Addressing delegates at the Expert Witness Institute (EWI) Annual Conference, last week, Court of Appeal Judge, Nicola Davies, was asked whether there was a ‘sell-by date’ for medical experts, having aired her concerns that some clinicians may see expert witness work as a ‘nice retirement number’.
To avoid the risk of being perceived as a ‘dinosaur’, the Lady Justice of Appeal advised that medical experts, who have not practised for longer than 5 years, should no longer be instructed as expert witnesses.
In civil litigation, especially, there is increasing pressure to reduce costs and improve efficiency by working effectively. Maintaining the quality and reliability of expert evidence is part and parcel of this mission.
Recently, the EWI arrived at the conclusion that a ‘professional qualification’ might be the best long-term solution.
Last month, the EWI confirmed that 2 pilots of its ‘Certified Member’ scheme had been successful, with the foremost intention being the creation of a ‘gold-standard’ register of experts that can provide evidence in support/defence of claims, work with opposing experts to narrow down contested issues and most importantly, help the Courts to deliver judgments.
The ‘rigorous’ competency assessment underpinning this certification scheme was co-developed by the EWI and the Judicial Institute at University College London (UCL). It requires prospective ‘Certified Members’ to:
- Provide an up-to-date CV, which demonstrates their expertise;
- Supply details of 2 referees (preferably instructing solicitors), who can give an account of their expert witness work;
- Pass an online CPR-based test;
- Submit an anonymous, short and compliant report, based on an example case; and
- Attend a half-day assessment in London, to compile a joint statement with another expert, who will have exchanged their own report on the example case, followed by examination and cross-examination by barristers in front of a judge.
Expert witnesses from all disciplines can apply, so long as they can prove that they are registered with a relevant professional body, are covered by professional indemnity insurance and have completed report writing and courtroom skills training in the past 3-years with a recognised training body.
The scheme costs £1,200 for EWI members and £1,450 for non-members.
Successful applicants will automatically receive 1-year’s full membership of the EWI, a certificate issued against the Civil Procedure Rules and a position on the ‘Find an Expert Directory’.
Chair of the EWI’s Board of Governors and Justice of the High Court, Sir Martin Spencer, believes that, given time, this Directory will become the authoritative source recognised by the judiciary and instructing lawyers, offering a ‘pool of talent with the relevant education, training, understanding and experience’:
‘Experts should be able to demonstrate not only credentials in their field but credentials as an expert’.
However, judgments founded on expert evidence are only partially dependent upon the characteristics of the experts supplying them, as Courts must also have a clear understanding of the (often substantially complex) issues at hand to reach just outcomes.
In the past, the Judiciary has worked with the Royal Societies of London and Edinburgh to produce ‘primers’ to assist with handling of scientific evidence in the courtroom.
‘Judicial primers’ are concise documents, formulated by leading scientists and active judges, peer-reviewed by legal practitioners and created under the direction of a Steering Group, chaired by Supreme Court Justice, Lord Hughes of Ombersley.
They are written in plain English and provide authoritative commentary on scientific topics of common interest, considering the limitations and challenges associated with their application, both in and out of litigation.
In principle, ‘primers’ should be representative of the most accurate and comprehensible scientific accord, thereby allowing civil and criminal Judges to begin their decision-making process from an uncontroversial scientific baseline.
At the EWI Annual Conference, the Rt Hon Lord Neuberger of Abbotsbury warned that ‘primers’, despite being an ‘enormously valuable development’, have the potential to ‘restrain aspects of expert evidence’, if they are not systematically reviewed.
Although ‘primers’ indicate that there is a ‘clear consensus among experts’ on a particular topic, the former President of the Supreme Court went on to inform delegates that ‘theories ... generally accepted by the world and the experts in one generation can ... be rejected by another generation’.
Much like experts, ‘primers’, too, can be perceived as having a ‘shelf life’.
He also stressed the ‘very uncomfortable position’ that expert witnesses find themselves in, balancing conflicting duties owed to the Court and to the paying (instructing) party, which has the potential to hamper impartiality to the extent that the system is ‘undermined’:
‘It is almost more dangerous for a judge trying a case when they know about the topic, than when they don’t’.
As an example of this, he made reference to the Court of Appeal judgment of Liverpool Victoria Insurance Company v Khan  EWCA 392 (Civ), which we appraised in edition 267 of BC Disease News (here). Lord Neuberger opined that the medical expert on trial, Dr. Asef Zafar, whose custodial sentence for civil contempt of court was elongated and unsuspended on appeal, had been ‘at the least reckless’ for putting forward a ‘false statement [on whiplash injuries] verified by a statement of truth’, in order to satisfy the claimant solicitors instructing him.
 Neil Rose, ‘Senior judge attacks expert witness “dinosaurs”’ (27 September 2019 Litigation Futures) <https://www.litigationfutures.com/news/senior-judge-attacks-expert-witness-dinosaurs> accessed 30 September 2019.
 ‘Expert Certification’ (EWI) <https://www.ewi.org.uk/membership/expert-certification-scheme/> accessed 30 September 2019.
 ‘EWI now accepting applications for certification’ (September 2019 EWI) <https://www.ewi.org.uk/news-and-blog/news/ewi-now-accepting-applications-for-certification/> accessed 30 September 2019.
 ‘Science and the law’ (The Royal Society) <https://royalsociety.org/about-us/programmes/science-and-law/> accessed 30 September 2019.
 ‘Courtroom science primers launched today’ (22 November 2019 The Royal Society) <https://royalsociety.org/news/2017/11/royal-society-launches-courtroom-science-primers/> accessed 30 September 2019.
 Jemma Slingo, ‘Neuberger: expert witness “primers” will cut costs’ (27 September 2019 Law Gazette) <https://www.lawgazette.co.uk/news/neuberger-expert-witness-primers-will-cut-costs-/5101585.article> accessed 30 September 2019.
 Nick Hilborne, ‘Neuberger: expert witnesses can learn from Supreme Court’ (2 October 2019 Litigation Futures) <https://www.litigationfutures.com/news/neuberger-expert-witnesses-can-learn-from-supreme-court> accessed 2 October 2019.