).

12, ACD (Landscape Architects) Ltd v Overall [2011] EWHC 3362 (TCC).

13, R v Jackson-Mason [2014] EWCA Crim 1993, [2015] 1 Cr App R 6.

14, R v Collins [2014] EWCA Crim 773.

15, R v Turner [1975] QB 834, 841G-842B, CA.

16, Legal Aid, Sentencing and Punishment of Offenders Act 2012 part 1 ss 1-62. Civil Legal Aid (Remuneration) Regulations 2013 SI 422, amended 2013 SI 2877. Criminal Legal Aid (Remuneration) Regulations 2013 SI 435, amended 2013 SI 2803 and 2014 SI 415. Legal Aid Agency Guidance on the Remuneration of Expert
Witnesses April 2015.

17, Q v Q [2014] EWFC 7, paras 12, 15, 16.

18, Q v Q [2014] EWFC 7.

19, The Common Laws of England, preface, 1636.

20, Legal Services Act 2007 s 194, as amended by legal Aid, Sentencing and Punishment of Offenders Act 2012 s 61.

21, Expert Evidence in Criminal Proceedings in England and Wales, Law Commission no. 325, 21 March 2011.

22, Practice Direction (Criminal Proceedings: Various Changes) [2014] EWCA Crim 1569, [2014] 1 WLR 3001, CPD V Evidence 33A.

23, Senior Courts Act 1981 s 51. Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120. Harrison v Harrison [2009] EWHC 428 (QB), [2009] 1 FLR 1434. Street v Larkins [2013] EWHC 1408 (Ch).

24, R v Henderson [2010] EWCA Crim 1269, [2010] 2 Cr App R 24, especially paras 1-7 and 200-221.

25, Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398.

26, Civil Procedure Rules part 35 rule 35.10.

27, Webb v Liverpool Women’s NHS Foundation Trust [2015] EWHC 449 (QB) para 54. CPR part 44.

28, Coventry v Lawrence [2014] UKSC 46, paras 49 and69. Justice in an age of austerity, Lord Neuberger, JUSTICE, 16 October 2014, paras 37-52. Justice in one fixed place or several?, Lord Thomas LCJ, sixth Birkenhead Lecture, 21 October 2013, (2014) 127 GRAYA 17-29. English Civil Justice after the Woolf and Jackson Reforms: A critical analysis, John Sorabji, CUP, 2014. Criminal Justice and Courts Act 2015 ss 88-89.

29, R(C) v Lewes Crown Court [2009] EWHC 805.

30, Denton v White [2014] EWCA Civ 906. Walsham Chalet Park Ltd v Tallington Lakes [2014] EWCA Civ 1607. CPR 39 The Mitchell Guidance, A Higgins [2015] 33 CJQ 379; J R Williams [2015] 33 CJQ 394.

31, CPR v 35.11. For research see Getting to the truth: Experts and judges in the “hot tub”, Professor Dame Hazel Genn (2013) 32 CJQ 275-299 and Concurrent and court-appointed experts –from Wigmore’s “Golgotha” to Woolf’s “Proportionate consensus”, Nigel Wilson (2013) 32 CJQ 493-507 – the Australian experience.

32, CPR part 35 and supplementing Practice Direction 35.

33, CPR part 35 and supplementary Practice Direction 35.

34, Legal Aid Agency 1 July 2014.

35, R v Sally Clark [2003] EWCA Crim 1020 – statistical evidence, and non-disclosure of evidence, by expert witness.

36, R v Henderson [2010] EWCA Crim 1269. There must be a logically consistent case based on the expert evidence. But fresh expert evidence is unlikely to be admitted. R v Arshad [2012] EWCA Crim 18.

37, R v Dlugosz [2013] EWCA Crim 2, (2013) 1 Cr App R 425 – DNA. R v C [2010] EWCA Crim 2578, [2011] 3 All ER 569 – DNA. R v Smith [2011] EWCA Crim 1296, [2011] 2 Cr App R 16, especially para 61 – fingerprints. R v T (Footwear Mark Evidence) [2010] EWCA Crim 2439, (2011) 1 Cr App R 85 – footwear marks.

38, R v Dlugosz [2013] EWCA Crim 2, (2013) 1 Cr App R Practice Direction (Criminal Proceedings: Various Changes) [2014] EWCA Crim 1569, [2014] 1 WLR 3001, CPD V, 33A. Home Office draft guidance 23 September 2014.

39, Making the solicitor-expert witness relationship work, Catherine Leech and Robert Sells, Expert Witness Supplement, Solicitors Journal, Summer 2014, pp 13-19. The Effective and Efficient Clinical Negligence Expert Witness, Michael R Young, Otmoor Publishing, 2014.

40, Sardar v NHS Commissioning Board [2014] EWHC 38 (QB), [2014] Med LR 12, paras 31-40.

41, For a damning criticism of the presentation of fingerprint evidence see R v Smith [2011] EWCA Crim 1296, (2011) 2 Cr App R 16, paras 61-62 – experts all retired police officers, no notes kept, obsolete method of presentation, not up to contemporary standards.