Expect more joint instructions, experts warned

The former head of the NHS Litigation Authority (NHSLA) has predicted many more instances of expert witnesses appearing for both sides in clinical negligence, according to a report in the Law Society Gazette. Steve Walker, who retired as chief executive of the NHSLA in August, told the annual conference of the Expert Witness Institute: "We will be seeing many more joint instructions. It's a bold step, but if the sole purpose of civil litigation is to get to the truth then why not?

"Some of the most critical and best experts simply can't spread themselves too widely – at the moment there is a race to get the best experts on each case and there shouldn't be."

He warned experts against gaining a reputation for giving favourable evidence to either the claimant or the defendant side. He said: "...the judge will know, and invariably they will lose."

He called for expert witnesses to show "honesty, integrity and impartiality" but said he had experienced 'many examples of shortcomings' among the witness profession – particularly if it was the expert's full-time career.

A comparison was made with France and other continental countries, where the expert witness is instructed and retained by the court itself, rather than by one party or the other.

The Gazette also reported on an address earlier in the day by High Court judge Mr Justice Ramsey admonishing solicitors for a lack of understanding of issues such as clinical negligence in the "new era of proportionate and predetermined costs".

"It is no longer appropriate to say to a claimant there is an open chequebook on expert evidence," he is quoted as saying. "Very often solicitors go to the expert in order to find out initially and say 'investigate this as I have not got a clue'. It's necessary for solicitors to understand and to explain to clients what the position is on costs."