Impartiality and Independence of Expert Witnesses in court
First, the topic of Expert Witnesses was addressed. In particular, how in cases over the past few years, Judges have heavily penalised experts, their instructing solicitors and also clients, where the impartiality and independence of the expert was questioned.
In Liverpool Victoria Insurance Co Limited v Zafar (2019) EWCA CIV 392, the instructing solicitor requested that the expert amend his report, so that it stated the claimant was suffering from their injury for 7 months, rather than 1 week, in order to support the claim for damages. In doing so, the expert was providing false evidence, which he then certified with a statement of truth in his report.
Both the Solicitor and expert were found in contempt of court and the solicitor was sentenced to 15 months in prison. This case made clear that if a solicitor, or the instructed expert are found to be in contempt of Court, then they will almost certainly face a prison sentence of up to 2 years.
In order to avoid the risk of an expert’s impartiality being questioned, it was advised that Experts should not be part of the litigation ‘team’, which would usually include the Client, their Instructed Solicitors and Counsel. Rather, they should be kept at arms length, in order that no doubts can be raised as to their independence, or question marks raised over the veracity of their report.
Updates to Civil Litigation Costs
Dominic then discussed a number of issues within the remit of costs, such as damages based agreements (DBAS) for Defendants, guideline hourly rates, part 36 offers and the new fixed costs regime.
Part 36 case law
With regard to Part 36 offers, case law has confirmed that Part 36 offers of up to 99.7% of the sum claimed were held to be reasonable offers to settle. This does not mean that in all cases, a Part 36 offer for 99.7% of the sum claimed will be deemed a reasonable offer to settle. Such offers are likely to be construed as reasonable in only the most clear cut of cases, where the Claimant is almost guaranteed to be successful in recovering 100% of the damages claimed.
A notable example of this occurring was in the case of OMYA UK Limited v Andrew Excavations Limited (2022) EWHC 1882. Here, the Claimant made a Part 36 offer of 98.95% of the sum claimed. Roger Ter Haar KC, sitting as a High Court Deputy considered the defence to lack credibility and to be wholly implausible. In his judgment, he stated that the best hope for success for the Defendant was if the Claimant’s witnesses did not attend trial. Given the circumstances of the case, a Part 36 offer of 98.95% of the total claim was reasonable and the Defendant was subject to the usual Part 36 cost consequences.
New fixed cost regime
However, the biggest change set to affect the matter of legal costs in proceedings is the new fixed costs regime, which will apply to the majority cases where the claims are estimated to be worth between £25,000.00 – £100,000.00.
These fixed costs are set to be introduced in April 2023. Claims that are caught by this regime will be assigned to 1 of 4 bands. Band 4 will be for the most complex claims and Band 1 for the most straightforward. This will apply to any claims where the cause of action accrued on, or after the date the new fixed costs regime is brought into play.
Certain cases are excluded, such as those concerning mesothelioma/asbestos, complex PI and professional negligence, actions against the police, child sexual abuse and intellectual property. There is also set to be a general exclusion for matters that are deemed to be ‘too complicated’. This exclusion will be granted for cases where the trial will last for more than 3 days, or the parties to proceedings have instructed more than 2 experts.
If a claim falls within the scope of this fixed costs regime, the maximum costs a party can recover from the other party (or parties) will be dictated by a reference to a table, which will set a maximum value dependent on the band the case is assigned to.
In the applicable cases, this will dispense with the need for parties to provide costs budgets and for there to be hearings in respect of the same. Similarly, there will be no detailed assessment on costs and the indemnity principle will be disapplied. As to Part 36 offers, a good offer will generate a 35% uplift in the fixed costs that would otherwise have been awarded.
Whilst this does not prohibit solicitors from charging above the fixed costs set, parties to litigation will need to be mindful that they can only recover the amount set by the Court. These fixed costs have yet to be decided, and so it remains to be seen how the fixed costs will compare to the average costs incurred in proceedings of that particular type.
Witness statements – points to consider and pitfalls to avoid
Dominic then addressed the topic of witness statements, covering key points to consider and pitfalls to avoid, when preparing the same.
A key takeaway on this section of the conference was that all too often, parties seem to forget the purpose of witness statements in Civil Proceedings. Non expert witnesses are to provide facts in their statements, based on the issue(s) they have first hand experience of. Statements must be as clear and concise as possible and in the witnesses own words.
Witness statements are not the appropriate forum in which to make submissions, or for the witness to provide their opinion on matters. The only appropriate situation in which an opinion can be offered is when expressing a view on an objective perception. A permitted example given was ‘it was a foggy day…’.
Judges appear to be more alert to rules in relation to witness statements and consequently, defaults are more likely to be picked up and punished. As with expert witnesses, the gravest of sanctions can include striking out all, or part of witness statements and if a false statement, or statements are made in witness statement without an honest belief in their truth, witnesses can be held in contempt of court.
Compulsory Alternative Dispute Resolution (ADR)
Finally, Dominic discussed compulsory ADR. My colleagues Kate and Rajinder addressed the new compulsory mediation scheme, in respect of claims valued at £10,000.00.However, it now appears the government have plans to extend the scope of compulsory ADR to higher value claims.
There are limited details on what these plans may entail and how these will work in practice. Currently, it is expected that the changes will come into force sometime in 2023, which is set to see a number of significant rule changes in respect of civil litigation.
Summary & how our civil litigation solicitors can help
To summarise, this conference made clear that it is imperative to ensure compliance with the rules and procedures regarding expert and non-expert witnesses. The consequences for non-compliance are incredibly serious and so practitioners need to be wary of this and advise their clients accordingly.
The pending changes to costs and the introduction of compulsory ADR appear to be a conscious effort to push parties to settle matters, without recourse to a final hearing or trial. It waits to be seen how these changes will work in practice and indeed, it will take some time before their impact can be fully assessed. Irrespective of this, parties should always been open to ADR where appropriate and this is something we have and will continue to advise our clients to pursue.
If you have any questions on any of the above updates contact our London civil litigation solicitors today on 0207 228 0017.