The case of the Ikarian Reefer 1993 2 LILR 68, 81-82 is still the definitive case in respect of the duties and role of an expert witness and the introduction of the Civil Procedure Rules in 1999 was in part designed to reinforce that. In 2000 HHJ Toulmin further refined the definition in Anglo Group plc v Winther Brown & Co Ltd but in the last 10 or so years we have slipped back into old ways with partisan experts being allowed to provide wide ranging reports and encouraged by the parties to give opinions outside their actual remit.
It has become common practice to ask orthopaedic surgeons to comment on whether claims within a Schedule of Loss are appropriate and reasonable; whether a Claimant is disabled; and whether a suggested rehabilitation plan is appropriate.
It is accepted that some orthopaedic experts may have expertise in these areas but many do not and their opinion is far from "expert".
For example, the question as to whether a Claimant is disabled is often asked without qualification of the purpose and without drawing the expert’s attention to the relevant provisions of the Equality Act 2010 or the introduction to the 7th Edition of the Ogden Tables. Frequently the expert will come back with a "No" from a purely medical perspective and the Defendant then hopes that will usurp the judge’s ability to decide on the legal basis despite the fact that it is likely that a judge should say "Yes" on proper legal analysis.
Perhaps with some of these points in mind CPR 35 has been amended as follows:
Additions to CPR 35.4 in bold:
(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.
(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify:
(a) the field in which expert evidence is required and the issues which the expert evidence will address; and
(b) where practicable, the name of the proposed expert.
(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2).The order granting permission may specify the issues which the expert evidence should address.
The effect of these changes is that we should assess cost in advance (a popular theme in the Jackson changes) and be ready to limit the issues that the expert evidence should cover. If the changes are implemented in the way they are designed by the architects of the changes we should be expecting standard directions at case management hearings dealing with and identifying:
- Discreet issues to be dealt with
- Cost of the report
In 1999 we were expecting that this would happen but it never materialised. This seems to be a second attempt at the same so we wait and see how it develops. Hopefully it will remove the long detailed and repetitive rambling “consideration of the evidence and everyone else’s opinion including his Mum’s” that we tend to get from some experts!
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