Posted on 28th March 2022 by Chris Makin

The Expert Witness – A Brief History

This is a brief history of the expert witness’s involvement in litigation in recent years.  It may help you litigators to brief your experts effectively.  As an expert, I am “plugged in” to the process only at certain stages, so don’t expect me to know all the ins and outs of case management.  I will set aside my activities as a mediator and an expert determiner, though they can be important, and I will concentrate on civil procedures, whilst recognising that I am equally active in family and criminal cases.

Early Days

The first case where the status of the expert was recognised is Foulks -v- Chard [1783] (spellings vary) where John Smeaton, famous for building the Eddystone lighthouse, was giving evidence in a trial to do with coastal erosion.  Opposing counsel objected that he was giving an opinion (a judgment in the language of the day), but the judge overruled him, saying that he had often relied on Mr Smeaton’s judgments and that a man of science can express his opinions when giving evidence, within his own science.  Experts can assist the court “within their expertise” (CPR 35.3(2)).  

That is why Prof Sir Roy Meadow went so very wrong in the R –v- Sally Clark cot death case, when he said that the chances of multiple cot deaths occurring in the same family was 73 million to 1.  The number was hopelessly wrong, but he was a renowned gynaecologist speaking as a statistician.  Not his science – wrong!

The courts have relied on experts for many years, but only within their science: see Whitehouse -v- Jordan [1980] UKHL 12, the Ikarian Reefer [1993] 2 Lloyd’s Rep 68 and the CPR as above.

My Early Days

I was a general practitioner in a small practice in Leeds for some years.  Solicitor clients would ask me to help with some of their cases, for example calculating tax for Gourley in personal injury cases, but then I was asked to act as an expert on the record in a product liability case.  The claimant (plaintiff in those days), cardboard box manufacturers, claimed £330,000 loss of profit on faulty platens, but my careful analysis of the production records showed that there were many reasons for loss of production – routine maintenance, raw material shortage, holidays, staff sickness – and my opinion of loss attributable to the platens was a mere £105!  The claimant abandoned the claim, and I had caught the litigation bug.

Next, in about 1980 a tax partner had as a client a stuntman who had been injured on a Superman film at Elstree Studios, falling to the ground when the invisible wires broke.  He would not work again.

The trial was for 5 days at the RCJ.  I had sketched out a report, but it didn’t go in as evidence.  I sat in court next to the organiser of the film for Equity, listening to the casting directors and second unit directors giving evidence on what a great chap this stuntman was, that they would have booked him for their next film, and how much they would have paid him.  I had to go back to counsel’s chambers every evening (Stephen Sedley QC was our leader, later of the Court of Appeal) and recalculate my loss of earnings.  Then on the Friday, I was in the witness box all day, giving my opinions orally – no expert reports in those days!

The Turning Point

The solicitors acting for the chairman of Barlow Clowes were desperate to find a forensic accountant who could help them defend him.  BC was an investment company that said it invested only in gilts and was able to maximise returns with sophisticated computer programs.  So many accountants advised their clients to invest, and they couldn’t now act because they had a conflict.

I was Billy-No-Mates because I had not advised such an investment.  And BC was a sham, an early Ponzi scheme.  The directors had taken investors’ money and spent it on buying commercial property, vineyards, a brewery, the Spa at Scarborough, Porsches and Bentleys, and even a yacht from Christina Onassis for $3.5million!

I was required to work at the solicitors’ office for eight months, with six assistants I had recruited, and go through the mass of evidence coming from the Serious Fraud Office.  I had to pass all my general practice clients to other partners and was told that I would be at the trial at Chichester Rents (the high-tech annex to the Old Bailey) for 18 months on very high-cost legal aid.  This was a career!

Then at counsel’s chambers in the Temple, the very day before the trial started, I was told by our QC that my report (43 ring binders) had been agreed by the SFO and I didn’t need to appear at trial.  But I had given all my clients away, and now I had nothing to do!

On the train from King’s Cross back to Leeds, I drafted a mailshot letter and then wrote to solicitors saying I was a forensic accountant.  There weren’t many of us in those days, and the work flooded in; I had a department of 7 within a few months.

Oh!  And my client at BC, the chairman, was found not guilty on all charges.  The MD Peter Clowes (not my client) was found guilty and jailed for 10 years with a 15-year director disqualification.  Quite a result!

Access to Justice

In the bad old days, civil cases meandered along with snippy letters flying around, until solicitors thought it was time for a trial.  This was not good enough for Lord Woolf, the Master of the Rolls, who launched the Civil Procedure Rules on 1 April 1999 (the Family Procedure Rules and Criminal Procedure Rules came along soon afterwards).

Lord Woolf had two aims: to keep disputes out of the courts if they could be solved in some other way and to put efficiency into the courts by having judges control each case.

The rules are constantly updated – my copy is 128 – but the intentions are unchanged.  There is constant pressure to keep cases out of the court and to handle them efficiently when that becomes necessary.  Parties must constantly consider ADR, especially mediation, with costs penalties for those, win or lose, who unreasonably refuse to mediate.  Part 36 offers are important, again with costs consequences for those who do not respond as the court expects them to.  We have the hot tub (concurrent evidence) where the judge chairs a discussion between the experts, who must also answer questions from both counsel and even from their own opponents; far more efficient than having each expert give full evidence on everything which may possibly turn up in the opponent’s evidence later.

We also have the meeting of experts (with Zoom, email, telephone etc now often referred to as liaison between experts), where a joint statement must be produced after each expert’s report has been issued, on those matters where the experts are agreed, and those matters on which they have failed to agree, with reasons.  That cuts down the length of trials since agreed matters may be ignored, and the reasons for disagreement take the court directly to the matters needing attention.  I prepare for meetings of experts very carefully; they can be as important as a full trial.

Mediations are important, too.  They can take place at any time, even during a trial, and agreement may be on matters which a judge could never order.  To take an extreme example, with one of my mediations an employer had given an unhelpful reference to a departing employee, who wanted her dream job.  The employer had never given a reference before and regretted what she had said.  So at the mediation, she agreed to resile from that reference, and a new one was compiled, paragraph by paragraph, as agreed between the parties.  The employee went off, confident she would now get her dream job; something a judge could never have given her.

Dual Qualification

It will be apparent that I believe in the importance of having an expert who knows what he is doing.  In the early days, I was often opposed by chartered accountants who thought it was sexy to do a bit of expert witness work between audits.  They were hopeless.  I saw that experts must be properly trained, and I served for 14 years on the Forensic Committee at ICAEW where we launched an accreditation scheme for experts. This has now been taken over by The Academy of Experts, where I am a fellow; and I serve on the Investigation Committee there, looking at experts who still get it wrong.  There are some harrowing tales in my litigation blogs.

Wannabe experts need to recognise that they must undergo training at The Academy of Experts or the Expert Witness Institute, and litigators should be careful to instruct experts who know what they are doing.

So Where Does All This Take Us?

The world of litigation has changed much in the 30+ years I have been involved in it.  Think Part 36, mediation, hot tub, SJE, expert determination, Zoom, Precedent H, high court fees, backlog.  Litigators have a lot to think about.  From my point of view, all I can say is that you need to choose experts carefully since they need to know as much about the Brave New World as you do.  Good luck!

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