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When it comes to supporting the rule of law, experts matter

Lord Neuberger delivered the keynote address at the annual conference of the Expert Witness Institute at Church House, Westminster in September. ELIZABETH ROBSON TAYLOR of Richmond Green Chambers summarises the highlights.

Looking back on autumn, lawyers will recall that it isn’t just a season of mists and mellow fruitfulness – although most do enjoy those. With predictable regularity, the falling leaves of autumn not only herald in the new legal year, they also create a really quite inspiring backdrop for fruitful new opportunities to meet, greet, network, contemplate and confer.

Yes, the season of conferences kicks off in autumn, usually commencing – as far as the legal profession is concerned – with the annual conference of the Expert Witness Institute (EWI): an event of particular interest to lawyers.

The testimony of the highly-qualified, rigorously-trained expert witness can be crucial in court across a range of cases and circumstances, as Lord Neuberger emphasised in his keynote address, and it is the primary aim of the EWI to foster and nurture this role. As EWI Chair Martin Spencer has insisted: “It has never been more important to have a credible voice for expert witnesses highlighting the critical role they play in our justice system.”

If anything, the conference held up a mirror to the uncertainties of 2019, with its stated theme expressed as Nothing stays the same; is everything changing? Well, yes, actually – the implication being that, as moving with the times is an imperative, mental agility and a willingness to adapt to change are what you need in any profession when ‘nothing stays the same’. As Conference Chair and EWI Governor Amanda Stevens reminded the delegates in her opening address: “Change is the only constant.”

At the same time, impartiality on the part of the expert witness is also key – a point emphasised by Lord Neuberger, retired president of the Supreme Court. Experts, he said, occupied a ‘very difficult position’ in balancing their duty to the paying party with their duty to the court. While conceding that there is ‘no perfect answer’ here, he pointed out the necessity for everyone to bear in mind their responsibilities.

The judge needs help

“When it comes to expert witnesses,” Lord Neuberger said, “the whole point is that the judge needs help, because he or she does not know about the topic. It is almost more dangerous for a judge trying a case when they know about the topic than when they don’t.”

Lord Neuberger then addressed a number of other topical issues, covering a number of key points. He referred, for example, to the then-recent historic decision of the Supreme Court that Parliament could not be prorogued. Also under scrutiny in his speech were the differences between ‘negligence’, ‘recklessness’ and ‘dishonesty.’Primarily, negligence stems from carelessness; recklessness means you don’t care whether you’re wrong or not; and dishonesty is basically a deliberate lie when the liar who’s lying knows he’s lying but lies anyway. The Attorney General’s advice relating to the above-mentioned case was therefore not ‘negligent’, merely ‘wrong’ – a controversial view if there ever was one. Referring to a specific case, Lord Neuberger stressed the importance judges assign to honesty, warning that in the event of dishonesty, ‘the law will come down on your head’.

Other issues, such as over-long documentation and contingency fees were also brought up. The former is disapproved of due to time constraints and the destruction of paper. The latter ‘make judges uneasy’ in view of the expert’s obvious financial incentives. “If you are charging on this basis, make sure the court knows,” is Lord Neuberger’s advice.

Generally, the relentlessly increasing pressures on time and costs are exacerbated by what his Lordship termed the ‘tsunami of documentation’ – a problem which might, he added, be dealt with in the future by Artificial Intelligence (AI).

Losing our jobs to robots?

Obviously, there are no ‘magic answers’ to that question as, like Brexit and its long-term effects, so much is unknowable. So the image of a row of robots perching in a future Supreme Court is definitely in the realm of fantasy.

In the here and now, however, the future of the EWI hinges on training. Many useful courses are available for EWI members, and certainly training is one of the benefits of EWI membership. Experts may be expert in their own respective fields – from architecture and accountancy to a range of medical specialisms – but all need further instruction on such matters as court procedure and writing expert reports. Also useful are the opportunities for networking that conferences provide.

“People who don’t come to these conferences,” observed Lord Neuberger, “are the very people who should.”

‘Boris the Spider’…and the Lady and the broochCertainly, if you were one of those experts who, for whatever reason, had decided not to attend the conference you’d have missed having a laugh at Martin Spencer’s reference – in his Chair’s Address to the delegates – to Lady Hale’s now famous sparkling arachnid brooch, which sparked no small amount of comment. Could this item of jewellery have been an oblique reference to The Who’s classic song Boris the Spider? (Look, he’s crawling up my wall, etc). Considering that anything to do with Brexit has been monumentally sombre and serious, that bit of light-heartedness was to be welcomed.

In all, however, Spencer’s speech was very much on the same or similar page as Lord Neuberger’s. Focusing on the changing context for expert witnesses, he stressed that the ‘critical role the expert witness plays in the justice system necessitates their compliance with the relevant legislation and regulations’.

Quite rightly, he has taken the view that experts appointed by instructing parties will have the qualifications they say they have. A leading clinical negligence barrister from Hailsham Chambers, Spencer had some pithy things to say about experts who may be experts in their own area, but not expert in understanding their duty to the courts. “The time has come,” he insisted, “when experts are accepted only when their credentials as experts are verified.”

Discussions and speakers

Following a subsequent panel discussion chaired by barrister and professor of law science Penny Cooper, in which Martin Spencer participated, the conference featured a range of topics presented by distinguished speaker after distinguished speaker.

“I have no doubt,” Martin Spencer said in his welcome note to the delegates, “that you will leave here at the end of the day a better and in particular a more confident expert.” It is unlikely that any delegate would have disagreed with that.

• Next year’s annual conference of the Expert Witness Institute will take place on 18 September at the Cavendish Conference Centre on Duchess Mews W1. Early bird booking is now available via the website at www.ewi.org.uk.

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