New rules for expert witnesses

BMJ 1999; 318 doi: https://doi.org/10.1136/bmj.318.7195.1365 (Published 22 May 1999) Cite this as: BMJ 1999;318:1365

The last shots of the medicolegal hired gun

  1. Mark Friston, Barrister
  1. 6 Pump Court, Temple, London EC4Y 7AR

    Those clinicians who provide reports for use in the civil courts of England and Wales will find their practice changing over the next few months. There are fresh opportunities for those new to medicolegal work to take on stimulating (and well paid) work, but clinicians with established practices may well lose out.

    The civil justice system in England and Wales has just undergone an upheaval. The changes began in 1994 when Lord Woolf was appointed to review the rules and procedures of the civil courts in England and Wales. The aims of the review were (principally) to improve access to justice and to reduce the costs of litigation. Lord Woolf was particularly troubled by the escalating cost of expert witnesses and the delay caused by the need to engage experts.1 Although Lord Woolf did not target clinical experts specifically, he complained in his final report that experts had become partisan advocates rather than neutral givers of opinions.2

    The Woolf reports have crystallised into a new set of procedural rules which came into force in April. The basic premise of these rules is that the expert's function is to help the court, not to advance the case of the side by whom he or she is paid.

    There are four main areas in which a clinical expert's practice will change. The first is that clinical experts will increasingly be appointed, not by one side or by the other, but jointly (either with the parties' agreement or at the direction of the court). Established experts strongly allied to one side or the other are unlikely to be in demand for this neutral role; conversely, experienced clinicians fresh to medicolegal practice may find themselves well received.

    Secondly, the content of clinical reports prepared for the courts will be standardised (the details are available on the BMJ's website). The most noticeable change is that clinicians will have to set out not only their own professional views, but also those of any other “relevant recognised body of opinion.” This is likely to make the writing of medicolegal reports a lengthier and more demanding process, especially in view of the fact that the courts now expect reports to be well referenced and logical.3

    Thirdly, the volume of work available for experts is likely to shrink. Expert evidence will only be received by the courts if it is reasonably required to resolve the issues before the court. Severe cost sanctions will discourage the indiscriminate instruction of experts. A further factor reducing the amount of work available is that most evidence will be put to the court in writing: oral evidence from an expert is likely to be the exception rather than the rule.

    Fourthly, fees for medicolegal work are likely to fall. The new rules introduce the concept of “proportionality.” This is a nebulous concept, but essentially means that the fees may only be allowed by the court if they are in proportion to the value of the claim. Experts must thus provide value for money. “Cancellation fees” and hourly rates of hundreds of pounds an hour will need robust justification. The rules allow the court to limit the amount that an expert is to be paid.

    Despite these changes, the civil court system in England and Wales remains adversarial. This is slightly at odds with the court being advised by “neutral” experts, and it is questionable whether justice will be served by such a system. None the less, the use of neutral experts has worked well in other jurisdictions (notably Germany, Greece and, for some classes of cases, the Netherlands). Other jurisdictions (notably Italy and Portugal), however, allow the parties to nominate their own experts in addition to the court-nominated expert.

    Neutral clinical experts may feel ill at ease in such a novel role. A neutral expert could probably confidently advise the court on matters such as medical condition or prognosis, as these matters are likely to be medically uncontentious. If, however, the matter in issue is the subject of substantial clinical dispute, a single expert may not be able to address all the relevant viewpoints. It is to be hoped that the courts will recognise this and that (in appropriate circumstances) both sides will be permitted to use their own experts.

    The new rules do make provision for both sides in a medical negligence action to use their own experts.4 This is because a clinician may have a defence if his actions were regarded as proper at the time by a responsible body of medical opinion, regardless of the fact that other clinicians adopted a different practice. The court therefore needs to be told of the relevant differing practices, and a single neutral expert may have difficulty in doing this.

    The relevant parts of the rules will need to be thoroughly understood by clinical experts. The most recent version can be found at www.open.gov.uk/lcd/civil/procrules_fin/cprocfr.htm; and experts would be well advised to download the relevant rules and directions.5 A few hours spent understanding the rules now will pay dividends in the future.


    • website extra: The requirements for expert reports are available on the BMJ's website www.bmj.com


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