Still too many ‘hired guns’, but not quite the ‘wild west’. That is how I would encapsulate this year’s Expert Witness Survey, produced by expert training organisation Bond Solon in association with the Gazette ahead of Friday’s Expert Witness Conference.
As Bond Solon founder Mark Solon points out, the same issues recur year after year. These include pressure being put on experts by solicitors to ‘improve’ an opinion, late payment of fees and inadequate instructions.
So, what’s new? Most notably, renewed impetus for reform amid intense scrutiny of experts in light of the Lucy Letby trial and the Post Office Inquiry.
The duty of the expert is, of course, to the court, not to the paying party that instructed them. Yet ‘hired guns’ (experts who align with their paymasters) remain ubiquitous. Over a third of survey respondents said they had come across a ‘hired gun’ in the last year.
One in five, meanwhile, said they had encountered an expert who they felt was compromised due to a conflict of interest. This perceived conflict made headlines at the Post Office Inquiry, where former IT engineer Gareth Jenkins admitted changing court testimony at the request of the Post Office during wrongful prosecutions of branch operators.
‘Clearly, when exercising due diligence in the selection of an expert, solicitors must make sure that there are no conflicts of interest arising,’ the report counsels.
Experts often do not comprehend their own duties and responsibilities. Some 86% of respondents thought instructing solicitors should be formally obliged to make sure the expert understands their duty to the court. ‘Such a new specific duty would need to be required by appropriate court and professional rules,’ the report says. ‘There would also need to be a clear definition of what that duty means.’
The proportion of experts claiming they faced undue pressure from instructing solicitors to change their opinion (23%) is down on 2023. But this still happens too often. ‘I have been placed under pressure to change my findings in a case,’ one expert responded. ‘The solicitor became abusive and was sending me abusive emails. I ended my involvement with them, which led to more abuse.’
All but 5% of experts want tougher sanctions against solicitors who intentionally lead experts to breach their duty to the court. The most common sanction is costs imposed by the judge; there is also the possibility of contempt of court proceedings.
One standout finding for Gazette readers is that over 90% of experts favour a process for experts to notify the Solicitors Regulation Authority of problems arising with solicitors. ‘There is provision within the court rules for an expert to go to the judge in a matter, but the SRA could play a bigger part,’ the report says. ‘It seems many experts do not know how to approach the SRA for assistance or what assistance the SRA could give.’
SRA chief executive Paul Philip was due to address this proposal at today’s conference, as the Gazette went to press (see lawgazette.co.uk for an update).
One respondent commented: ‘I feel strongly that there should be a clear focus on the conduct of the lawyers. Medical experts are doing their best and should not be placed under pressure by the lawyers, who appear never to be criticised. The whole system of PI and medical CN should be reformed to have panels of three medics and one lawyer to review cases, apportion quantum, and identify learning. The adversarial system does not work well.’
Late payment remains a bugbear. The survey elicited many responses from experts disgruntled about low fees and solicitors not paying promptly. ‘Something seriously needs to be done to break solicitors out of their institutional refusal to follow previously agreed terms of engagement and pay their experts on time,’ said one expert. ‘I’m absolutely sick of chasing them, if they’re not rude and arrogant they’re completely uncommunicative, it simply isn’t good enough.’
Just over half of experts favour an entirely revamped system whereby the courts would select and appoint experts. The report acknowledges this would require ‘substantial work’ by the Ministry of Justice and judiciary.
Commenting, Mark Solon, who also chairs Wilmington Legal, said: ‘It may be time for the SRA to introduce specific regulations to improve the professional relationship between experts and solicitors. The court rules already provide for the right of experts to ask the court for directions. This right, and new regulations may hopefully improve the situation. It would also be helpful if the SRA provided specific regulations regarding solicitors exercising due diligence in the selection and instruction of experts.’
