Expert witnesses are warned to think carefully before taking on medico-legal work.
An indirect consequence of cost reforms introduced in April 2013 following Lord Justice Jackson's review is the more rigorous approach taken by the Courts to ensuring that Court timetables are met.
The Court of Appeal has emphasised that legal representatives should routinely comply with rules, practice directions and orders, rather than treating compliance as optional. While there is still some room to cooperate and modify the timetable, judges will now be stricter when parties fail to comply.
A standard directions timetable allows parties to agree up to 28 days' extension between themselves. Anything more must be considered by the Court, and could be refused.
Experienced expert witnesses will be aware that this is a substantial change to the old system, where parties might agree a lengthy extension and the Court's approval would not necessarily be required.
The Court may exclude any party from calling expert evidence if they have not served their expert reports in time
The Court may exclude any party from calling expert evidence if they have not served their expert reports in time. If the party considers that the delay is the fault of the expert, then the expert may be sued for the loss of the chance of winning the case and/or reported to the GMC.
Judges are also prepared to criticise experts for failure to comply with the timetable. Where this happens, there will be a risk that an expert may be personally liable for all costs.
MDU advice to experts
Experts should familiarise themselves with Part 35 of the Civil Procedure Rules which governs expert evidence, the Civil Justice Council Protocol for the instruction of experts, as well as the GMC's guidance in 'Good medical practice' (2013) and 'Acting as a witness in legal proceedings' (2013).
The following suggestions may also help to reduce the risk of not complying with the Court timetable:
- When you are approached to prepare a report, make sure that you have sufficient workload capacity to complete it. It is important that you are realistic about the amount of medico-legal work that you can take on, bearing in mind your other commitments.
- Remember that your obligations extend beyond providing your written report. If for any reason - for example, if you are taking a sabbatical - you do not think you could commit to the entire process, which may include a lengthy court case, then you must inform your instructing solicitor at the outset.
- Ensure that you have a system to check for conflicts of interest. Have you accepted instructions from another party? Have you been professionally or personally involved with one of the clinicians involved in the case and therefore couldn't be truly impartial? Make sure you know the names of all involved, including the solicitors, to carry out your check. If you accept an instruction and later realise that there is a conflict, and can no longer act, this will cause delay for which you may be criticised.
- Plan ahead in terms of your medico-legal work. If you intend to retire in the near future, make your instructing solicitor aware of this at the earliest opportunity, and ensure that you take advice from your MDO about indemnity for ongoing medico-legal work.
- Ask your instructing solicitor to provide you with details of the court timetable at the earliest opportunity. If you cannot comply with the timetable then let the solicitor know as soon as possible so an application to amend the timetable can be made without delay.
- Ensure that you note the relevant dates specified in the timetable and let your instructing solicitors know if you will be unavailable in the three weeks before the relevant date. It is worth noting key dates in both your work and personal diaries, so there is no chance they will be inadvertently overlooked.
Aidan qualified as a solicitor in 2010. He joined the MDU Legal Department in October 2012 and assists members with GMC investigations, inquests, disciplinary hearings, clinical negligence claims and general advisory queries.
See more by Aidan Scully
After postgraduate studies in Medical Ethics and Law, Joanne trained in private practice, before joining the MDU’s in-house legal department in 2000. Joanne assists medical and dental members with a range of legal issues, including clinical negligence claims, GMC and GDC proceedings, investigations by NHS England and Wales, and inquests.
See more by Joanne Brooks