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Where did Part 35 go?

Editors PickWhere did Part 35 go?

It has always been a bug bear of mine that in The Apprentice the business plans are not examined until the end of the process, meaning that those who get through to the end may not be able to continue and those eliminated earlier might have been much better prospects.

So what has this to do with personal injury litigation?

In this process we, as experts, have been given very specific rules to follow. We are to inform the Court of areas within our expertise only. We are there purely to inform so that the Court can come to the correct decision. In theory.

Since May 2019 there have been further considerations to make. The Academy of Medical Royal Colleges produced guidance on medical professionals wishing to give expert witness evidence, namely that their medico-legal work should be part of their annual appraisal and that they should have received training specific to this work.

The very first question, prior to instruction, should be ‘does the expert fulfil these criteria?’ The very last question actually asked is ‘does the expert fulfil these criteria?’  Have I ever been asked? No. Have I  heard of anyone being asked: Again no. For me, holding the CUEW is at least a clue that I have undertaken the training as this is an actual qualification overseen by Cardiff University Law school (I also fulfil the annual appraisal requirement).

So when do we find out that an ‘expert’ is not a suitable expert under Part 35? Usually in Court – entirely the wrong place for this to happen.

One common misconception is the status of the NHS Consultant, working or retired. Are they an expert able to give evidence to the Court? Absolutely not. Part 35 does not mention the status of the expert, only the requirements to be able to act as an expert in relation to knowledge and impartiality in their role to inform the Court. In other words the appropriately trained and knowledgeable expert who is not a consultant has a far higher standing than the otherwise untrained NHS Consultant, who should in fact not be in Court at all whatever their status in clinical practice. Professor Sir Roy Meadows was a classic example of a Professor being believed because of his status outside the Court without his credentials inside the Court being examined, with terrible and indeed fatal consequences for one of his victims.

In personal injury the assessment relies on the ability of the expert to inform the court in relation to disability. This will cover work capability, care post accident and ongoing disability. Does the expert on the stand have and training and experience in assessing disability? I would suspect that almost none have, meaning that this vital part of the assessment for the Court is outside their expertise and they therefore cannot inform the Court on this issue. All too often they are allowed to do so without question.

The first problem is the Solicitor, who probably has a few favourites especially if acting in a defendant role. Many solicitors go through agencies, a bad idea for the case and the expert as the filtering relies on the shortest waiting list and the lowest expert fee, but great for the agency who make a lot of the fee by doing very little. Insurance Companies still have their favourite hired guns who are produced with boring regularity, always to dismiss a case or go down the ‘it would have happened anyway’ route – I have one of those running at present. It is totally dishonest and in breach of Part 35 and GMC Good medical practice but he will probably get away with it; he has before.

Next in line is the Barrister, who I would expect to ensure that the expert they are about to present to the Court is appropriate. I have seen this done once in the Court meeting room, and many times seen completely inappropriate ‘experts’ allowed onto the stand.

Then we have the Judge. I have never seen a Judge question the suitability of an expert or even to question why a particular conclusion has been reached when there is literally no evidence to support it (Nightmare on St Aldgates – Barrister Magazine article 2020). They just seem to assume that if an expert is presented to the Court, then they are suitable.

So the Expert part of CPR Part 35 and Practice Directions is largely being ignored. The system is broken. There is nothing wrong with the regulations but the problem is that very few experts follow them and even fewer are held to account for not doing so. From the point of view of the lawyers, from the most junior to the most senior, in the majority cases the rules might as well not be there. For justice to be done this situation will need to change and the full force of the requirements be followed. It is perfectly possible but after so long with these perfectly good rules being ignored is anyone going to follow them?

 R Scott-Watson BSc (Hons) MB BS LLB(Hons)(Open) CUEW DDAM FRCS(Ed)

Orthopaedic Surgeon, Expert Witness & Disability Analyst APIL Expert
Medico-Legal Reporting since 1990. Over 24,000 reports.

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