Moves to cut back on expert witnesses in court

A clampdown on the use of expert witnesses in court cases is on the cards as the costs of compensation claims and insurance premiums continues to climb.

Moves to cut back on expert witnesses in court

New rules to quality assure expert witnesses and control costs will be recommended by the Law Reform Commission after eight years of deliberations.

They come as figures from the insurance industry show the cost of expert evidence in personal injury cases relating to motoring accidents rose by 34% from 2013-2015.

The Law Society has complained that solicitors are at the mercy of experts whose testimony, particularly on medical matters, is vital and who can name their price knowing the legal team is not in a position to haggle.

The new rules stop short of seeking specific caps on fees but they would require both sides in a legal dispute to limit the number of expert witnesses they employ and the time they will spend in court by justifying their contribution to the proceedings well before the case is scheduled to begin.

They also make clear that the role of expert witnesses is not that of hired gun, employed to strengthen the case of either side, but to assist the court in understanding the technical or medical aspects of the claim.

Reform has been urged since 2008 when the Law Reform Commission first published a consultation document on expert evidence.

More recently the Supreme Court made criticisms after the parties in a dispute refused to exchange expert reports until the case began and much of the 17-day hearing that followed was taken up by expert evidence that was ultimately deemed irrelevant.

In another case, a judge urged the Medical Council to investigate after he ruled a doctor had deliberately withheld information about a plaintiff’s prior accident in a personal injury claim.

Another judge had to rule in a dispute over the impartiality of an expert witness which one side claimed was being paid an exorbitant fee by the other side.

One case ended up before the taxing master in a dispute over cost claims by one side for five-star hotel accommodation for an expert witness.

Caroline Conroy Keeley, of La Touche Training which runs courses for expert witnesses, said practices needed to be tightened up.

“At a minimum, some guidance or code for experts is necessary and has been needed for some time,” she said.

Ms Keeley said deliberate bias, where an expert intentionally took a particular stance to strengthen a case for the paying party, was rare but unconscious bias was an issue.

“Regulations would make it clear to an expert that their duty is to the court and not to the instructing client,” she said.

“It would also be important to state that all material facts must be disclosed whether favourable to the instructing client’s case or not.”

No formal register of expert witnesses exists but the Law Reform Commission found more than 1,000 areas of expertise available. Ms Conroy Keeley said that there was a steady rise in the number as cases became more technical and complex.

New rules were introduced by the president of the High Court in October to try to control the use of expert witnesses but, crucially, they do not apply to personal injury cases where the greatest costs are incurred.

Stuart Gilhooly, president of the Law Society, said regulation would be welcome but he also called for the restoration of fee scales which were scrapped after they were found to be in breach of competition law.

“It’s kind of the Wild West out there now in terms of what you can charge. In reality you can’t shop around for a medical expert to give evidence when the court needs to hear from the doctor who treated you,” he said.

Industry body, Insurance Ireland, says that it would welcome regulations.

“Insurance Ireland has advocated for panels of independent experts to be used, as happens in France, to reduce the costs associated with dual sets of competing experts and their associated costs,” it said.

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