Elizabeth Robson Taylor and Phillip Taylor MBE of Richmond Green Chambers review the highlights of the 2017 EWI conference.

Bending Over Backwards: Expert Witnesses Confer And Convene With Legal High Fliers On Costs And Other Awkward Questions

You always know it’s autumn when the conference season kicks off.  And it is usually the Conference of the Expert Witness Institute (EWI) that starts it in considerable style.  

This year, on 21st September 2017, over 100 EWI members made their annual pilgrimage, as it were, to their usual conference venue of Church House, looking customarily impressive in its leafy, campus-like location in Westminster, not far from Westminster Abbey and Parliament.

As in previous years, the Conference was notable for its roster of distinguished speakers, from Lord Justice Rupert Jackson, who gave the keynote speech -- to the inaugural address delivered by Martin Spencer QC (now Mr Justice Spencer) who, in addition to his role as a High Court judge, has assumed the chairmanship of the EWI.

Presided over by EWI Governor and Conference Chair, Amanda Stevens, this is a gathering where lawyers are well placed to garner important insights into the role of the expert witness in court -- and where expert witnesses can meet, greet and compare notes with each other, as well as with the lawyers whom they might possibly advise, or for whom they might well receive instructions.

Expecting an especially memorable conference this last year, the delegates were not disappointed.

The Keynote

Lawyers of course will need no reminder that it was Jackson who, in 2009, accepted the monumental task of constructing the famed and often controversial ‘Jackson Reforms’ on the vexed question of costs, implemented finally in 2013.  His keynote speech referred throughout to his latest supplemental report published on 31st July 2017. The title -- ‘Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs’ -- is self-explanatory. 

Interviewed just prior to his keynote address, Jackson mentioned that his reforms have been the subject of some negative comment. The criticisms in his original report were aimed primarily at legal fees of the exorbitant, outrageous and disproportionate variety.  Many have argued of course that what is termed disproportionate by the consumer of legal services is not necessarily considered so by the legal team which provides them.

Controversies on Costs

Herein lie the seeds of controversy, not surprisingly, which have been germinating for some time. Meanwhile -- especially transatlantically --- the matter of ‘pricing’ legal services has become almost a separate discipline, presided over by consultants – not necessarily lawyers -- who claim special expertise in this area.  It’s equally unsurprising that these and related developments have pointed up the need once again, for Jackson’s latest Report.

Affable and erudite -- note that he has been editor-in-chief of The White Book since 2010 -- Jackson explored more than a few key areas of scrutiny on fixed recoverable costs.  As expert witnesses can and do provide testimony in court which can turn the course of a case one way or another, they do expect to get paid – proportionately and preferably on time.  Judging by certain searching questions from members of the audience, issues of costs at this conference began to emerge as a major concern.

Jackson therefore referred to the causes of excessive costs identified in his initial costs review.  While most of his recommendations have been, in his words, ‘bedded in’ following their implementation in 2013, there are six remaining that haven’t -- and in which apparently little or no progress has been made. 

In response to the obvious need for a further review, the Lord Chief Justice and the Master of the Rolls commissioned Jackson in November 2016 to develop proposals for extending the principle of FRC – Fixed Recoverable Costs.

An EWI First

Judging from Jackson’s additional remarks just prior to the speech, the EWI members attending this conference were among the first to have sight of – or at least detailed information about –  the latest recommendations in his supplemental report.  

As the Report was first published in July of 2017, government ministers who were to be its first recipients, were all away on their hols and therefore not available for comment.  However, by the time this article sees the light of day, they will indeed have seen the Report, one hopes, and noted its contents. But considered in the light of experience, it is not even remotely possible that the newly published recommendations will be implemented before Jackson’s retirement in March 2018.

His wide-ranging speech to Conference, however, covered many more issues, including matters such as guideline hourly rates… ‘not satisfactorily controlled’, and inadequate numbers of staff and IT facilities in the civil courts.

He pointed a critical finger at other factors that bump up costs: ‘time consuming court procedures’ are one example -- and ‘the complexity of the law’ another, in certain areas of litigation.  The obvious remedy, which again is hardly likely to come to pass all that soon, is simplification, which would certainly benefit bemused members of the public and the growing numbers of litigants in person.

It would seem, however, that his criticisms of ‘too high’ court fees, have been met with indifference. ‘I might as well bleat at the sea like King Canute,’ he said. ‘Instead of being reduced, they’ve gone up.   I’ve made harsh comments about that, but no one has taken any notice!’  

[Sorry, we can’t help mentioning here that King Canute gets a bad press on this one.  What he was really trying to do was convince his sycophantic courtiers that even he, with all his earthly power, couldn’t control the sea -- any more than anyone can turn back the rising tide of new and ever-evolving legislation, as well as burgeoning costs.]

Turning his attention to matters of medical negligence -- ‘a very difficult subject’ – Jackson expressed the view that most such cases worth up to £100,000 were not suitable either for the fast track, or even the new ‘intermediate’ track which he has recently proposed for other matters.   However, other medical negligence claims of under £25,000 could -- or might -- be dealt with by a ‘bespoke process’ and a grid of fixed costs.

The Executive Summary

As for the Supplemental Report itself, ‘read my Executive Summary,’ is Jackson’s best advice – and a good suggestion too, as it functions as a precis and guide to the main document, while reiterating crucial points. 

The first of these is a reminder that ‘In England and Wales, the winning party is entitled to receive costs from the losing party.’   Now there’s a grim reality that many overseas/transatlantic clients (you’ve probably got at least some of those) just simply don’t get.  In their view it is: (a) incomprehensible; (b) unbelievable and (c) grossly and manifestly unfair.  

A Flawed Recipe

The consensus here is that each side should jolly well pay its own costs, thank you very much – which is not out of line with Jackson’s considered opinion that this winner-takes-all policy is quite simply ‘a recipe for runaway costs.’  Now though, it appears that the ‘recipe’ isn’t going to be changed in a large hurry.

Jackson nonetheless retains his staunch belief in fixed recoverable costs, stating unequivocally that ‘the only way to control costs effectively is to do so in advance.’  Agreed fees up-front…or in advance -- or whichever way you want to put it -- should in most circumstances, be the order of the day.

Martin Spencer QC

As the new EWI Chair, Martin Spencer QC, in his inaugural address, discussed the challenges as well as the opportunities which face the expert witness as an individual and the EWI as an organisation.

As a leading clinical negligence practitioner, it was throughout his practice as a barrister, he said, that he had experienced at first hand the crucial role that expert witnesses play, particularly in cases in which judges are not experts, either in clinical matters, or in other specialist fields, (from accountancy to zoology, for example) -- nor can they be expected to be.

He mentioned the ‘age-old problem of getting paid’, (speaking of costs) with which he was very familiar in his thirty-six year career as a barrister. Referring to his recent appointment as a High Court judge, he looks forward, he said in somewhat jocular fashion, to at least getting paid regularly!

So it was appropriate that the conference later included a panel discussion on ‘Experts Getting Paid’ which followed a Fixed Costs Session featuring, among other things, government plans to introduce fixed recoverable costs for clinical negligence.

Advocating an active approach to media, marketing and communications in a digital age, Spencer revealed an expansive and optimistic vision of the future for the EWI.  ‘I believe we can be the definitive body of experts in only a few years,’ he said, recommending the development and implementation of a quality mark that lawyers could depend upon as an assurance of expertise. 

Experts and Expertise Galore

Certainly, there was a wealth of expertise and experts all in one place at this remarkable conference.  Sadly, space doesn’t allow detailed description of many of the other conference speeches and debates, most of which dealt with highly specialised topics, from forensic science to soft tissue injury, with more than a few led largely by lawyers.  The food wasn’t bad either and the networking opportunities were top drawer.

The date of the next EWI Conference, scheduled for September 2018, is one you should definitely include in your Chambers diary.