Expert Witness Journal by ExpertWitness

ISSN 2397-2769

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

ACCOUNTANCY- RICS - FINANCE Vol 1 Issue 28 - Summer 2019 - £5.00 €6.00

Nireeja Pradhan Expert Witness Reports in Civil & Criminal Cases

Dr. Pradhan is a Top Level APIL expert witness in psychiatry and an AVMA accredited expert psychiatrist in negligence cases. She has provided hundreds of psychiatric reports across all areas of law since 2003 and is regarded as one of the leading expert witnesses in the country. Dr. Pradhan was awarded Fellowship of the Royal College of Psychiatrists in recognition of her clinical excellence and as a leader in the field of psychiatry. Dr. Pradhansâ&#x20AC;&#x2122; extensive clinical and psychiatric report experience have enabled her to develop a strong reputation with lawyers requiring a robust independent psychiatric report.

Expert Psychiatric reports covering; u u u u

Medical Negligence Personal Injury Abuse Cases Fitness to Practise

u u u u

Criminal Defence Employment & Stress: Equality Act Family Cases Immigration

Direct Access to Expert â&#x20AC;&#x201C; No Agency Fees Short waiting times - Deferred payment terms Consulting Rooms in Birmingham, Manchester & London Submit case enquiries and obtain quotes online at www.drpradhan.co.uk

Telephone: 0800 161 3395 Email: contact@drpradhan.co.uk

Welcome to the Expert Witness Journal Hello and welcome to the 28th edition of the Expert Witness Journal. In this edition we have concentrated on the non-medical side of Expert Witness work. One of our main features covers Surveying, including articles from Dr Angus Ramsay on Structural Engineering experts and an article from Dimitrios Tousiakis, from HKA regarding Forensic Delay Analysis. We also feature articles on PTSD, obtaining the best advice from your expert, ‘Post-Mortem’ Capacity Assessments and Reflections of an Expert Witness. Our next issue will include a focus on the Bond Solon Expert Witness Conference taking place on the 8th November in London. As well as this we will feature articles on all aspects of Expert Witness work. We will be exhibiting at the EWI conference in September, If you are attending please pop by our stand and say hello. We will also be publishing a special ‘International’ issue which will be distributing at the EWI Singapore AGM and at GCC Forensics Expo in Bahrain. If you would like to submit or comment on any articles, please contact myself at the email below. Many thanks for your continued support. Chris Connelly Editor Email:chris.connelly@expertwitness.co.uk This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’. All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Exper t Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2019. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

EXPERT WITNESS JOURNAL

SUMMER 2019

Expert Testimony Leads to Fairer Trials? A University of Manchester academic has become a leading expert of rap music in UK criminal cases. Dr Eithne Quinn (above) a University of Manchester academic is a leading expert of rap lyrics in UK murder cases.

In several cases in which Eithne has been instructed, the judge agreed to exclude the violent rap lyrics from the case pretrial, ruling that the lyrics were more prejudicial than probative.

When gangsta rap lyrics and videos are presented by prosecution counsels as evidence of intent to commit or confession of crime, defence teams have approached Dr Eithne Quinn, a rap expert and author of the book, 'Nuthin' But a 'G' Thang: The Culture and Commerce of Gangsta Rap' (Columbia University Press, 2005).

Though each case is different, Eithne believes that the use in prosecution cases of rap lyrics and videos is often prejudicial – in both a legal and a racial sense. Almost all of the defendants in the cases in which she has testified have been black. In one gang behaviour order ("gangbo") case in which she was instructed, the defendants faced a custodial sentence for breaching an injunction that banned them from performing their own music. In several recent cases, Eithne acted as an expert in cases in which “drill” rap videos were played in court. In these cases, prosecutors were trying to establish joint enterprise, a controversial legal doctrine. Eithne said: “The use of rap videos to establish bad character and dangerous association in joint enterprise murder cases, in which there are multiple defendants, is a particularly troubling trend.”

They ask her to explain why some young men write violent rap lyrics and what they mean. Eithne has now been instructed in more than a dozen cases including several London murder trials. Criminal barristers who have worked with her say that defendants have received fairer trials thanks to her testimony. In some trials, there is a direct link between a specific rap lyric or video and the incident under investigation, in which case, Eithne agrees, it is right that it should be scrutinised as evidence in court. However, in many cases she has seen prosecutors seek to introduce rap music that has no direct link to the crime in question.

Dr Eithne Quinn / Rap expert and author of 'Nuthin' But a 'G' Thang: The Culture and Commerce of Gangsta Rap

In several cases the Crown contended that the first-person character in the gangsta rap verse written by defendants should be taken at face value – as an autobiographical statement. They contended that the rap lyrics were 'blueprints' for violence.

Mr Aruni Sen UK CONSULTANT MBBS, MS, FRCS (ENG & EDIN), FRCEM, DIP.MED.ED

But Eithne rebutted that the defendants were typically mimicking the verse form of famous rap stars. In her monograph she had explored the use of the persona device in gangsta rap. The first-person perspective helps establish all-important street credibility. So she finds it worrying that gangsta rap lyrics are being increasingly taken literally by the prosecution in serious criminal cases.

Medico-legal reports for trauma, personal injury & acute emergencies of any nature; medical review for clinical negligence; clinical expert witness for courts, short review reports on minor injury claims. MedCO & CPR part 35 accredited; ICO registered. APIL expert Area of work; Wrexham, North West of England and the Channel Islands Contact, all postal communication to: TY YNYS, 4 Sables D’Or, Les Grandes Rocque Castel, Guernsey, GY5 7FS

Eithne said: "The outlandish personas they adopt draw on narrative traditions of boasting in black folklore. Due to the huge commercial popularity of gangsta rap, they have become very formulaic. Usually, young men write these rhymes in the hope of becoming successful rap artists or just to entertain and impress their friends.

Alternate Address (no posts please): 40 Acton Hall Walks Wrexham, North Wales, LL12 7YJ Tel: 07779 529026 (Mrs. Jacqui Davies, Secretary) Mobile: 07931 542759 - 07839 755001 Email: thesens@msn.com Fax: 01481 258472

"Sadly, judges and juries, who aren't familiar with the music, may easily conflate rapper and persona." EXPERT WITNESS JOURNAL

SUMMER 2019

Contents Some of the highlights of this issue Events and Training

page 5

The Single Joint Expert by Alec Samuels

page 11

The Benefits of instructing Experts through a Consultancy by Somek Associates

page 17

Is the Opioid Crisis Coming to the UK and What Impact Could it Have on Medical Negligence Claims? by Dr Chris Jenner,

page 20

How to get the best from your Expert - Practical advice for Instructing Solicitors by GWP Consultants LLP

page 23

Competition for Commercial Disputes Around the World

page 34

Post-Traumatic Stress Disorder - Contemporary Analysis of Medico-Legal Evidential Issues by Hugh Koch and associates

page 42

In a Foreign Land by Bernard J B Kat

page 51

Patient has flashbacks and bad dreams. Surely she has PTSD? by Serena Nathaniel-James

page 56

Post-Mortemâ&#x20AC;&#x2122; Capacity Assessments by Giles Eyre & Dr Linda Monaci

page 58

The Structural Engineering Technical Expert, What does he do? by Dr Angus Ramsay page 63 Briefing: Reflections on the Role of the Expert Witness by Brian Clancy

page 69

Disputes Between Landlords and Tenants - Pitfalls and How to Avoid Them by Martin Burns

page 84

A Life in Construction by Keith McMillan

page 88

Duxbury Tables - At A Glance - What Are the Risks? by Windsor Actuaries

page 92

Forensic Delay Analysis of Linear Projects by Dimitrios Tousiakis, Director, HKA.

page 94

The New ÂŁ20 Note and Money Laundering by Tim Keeling.

Professor J. Peter A. Lodge

page 109

MD FRCS FEBS

Recognised internationally as an expert in surgery for disorders relating to the gallbladder, liver and bile ducts as well as weight loss (bariatric) surgery Surgical training primarily under the guidance of Professor Geoffrey R Giles, and the New England Deaconess Hospital (Harvard Medical School), Boston, USA, under the guidance of Professor Anthony P Monaco.

Please look at my website www.peterlodge.com for more information but inquire by email: peter.lodge@nhs.net Telephone: PA +44 (0) 113 2185944 - Fax: +44 (0) 113 2185987 Address: Spire Leeds Hospital, Jackson Avenue, Leeds LS8 1NT EXPERT WITNESS JOURNAL

SUMMER 2019

Risk Assessments and Vicarious Liability for Personal Injury Suffered at Work Parties by Anna Henderson, Herbert Smith Freehills A High Court ruling has emphasised the limits to vicarious liability for personal injury suffered at a postwork party and provided guidance on an employer’s duty to carry out a reasonable risk assessment.

one of his decisions. The director was responsible for all management decisions in a relatively small “round-the-clock” company, the drinks had followed on from a work event and the director had chosen to wear his “metaphorical managing director’s hat” by delivering the lecture; as such he was not merely one of a group of drunken colleagues whose conversation turned to work. The attack could therefore be seen as a misuse of his authority and was sufficiently connected with his job for vicarious liability to be imposed.

In Shelbourne v Cancer Research (UK), an employee was seriously injured while dancing at a Christmas party when a visiting scientist, who had been drinking, tried to pick her up but dropped her. The Court rejected her contention that, if an event was to include alcohol, the employer’s obligations were to provide non-participating, trained staff to look out for trouble at the party and to require each attendee to sign a written declaration that they would not act inappropriately. The Court considered that the employer’s risk assessment was sufficient in taking into account the fact that alcohol would be available (it put in place security to ensure partygoers did not access the work laboratories, and addressed the risk of accidents caused by uneven surfaces or collisions whilst playing the games provided). It did not need to go on to consider what might happen should an inebriated person act recklessly on the dancefloor, given that there had been no previous incidents of inappropriate behaviour caused or contributed to by the consumption of alcohol and no previous complaints about the scientist’s behaviour. Had this not been so, more might have been required of the employer.

Note that further developments are expected in this area. Morrisons have been granted leave to appeal to the Supreme Court against the Court of Appeal ruling that an employer can be vicariously liable for an employee’s misuse of data, even where it has done as much as reasonably possible to prevent the misuse and the employee’s intention was to cause reputational or financial damage to the employer.) Case references are: Shelbourne: [2019] EWHC 842 Bellman: [2018] EWCA Civ 2214 Anna Henderson Professional Support Consultant, London +44 20 7466 2819

The Court also ruled that the employer was not vicariously liable for the scientist’s behaviour. An employer will be vicariously liable if there is a sufficiently close connection between the employment and the employee’s wrongdoing to render it just and reasonable to impose liability, ie, the wrongdoing was within the “field of activities” assigned to the employee. In this case, the conduct was held to be outside the “field of activities” performed by the scientist, which was simply his research work. The Court rejected the claim that his “activities” included to “interact with fellow partygoers in alcohol infused revelry, leading to the setting aside of the ordinary boundaries of social interaction, all of which was authorised by CRUK for its own benefit, since it stood to gain from the enhancement of its employees’ morale”. The party had been provided because of staff expectations, not to derive benefit for the employer.

Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims. Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses and the Expert Witness Institute. Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Nationwide, including Manchester, Liverpool, Leeds, Birmingham and London. Domiciliary visits can be arranged.

The case can be contrasted with that of Bellman v Northampton Recruitment Ltd, where an employer was held vicariously liable for a managing director’s drunken assault on a colleague leading to very serious personal injury. The incident took place at drinks following on from the company Christmas party, when the managing director (and also owner of the company) was lecturing the staff present to assert his authority and took exception to a colleague questioning EXPERT WITNESS JOURNAL

Contact: Tel: 0161 449 7442 - Lorna Brindley: 07711 963 200 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF

SUMMER 2019

The Rise of Vehicle Autonomy in the UK: Implications for Road Traffic Accidents Specialist Personal Injury solicitor at Trethowans, James Braund, explores the implications of the increasing shift towards autonomous vehicles in the UK. the environment scanners (and their effectiveness in bad weather). It also remains to be seen how the technology will cope with lane markings and road signs differing around the world. There is also the natural reluctance of people to relinquish control and trust their safety completely to a robot, particularly when eye contact and driver interaction still governs a significant part of driving decisions in busy and queuing traffic.

In February 2019 the Ministry of Transport updated the Code of Practice for Automated Vehicle Trialling and gave a press release announcing its aim to see fully autonomous cars (with no driver or steering wheels) tested, with the plan for such vehicles to be on the roads by 2021. This is despite a series of fatal Road Traffic Accidents in the United States of America, reported by the New York Times, including when an Uber autonomous car killed a pedestrian in Arizona and a Tesla on autopilot mode was involved in a fatal accident, both occurring in March 2018.

In such situations, where an autonomous or semi-autonomous vehicle has been involved in a Road Traffic Accident, it is unlikely to be a straightforward issue in determining any finding of fault. At present liability for a non autonomous vehicle will generally lie with the driver of the vehicle at fault. However, where a driver has relinquished some or all control of the vehicle arguments are likely to arise directed at other involved parties.

At present, under the Code of Practice, the law requires some form of human overseeing the vehicle, which can be remotely and passive (but must be ready to exercise control if required). Interestingly, an AXA commissioned Opinium survey from last year suggested that, despite the fact that around 90% of Road Traffic Accidents are caused by human error, only 27% of people thought autonomous vehicles would improve road safety.

The Autonomous and Electric Vehicles Act 2018 allows an insurance company to recover damages from the manufacturer of an autonomous vehicle (levels 4 and 5) if the technology is to blame for the cause of the accident.

The Society of Automotive Engineers has set out five levels of autonomy in vehicles: Level 0 involves the vehicle being fully controlled by a human; Level 1 is where there is some form of driving assistance, such as braking control; Level 2 is partial automation and includes a vehicle being able to control both steering and acceleration / deceleration; Level 3 is conditional automation and is where a vehicle can make informed decisions and control itself, but requires a human to take over if it is unable to execute a task or the system fails; Level 4 (high automation) does not even require a human to take over. Finally, Level 5 (full automation), involves the vehicle not requiring a human to take over in any situation and can adapt to its surroundings.

However, semi-autonomous vehicles (levels 1, 2 and 3) are not governed by the Act and there is clearly potential for complex arguments on liability in Road Traffic Accidents involving these vehicles. There could well be issues raised as to whether the driver or the manufacturer was at fault. There could also be the potential of additional arguments both in relation to the last person to have serviced or calibrated the vehicle and also arguments under the Consumer Protection Act 1987 and/or the Supply of Goods and Services Act 1982. James Braund, specialist Personal Injury and Clinical Negligence solicitor and Senior Associate at Trethowans LLPâ&#x20AC;&#x2122;s Dorset offices comments: â&#x20AC;&#x153;At present, the law relating to semi autonomous vehicles appears caught in something of a limbo between fully driven vehicles, subject to many years worth of legislation and case law and fully autonomous vehicles and driverless vehicles, subject only to the Autonomous and Electric Vehicles Act 2018 and the Code of Practice. It is easy to foresee a myriad of scenarios when complex technological arguments (potentially relating to the manufacture, calibration and maintenance) could be raised as to exactly who was at fault in accidents involving semi autonomous vehiclesâ&#x20AC;?.

What are the challenges facing autonomous vehicles? There are clearly lots of challenges facing engineers working on autonomous vehicles, highlighted by the recent issues and fatalities. One concern which arises is regarding potential questions over the quality of EXPERT WITNESS JOURNAL

SUMMER 2019

Practical tips for Expert Witnesses in the Family Law Courts by Justine Woods, Partner at Cooper Grace Ward and leads the family law team. Your experts need to be carefully chosen and instructed in their defined area of expertise. The cases are replete with people taking on jobs that are out of their sphere of speciality and then being horribly criticised by the courts. An expert is not a client’s advocate – they are appointed to inform the parties and the ‘trier of fact’ (AKA the judge) as to value.

Valuation of assets is the second vital step in a five step process that the family law courts apply (and expect separated couples to be guided by if they are wisely negotiating an agreement outside of court) to determine their financial entitlements at the end of a marriage or relationship. A couple can agree on the value of any asset in what family lawyers call ‘the pool of assets’ available for division between them. However, if parties do not know the value of their assets (which is probably the case) or they cannot agree on a value, the family law system is predicated on the idea of a single qualified expert valuer being engaged to produce a written report about the value of any item – personal belongings, art, jewellery, houses, commercial properties and businesses and even items that are not saleable, such as interests in partnerships.

A capable, sensible valuation expert is often an essential element in helping parties reach a settlement or, if ‘all reasonable activities to ascertain whether agreement can be reached on the value of the assets in the proceedings’ as one judge described it in the case of Varnham, ultimately fail, to help the judge crystallise the value of the pool to be allocated between the disputing couple. Justine Woods is a partner at Cooper Grace Ward and leads the family law team. Having practised exclusively in family law for more than twenty years, Justine has extensive experience in all aspects of family law – children’s arrangements and parenting matters (including surrogacy), property settlement and spousal maintenance issues for both married and de facto couples, binding inancial agreements and their international counterparts, together with child support and child maintenance trusts.

Overwhelmingly, people settle their family law property settlement disputes by agreement – they disclose financial documents (so everyone knows what exists), they jointly instruct valuers to value any disputed items, and then they broker a deal. However, if this process does not produce an agreement, parties will find themselves in court proceedings. The judge also has the power to order a valuer to be appointed. Valuations may be required of assets brought to a relationship many years ago or sold during the marriage. The value of those assets at separation, or at the date of agreement or trial before a judge, will also be relevant and needed as evidence.

Dr. Piers N Plowman Senior Clinical Oncologist/Radiotherapy MA, MD, FRCP, FRCR

Once a valuer is appointed as the single expert, they may receive joint, although not necessarily wholly agreed, instructions, request documents (such as leases, development approvals, shareholder agreements and financials, for example) and should ideally meet with none or both parties so that both parties are confident the valuer has listened to both sides.

Adult and Childhood Cancer. Radiotherapy and Chemotherapy for Cancer. Author of textbook on complications of therapy. Over twenty years experience as Expert Witness for above.

The applicable court rules allow both parties to ask questions of the valuer to clarify the findings in the report following its release and the valuer and the parties are required to confer in the event of a disagreement.

Also specialises in delay to diagnosis.

14 Harmont House 20 Harley Street, London, W1G 9PH Tel: 020 7631 1632 Fax: 020 7323 3487 Email: postmaster@pnplowman.demon.co.uk

If one or both parties remains dissatisfied with the value, they may seek to have another expert give evidence on their behalf. The permission of the court is required to rely on the evidence of another expert and the court does not readily grant leave; dismissing many applications to appoint another expert as ‘report shopping’. The success of these applications depends in part upon whether the competing witnesses have conferred and tried to reach agreement. EXPERT WITNESS JOURNAL

SUMMER 2019

Events The two day CPD course covers: the practicalities of setting up a medico-legal practice; what to expect from instructing parties; the legal procedural rules that govern expert witnesses; successful report writing; preparation of joint statements with opposing experts; meetings with counsel and giving evidence in court.

Inspire MediLaw Inspire MediLawâ&#x20AC;&#x2122;s medico-legal conferences cover a whole range of medical and legal issues relating to clinical negligence. Our Medico-Legal conferences focus on providing medical knowledge for legal professionals with presentations by leading medical experts, lively discussion and debate and the latest case studies. With an interesting balance between medical and legal speakers our APIL CPD accredited conferences will be of interest to both claimant and defendant practitioners.

Expert Familiarisation Training 19 July 2019 - Oxford Moot Court This intensive training is designed specifically for Medico-Legal Experts seeking to learn more about the practicalities of their role. The course will be led Dr Simon Fox QC at Oxford's Moot Court.

Introduction to Inquests 4 June 2019 - Malmaison Oxford This training is designed to provide an overview of the Inquest process. It is aimed at clinicians who have no experience of this area, and includes attending a medical Inquest at the Oxford Coroner's Court.

Delegates will discuss the process of giving evidence, the purpose of cross examination, and how to approach giving evidence with confidence. Each delegate will undergo in-depth examination of their evidence in front of their peers. The role play will be recorded so the group can review the video and feedback together. This exclusive session is for a maximum of 6 delegates.

Places are limited to 12 delegates and will be allocated on a first-come-first-served basis. Sessions on the day will include an explanation of the scope of an Inquest; guidance on writing a factual witness statement for the Coroner; giving evidence at the Inquest; and the possible next steps following a verdict.

Expert Witness Training for Medical Professionals 19 September 2019 - Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals for acting as expert witnesses in clinical negligence litigation.

Summer Medico-Legal Conference (Oxford) 6 June 2019 - Oxford Thames Hotel This exclusive conference is designed to give you the opportunity to pose questions and generate discussion with your peers and senior clinical negligence lawyers about areas of your medico-legal practice where you need support or advice.

The two day CPD course covers: the practicalities of setting up a medico-legal practice; what to expect from instructing parties; the legal procedural rules that govern expert witnesses; successful report writing; preparation of joint statements with opposing experts; meetings with counsel and giving evidence in court.

You will also benefit from practical seminars on preparing for and participating in Conferences with Counsel and Expert Meetings.

Inspire MediLaw, Merchant House 5 East St, Helenâ&#x20AC;&#x2122;s Street, Abingdon, OX14 5EG Phone: 01235 426870 Email: info@inspiremedilaw.co.uk Website: www.inspiremedilaw.co.uk

We will hear the views of HHJ Harris QC on expert evidence presented before him as a Senior Circuit Judge, and Mr Richard Kerr (Neurosurgeon) will share some of his experiences as a medico-legal expert.

RICS

Expert Witness Training for Medical Professionals 17 June 2019 - The Royal College of Physicians, Glasgow Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals for acting as expert witnesses in clinical negligence litigation.

Expert Witness Certificate Mon 19 Aug 2019 - Fri 15 Nov 2019 Time: 09:00 AM - 05:00 PM Venue: RICS, 125 Princes Street, Edinburgh, EH2 4AD CPD: 26 hours formal CPD

Founded on the official RICS Professional Guidance, this blended learning programme will ensure you develop the core competencies needed to be an effective expert witness. Alos Mon 9 Sep 2019 - Fri 6 Dec 2019 Time: 09:00 AM - 05:00 PM Venue: London, London, Venue tbc CPD: 26 hours formal CPD

Expert Witness Training for Medical Professionals 4 July 2019 - Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals for acting as expert witnesses in clinical negligence litigation.

EXPERT WITNESS JOURNAL

Phone: +44 (0)24 7686 8555 UK Training enquiries: +44 (0)24 7686 8584 Email: contactrics@rics.org

SUMMER 2019

Bond Solon

Discussions between Experts This course will provide experts with a comprehensive overview of what these discussions entail, possible pitfalls and the implications if best practice is not followed.

Expert Witness Courses Excellence in Report Writing This course provides expert witnesses with the key skills to produce court compliant reports. Experts will learn how to produce quickly and consistently reports that are both court compliant and will withstand cross-examination.

Concurrent Expert Evidence (Hot-Tubbing) An intensive one-day course, providing civil expert witnesses with the core skills and knowledge to give concurrent expert evidence in court.

Courtroom Skills This one day course will provide expert witnesses with the core skills to effectively present opinion based evidence in court under cross-examination. Cross-Examination Day A follow on day to the Courtroom Skills Training, this course enables expert witnesses to refine and enhance their skills in presenting evidence in court.

Masterclass in Report Writing This masterclass is designed for experts who have already undertaken the Excellence in Report Writing. The course acts as a useful refresher and is designed to enhance your report writing skills to an advanced level.

Civil Law and Procedure This course provides civil court experts with a comprehensive understanding of their requirements of CPR Part 35, Practice Direction 35, the Protocol for the Instruction of Experts and practice direction on pre-action conduct.

Masterclass in Courtroom Skills The advanced masterclass is designed for expert witnesses who have already undertaken the Courtroom Skills. Experts should consider this course every 2-3 years to refresh and enhance their skills in giving evidence.

Criminal Law and Procedure This course provides criminal court expert witnesses with a comprehensive understanding of their requirements under Part 33 of the Criminal Procedure Rules.

GDPR for Expert Witnesses Toolkit This toolkit will help you understand what the General Data Protection Regulations means to you as an expert witness and provide you with tools you are most likely to need to comply with the GDPR.

Family Law and Procedure This course provides family court expert witnesses with a comprehensive understanding of their requirements under Part 25 and 25A.

To secure your place, either book online or call us on 020 7549 2549 or visit; www.bondsolon.com

Mr Kim Hakin FRCS, FRCOphth

INFORMED, ASSURED, INSPIRED

Mr Kim Hakin is a Consultant Ophthalmic Surgeon providing ophthalmic services (NHS & Private.) He undertakes medicolegal work at: Optegra Eye Hospital Central London, 25 Queen Anne St, W1G 9HT and Nuffield Health Taunton Hospital, Taunton TA2 6AN

Inspire MediLaw is a provider of first class conferences, accredited training and CPD events in medicine and law. We provide knowledge for medical experts who need to understand the law and for lawyers who need to understand the medicine. Inspire MediLaw is passionate about bringing medical and legal professionals together to learn, shape best practice and share ideas.

He can deal with most ophthalmological issues with special interests in cataract surgery, ocular trauma, eyelid & lacrimal surgery including cosmetic eyelid surgery, facial laser surgery.

Benefits of Inspire Expert Witness Training With a wealth of experience in the legal and healthcare sectors, we are uniquely placed to offer this RSM accredited expert witness training and follow up, carefully tailored to your medico-legal requirements.

Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is a member of the Expert Witness Institute, and formerly advisor to Nuffield Hospitals and the Healthcare Commission. He regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Resolution, as well as many solicitors' firms and legal agencies.

This includes: v Interactive training sessions with experienced clinical negligence v professionals; v GMC and GDPR advice sessions; v Comprehensive course materials for easy future reference; v Marketing of your expertise to our network of lawyers; v Advice on presenting your CV; v Networking and speaking opportunities; v Ongoing coaching and mentoring by our experienced panel of lawyers and medical experts; v CPD accreditation.

Tel: 01823 250614 Mob 07887 651551 Email: kimhakin@aol.com, or kimhakin1@gmail.com Web: www.kimhakin.com

To find out more about Inspire MediLaw, upcoming conferences for expert witnesses, and other course dates for 2019 visit their website at www.inspiremedilaw.co.uk or contact Caren Scott or Vikki Forrester on 01235 426870 or email: info@inspiremedilaw.co.uk.

All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm Taunton, TA2 6AN, or by email.

EXPERT WITNESS JOURNAL

SUMMER 2019

Cambridge Heart and Lung Research Institute Receives Major Funding Boost Chris Skidmore, Minister for Universities, Science, Research and Innovation, announced a £30 million award to the University of Cambridge to support the new Cambridge Heart and Lung Research Institute (HLRI).

institute by the British Heart Foundation (BHF). Further funding will be provided by the University and Royal Papworth Hospital, and the Wolfson Foundation. The BHF award, which contributes to the capital cost of the building, is one of the charity’s largest ever strategic award. The charity has also committed an additional £6m in funding for the BHF Cambridge Centre for Cardiovascular Research Excellence, which will be housed in the institute.

The Institute will draw together the highest concentration of heart and lung researchers from academia, healthcare and industry in Europe. It has set an ambitious five year target to demonstrate proof-of-concept for at least ten new drugs or diagnostic approaches in heart and lung diseases.

Professor Sir Nilesh Samani, Medical Director at the British Heart Foundation, said: “Through this funding we will help create a fantastic centre that will have a key role in driving forward our ambitious programme of heart and circulatory research. By bringing together world-leading scientists it will enable exciting opportunities for collaboration between researchers from different disciplines. And it will also accelerate the transformation of discoveries in the laboratory to treatments available at patients’ bedside.

The HLRI will be situated next to the Royal Papworth Hospital, which was officially opened by HM the Queen on July 9th, and forms part of the Cambridge Biomedical Campus, the centrepiece of the largest biotech cluster outside the United States. It will be home to over 380 scientists and state-of-theart laboratories in genomics, population sciences, research into cellular mechanisms of disease and translational science. It will also include a special ten bed facility where the first-in-patient studies of new treatments can be conducted.

The Cystic Fibrosis Trust has also committed to raise up to £5million to fund the Cystic Fibrosis Innovation Hub, which launched last year and will transfer to the new building once it has been completed. Both AstraZeneca and GlaxoSmithKline will also embed integrated research hubs in the Institute to maximise translational impact.

The award is one of 11 announced from flagship capital investment scheme the UK Research Partnership Investment Fund, totalling over £670m of new investment into UK research and innovation. It complements £10million of funding committed to the

Dr Duncan Dymond MD FRCP FACC FESC

Consultant Cardiologist

Medical-legal Experts

Dr Duncan S Dymond has been a consultant cardiologist at St Bartholomew's Hospital, now a part of Barts Health NHS Trust since 1987.

McCollum Consultants is a unique collaboration of medico-legal experts offering medico-legal advice in the following disciplines: Accident & Emergency Medicine Anaesthesia and Intensive Care Medicine Cancer & Oncology (all aspects) Cardiology - Cardiothoracic Surgery ENT Surgery Diabetes and the Diabetic Foot General Surgery (all aspects) Haematology Microbiology Nephrology Neurology Neuro Surgery Nursing Ophthalmology Orthopaedic Surgery (all aspects) Podiatric Surgery Psychiatry Rehabilitation Medicine Respiratory & Lung Transplant Vascular & Arterial Surgery Vascular Interventional Radiology A unique collaboration of first-class clinical experts...

He has been undertaking expert witness and medicolegal work for more than 5 years and has completed his Cardiff University Bond Solon expert Witness course. Dr Dymond currently completes 1-2 medicolegal reports per week, for personal injury and medical negligence, with roughly a 60/40% split claimant/defendant. He has also completed expert witness work for the General Medical Council, the Medical Defence Union and the Crown Prosecution Service as well as accepting private instructions directly for solicitors. He has also provided mediolegal opinions for cases in Singapore.

T: 0207 079 4260 E: medicolegal@harleycardiology.com secretary@drduncandymond.com W: www.drduncandymond.com

Area of work: Nationwide and International Tel: 0161 266 1074 Email: info@McCollumConsultants.com DX Number: 26354 Timperley Website: www.McCollumConsultants.com McCollum Consultants Limited, 3000 Aviator Way, Manchester M23 9LT

EXPERT WITNESS JOURNAL

34 Circus Road, St John's Wood, London, NW8 9SG

SUMMER 2019

Allegations of Dishonesty: Insight Without Admission? by Graeme Watson, Partner and Bethany Dodds Associate at Clyde and Co. healthcare department If a doctor denies dishonesty, in the teeth of a Medical Practitioners Tribunal Service (MPTS) finding to the contrary, can they ever demonstrate that they are now fit to practise?

This is a useful reminder of the factors which the court will take into account in considering whether a doctor shows the necessary insight to demonstrate their fitness to practise is not impaired by reason of dishonesty.

In Natalie Blakely v General Medical Council [2019] EWHC 905 (Admin), the High Court considered whether insight can be demonstrated in the absence of an admission of dishonesty. In refusing the doctor's appeal against the extension of her suspension at a review hearing, the court highlighted the distinction between admitting guilt of dishonest conduct and showing insight.

But more than that, the court highlighted that the distinction between admission and insight must be borne in mind by legal advisors and members of the tribunal. A bland statement by a doctor that they accept the tribunal findings may not be sufficient to demonstrate insight â&#x20AC;&#x201C; particularly where, as in this case, that statement is superseded by oral evidence to the contrary. Doctors and legal advisors must be prepared for insight to be tested at a review hearing to the same extent as it is assessed during the substantive hearing.

Dr Blakely ran a clinic specialising in cosmetic treatments. She suspected that another doctor at the clinic was undercharging for treatments. She hired a firm of private detectives to record his consultations covertly. When the surveillance was discovered Dr Blakely told patients that she had acted on the advice of the General Medical Council and Care Quality Commission.

And if lawyers representing doctors allow them to admit dishonesty in writing when we know their evidence will be the opposite â&#x20AC;&#x201C; what insight are we showing?

At a hearing in May 2018, Dr Blakely admitted arranging the surveillance recordings but denied dishonesty. The MPTS found that while Dr Blakely had contacted the GMC and CQC before doing so, she had neither sought nor taken their advice and had therefore dishonestly misled patients. The tribunal found that her fitness to practise was impaired and she was suspended for six months.

Professor Habibi I am a Paediatric Intensivist and Respiratory Physician specialising in serious illnesses such as epilepsy, pneumonia, meningitis and septicaemia and conditions including, asthma, allergies, bronchiolitis and other chest conditions. I am also a specialist dealing withsleep apnoea and other sleep problems, for children of all ages.

At a review hearing in November 2018, Dr Blakely maintained that she had not acted dishonestly. The tribunal considered that her fitness to practise remained impaired and suspended her for an additional nine months. Dr Blakely appealed on the basis that this was an unfair decision made simply because she maintained that she had not acted dishonestly.

25 years experience. Over 900 reports. 60:40 Claimant: Defendant UK Register of Expert Witnesses. Family Justice Council Member My work in Paediatric Intensive Care has lead to a special interest in end of life care, decision-making and conflict resolution between health care professionals and families. I have assisted the Courts in a number of high profile cases: Glass v UK (Application No 61827/00) [2004] 1 FCR 553 Charlotte Wyatt October 2004 Charlotte Wyatt April 2005 Charlotte Wyatt October 2005

The court held that the tribunal was entitled to determine that Dr Blakely's fitness to practise remained impaired and to conclude that a further suspension was required to enable her to gain sufficient insight into why her conduct was unacceptable. The court highlighted the subtle difference between ensuring a doctor understands their conduct is unacceptable, and forcing a doctor to admit guilt for something he or she does not accept doing. The key consideration is that the doctor must be able to reassure the tribunal that they have sufficient insight to understand why the conduct was unacceptable and cannot be repeated. EXPERT WITNESS JOURNAL

My Private Practice is based at 84 Harley Street in London, 243 Great Portland Street in London and New Malden Diagnostic Centre in Surrey. I am accessible, available and aim to provide the highest standard of consultation and care for children. I provide medical reports promptly and communicate properly with others involved in my patient's care. Harley Street Private Practice - 4th Floor Room 10, 84 Harley St, Marylebone, London W1G 7HW Harley Street Clinic - 35 Weymouth Street, London, W1G 8BJ The Portland Hospital Out Patient Centre - Great Portland Street, London, W1W 5AH The New Malden Diagnostic Centre - 171 Clarence Avenue, Surrey, KT3 3TX

SUMMER 2019

The Single Joint Expert by Alec Samuels Words: SJE - expertise - conflicts - solicitors Abstract: The selection and instruction of the SJE - the risks - the fee - conflicts of interest - change of opinion - constraints on SJE - the role of the solicitor Today the use of the single joint expert SJE is becoming increasingly common because of the difficulty of obtaining legal aid, the need to contain the costs of litigation, and encouragement by the judge who often likes the system as it can smooth the progress of the case. The SJE may be of such high quality, standing and reputation that it is very unlikely that anybody would wish to challenge his opinion. In nearly half the cases in which an expert appears he is an SJE. The SJE is likely to narrow the issues, because he is the sole determinant of the opinion upon the issues (although of course the parties will both give instructions). The NHS defendant is anxious to save money. The SJE is particularly suitable in the smaller value cases, where the issue is essentially a straightforward one of fact, and where the issue is a valuation of property or assessment of quantum for damages.

from the lay client. Model terms are widely used, but need to be used with caution because circumstances can differ so much from case to case. Both parties instructing the SJE are jointly and severally liable for the fee. The judge can order the fee to be paid into court. In the light of the experience and qualification of the expert and the time needed to do a proper job, is the modest fee available deterring many experts from taking on work. Selection Having agreed upon the principle the parties can usually agree upon an SJE acceptable to both. If this cannot be done then the judge may select the SJE or more usually direct the method to be used to identify a suitable SJE. Conflicting instructions The SJE may be faced with conflicting instructions. This may be no problem, the expert opinion could proceed on two hypotheses. But the SJE may feel that he needs more and more relevant material, and he should refer back to the parties. The basic facts may be unclear, as opposed to different emphases or inferences. These preliminary problems should be capable of early resolution. If necessary the SJE may always seek advice and instruction from the court.

However, there are possible disadvantages and risks for the parties which may make them hesitant or reluctant or unwilling to agree to a SJE. Although every expert is independent and impartial and transparent and conscious of his duty to the court, the SJE is even more so. The judge may gently question him first. The judge may not welcome too much challenge, as the SJE was agreed by both parties. A party can â&#x20AC;&#x153;examineâ&#x20AC;? the SJE, his witness, but must act with considerable restraint. Knowing that he is not going to have to face another expert the SJE may become a little arrogant or over-confident or careless in his analysis and expression of opinion. By virtue of his role the opinion of the SJE is likely to be highly influential in the case. Some parties fear that he may become dominant and in effect remove the adversarial element and virtually decide the case. However, the judge will be sufficiently robust to act judicially, and to keep the SJE within his proper role.

Timing Timing employing the SJE and the giving of instructions is important. In principle the earlier the SJE is on the scene the better, for the identification of the real issues; and the SJE needs time to do the necessary work. However there is little point in involving the SJE before both parties have got their evidence and witness statements together and a claim and a defence have emerged. Sometimes parties seek some sort of preliminary opinion, so as to sense how things might go, but this is rarely very illuminating, and anyway the expert is usually rightly aware of the limitations of a mere cursory opinion and resistant to the practice. Simms v Birmingham Health Authority [2001] Lloyds Med Rep 382.

The fee The SJE should state his fee, negotiate that fee if necessary, before accepting instructions, and require payment up front or in any event not later than the release of the report. The fee should never depend upon the outcome of the case, e.g. where a claimant is suing under a conditional fee arrangement, or where the solicitor claims that he is not yet in funds EXPERT WITNESS JOURNAL

Conflict of interest The SJE must be particularly careful to avoid any possible conflict of interest. He may have had some connection or involvement with one or other of the 11

SUMMER 2019

parties in the past. This must be declared, or alternatively the SJE should withdraw. Though the mere previous professional contact between a party and the SJE does not in itself disentitle the SJE to act again. W v Oldham MBC [2005] EWCA Civ 1247.

Institutes, and accreditation is gradually coming in. In future the legal regulation may be expected to be tightened. The Forensic Science Regulator is expected to introduce tighter rules in the future. Change of opinion The SJE is rightly expected to be thorough, measured, consistent and scientific in giving his opinion. Nonetheless it may be perfectly proper and professional to change his opinion, if new relevant material comes to light. Inflexibility would then be a mistake. Any change of opinion and change in the report should be immediately referred to the parties and the court. The SJE is sometimes asked by the solicitor to change his opinion. This pressure must be resisted, unless some very good reason is given by the solicitor, such as reference to very relevant literature or a patently obvious error in the report.

Area of expertise In this age of austerity and the pressure on costs there is pressure to exploit to the full such expert as can be instructed. The consequence is that the SJE may be asked a whole range of questions beyond his real expertise. Although he may wish to be helpful, and he may be a person of considerable breadth of experience, he should strongly resist the temptation to engage. He must clearly draw the line. Otherwise he may be tempted by an advocate to pontificate beyond his expertise and then be convincingly and painfully exposed and discredited. If expert evidence is required in another field of expertise then the SJE should unequivocally say so.

The procedure All concerned must scrupulously follow the proper procedure. Being instructed by two firms of solicitors the SJE has two firms to deal with, an added possible complication. The SJE should only meet the parties jointly, not separately, unless the parties agree or a judge so orders. The SJE must submit his clear, concise and unambiguous report simultaneously to the parties and to the court. Peet v Mid-Kent Healthcare Trust [2001] EWCA Civ 1703, [2002] 3 All ER 688, clear exposition by Lord Woolf LCJ and Brown and Buxton LJJ.

Additional expert If a party is for any reason dissatisfied with the opinion of the SJE there is nothing to stop him instructing his own expert. But the judge is unlikely to allow the report of the new expert to be given in evidence, and the costs will be irrecoverable from the other side in any event. Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392. However, the advocate for that party may find material in the new expert report that he may be able to use in challenging the SJE. In exceptional cases the judge may allow a new report to be adduced in evidence by a party, depending upon the value of the claim and the expedition and openness displayed Layland v Fairview New Homes [2002] EWHC 1350. For example, there may be a big dispute over the basis for the calculation of damages, whether the basis should be fulltime or part-time care. There may be good plausible arguable reasons for challenging the opinion of the SJE, such as the nature, number, complexity and importance of the issues, the amount at stake; and there may even be the real possibility of an error by the SJE. Daniels v Walker (Practice Note) [2000] 1 WLR 1382, CA. Cosgrove v Pattison [2001] CPLR 177.

Solicitors usually like to have personal contact with the SJE, especially if the case looks likely to be going to trial, so as to assess how the SJE is likely to perform in court, and how the advocates should prepare. Clear and compelling SJE report The report of the SJE may be so clear and compelling that it may be allowed to stand unchallenged. Or if a series of carefully constructed questions are submitted to the SJE and he gives a series of clear and compelling answers it may not be necessary to call him at the trial; or indeed a settlement may be acilitated.

Incompetent SJE The incompetent SJE or the SJE who does not follow the directions of the judge is a rare phenomenon, but should this happen the judge may always dismiss the SJE Kranidiotes v Paschali [2001] EWCA Civ 357. The negligent SJE, like any other witness, is potentially liable for breach of duty, e.g. signing an expert report under pressure knowing it to be incorrect Jones v Kaney [2001] UKSC 13, [2011] 2 AC 398, paras 38-62 and paras 116-126.

Not an advocate The SJE acts upon the instructions, carries out his investigation and analysis, makes his findings, gives his opinion. He does not become an advocate. He makes a scientific report. With integrity he does the best he can as an expert. But he is not using the report as a means of persuasion in the court. How the report is received by the lawyers is of no consequence to him. The expert has no interest in the outcome. He is not trying to assist a party to win. He is assisting the court. He is a scientist or engineer or other such professional, not a lawyer.

Although most experts subscribe to high ethical and professional standards, and are of course obliged to observe the court procedure rules when instructed in litigation, the profession of experts is still largely unregulated. Most experts belong to a professional organisation, such as the Expert Academies and

EXPERT WITNESS JOURNAL

The ultimate issue The role of the SJE, as with any expert, is to find and to analyse the facts or to state an hypothesis and to draw a scientific opinion accordingly. What he must

SUMMER 2019

not do is to pass judgment on the ultimate issue, namely liability. It is often not easy to avoid the trap of crossing the line. The SJE must not in a criminal case say that D is guilty, that is matter for the court; nor in a civil case that D was at fault or negligent, or must pay £x.

its imposed and nowadays strictly enforced by the court. Denton v White [2014] EWCA Civ 906, [2014] 1 WLR 3926. He must make a real effort to acquire an intelligent understanding of the scientific medical or technical issues in the case. He should ensure that a qualified solicitor of sufficient standing and experience supervises the more junior staff doing the mundane work for and with the SJE.

Solicitors and Experts, Experts and Solicitors Solicitors criticise experts, and experts criticise solicitors. This sort of collective hostility is unworthy of both. Each have a different but complementary role to play. Each should seek to understand the role of the other, and seek intelligently and sympathetically to co-operate with the other. The solicitor must give clear and ordered and sensible instructions. The alleged facts should be set out. The relevant evidence given. No large unsorted bundle should be just “dumped” on the SJE. All questions should be relevant, pertinent and unambiguous. There should be no “please tell us what you think” approach. So far as possible instructions should be agreed with the other side. The solicitor may even tactfully and discreetly remind the SJE of what a good report looks like: A clear statement of the instructions received; the facts on which the report is based, and the analysis; the sources; the reasons for the opinion; an indication of opposing views and the reasons for any rejection; a clear summary, both at the beginning and the end of the report. The solicitor must explain what the legal procedure requires of the SJE. Is the SJE fully acquainted with the rules? He must keep the SJE fully and constantly informed of the progress of events, and especially the judicial orders, especially time lim-

Litigants in person An increasingly large feature in litigation today is the litigant in person LIP, because of the restricted availability of legal aid. Usually the LIP has a limited understanding of court procedure, and needs a lot of support. The approached expert should be extremely reluctant to accept instructions from an LIP, because a host of difficulties could arise. Advise that a solicitor should be instructed, and then instructions to act as a SJE will be accepted. Bibliography Civil Procedure Rules 35. Guidance for the instruction of experts in civil claims, Civil Justice Council, August 2014. Do single joint experts work?, Thayne Forbes, Law Society Gazette, 29 April 2013. Experts in the Civil Courts, Louis Blom-Cooper, Expert Witness Institute, 2006. Expert Evidence, Halsbury’s Laws, vol 11, paras 835-863, pp 625-653. © Alec Samuels, 2019

Call us on 0203 962 2238 when you need Medico Legal Psychiatric and Psychological face to face assessments and reports. Our panel of experts specialise in mental health issues. They are all senior Consultant Psychiatrists and Psychologists and have particular expertise in assessing · ADHD · Bipolar · Anxiety · PTSD · Trauma · Depression · Personality Disorders · OCD · Sleep disorders · Alcohol, drugs and sex addiction · Medical Negligence. High Quality Reports, Turned Around Fast by Expert Practicing Clinicians. We have 22 Clinics in the UK. Our Clinicians are willing to travel. Our panel of over 200 mental health experts nationwide is an approved supplier to HM Prison Services and our Consultants are Section 12 approved. We regularly act for leading chambers and law ﬁrms, as well as the Home Ofﬁce. Our clinicians pride themselves in preparing thoroughly for court and we have a proven track record of successfully standing as expert witnesses. We cover the following areas: · Forensic and Criminal law · Asylum and Immigration

· Employment law · Civil and Personal Injury

· Mental Capacity Assessment

What Medico-Legal Services Can We Provide? · Undertake psychiatric assessments for a variety of issues including many mental health diagnoses · Undertake forensic psychiatric assessments (we are able to visit Prisons and Residential Centres) · Advise on the appropriateness of medical treatment

· Provide treatment recommendations · Provide second opinions · Conduct psychiatric risk assessments

Why Choose Clinical Partners? Medico legal reports can be the most important piece of evidence for your case. Poor quality reports can result in: · Undervaluation of damages · Time wasted seeking clariﬁcation · · Weakening of overall case Choosing Clinical Partners ensures that these problems will not happen for you. We only use experienced Clinicians who have successful track records of producing high quality medico legal reports

All correspondence to:- Clinical Partners, Lister House, 11 Wimpole Street, London, W1G 9ST Contact Name; Caroline Scott Head of Triage Tel no 0203 962 2238 Email:- help@clinical-partners.co.uk - caroline@clinical-partners.co.uk Website: www.clinical-partners.co.uk Consulting rooms in: Birmingham - Bournemouth - Brighton - Bristol - Cambridge - Cardiff - Edinburgh - Exeter - Farnham - Glasgow Leeds - Leicester - Liverpool - London - Manchester - Newcastle - Nottingham - Oxford - Plymouth - Sheffield - Southampton

EXPERT WITNESS JOURNAL

SUMMER 2019

Professor Lorna Dawson Honoured with Expert Witness 2019 Award Professor Lorna Dawson, Head of Soil Forensics at the James Hutton Institute and SEFARI Advisor on the Scottish Government‘s Strategic Research Programme 2016-2021, has been recognised with an Expert Witness Award 2019 by specialist magazine Lawyer Monthly, coinciding with her induction as a Fellow of the Royal Society of Edinburgh (FRSE). The Expert Witness Award acknowledges more than 15 years of Lorna's work as an expert witness, regularly working with police, agencies, lawyers, defence and prosecuting courts, tribunals and official enquiries, helping put some of the UK’s most evil killers behind bars by using forensic geology techniques to unearth vital hidden clues.

scene sampling and advice. Using analytical techniques and a strategy combining organic and inorganic characterisation, the team examines trace evidence, compares samples, provide discrimination of sample characteristics and provides expert opinion evidence. Environments can also be characterised for interpretation and evaluation, and Geographical Information Systems (GIS) and Virtual Reality (VR) skills are also available in mapping areas for search and sampling, using the wide-ranging databases available at the Institute. For more information, visit James Hutton Limited's Soil Forensics dedicated page at www.huttonltd.com/services/soil-forensics.

Professor Dawson advises the UK National Crime Agency on soil trace evidence provision and has assisted in several high-profile, international cases including murder, rape, contaminated land, food adulteration, food authenticity and food provenance. The important role soil can play in forensic investigations has been highlighted by the involvement of the Institute’s soil forensic team in high-profile cases such as the World’s End murders, the Karen Buckley case and the searches for Moira Anderson and toddler Ben Needham.

Professor Lorna Dawson CBE, FRSE, FRSA, FISS, CSci Head of Soil Forensic Science The James Hutton Institute, Aberdeen, AB15 8QH

Lorna was awarded a Pride of Britain Special Recognition Award in 2017 for her contribution to the development of evidence and communication within the criminal justice system, and last year she was made a Commander of the Order of the British Empire for services to soil and forensic science in the Queen's Birthday Honours list. Her expertise has also lent itself to the literary world and Lorna regularly consults for crime authors including Ann Cleeves, author of the Vera and Shetland crime novel series.

SEFARI Advisor- SEFARI Gateway, Scot Gov Professor, RGU Mobile: 07815 178093 Lab direct dial: 01224 395044 Reception: 01224 395000

Professor Colin Campbell, Chief Executive of the James Hutton Institute, commented: "We are all very proud of Lorna and her team who have worked tirelessly to make soil forensics useful in this way and help so many people as well as the ends of justice.

Mr Jack Lancer

Consultant Ear, Nose & Throat Surgeon MB, ChB, LRCP, MRCS, FRCS(Otol), DLO My areas of surgical expertise include all aspects of middle ear disease, especially stapedectomy and in facial plastic surgery especially rhinoplasty. I also deal with general adult and paediatric ENT problems. I have issued many medico-legal reports over a 25 year period, with the majority relating to cases of noise induced hearing loss, with the remainder dealing with personal injury and negligence claims within my area of expertise, but including all aspects of general ENT practice.

"Her expertise and that of the Institute has been built on solid foundations of our soil science using resources such as the National Soils Database and Archive funded by the Scottish Government and she and the team have been determined and talented in developing new methods and approaches suitable for forensic applications."

Contact: Park Hill Hospital Thorne Road, Doncaster, DN2 5TH Tel: 01777 817 160 Email: jacklancer88@gmail.com Fax:01777 817 158

The team led by Professor Dawson delivers a range of complementary characterisations in forensic casework. Specialisms include soil DNA, plant DNA, palynology, volatile organic compounds, mineralogy, foodstuffs and mycology, as well as outdoor crime EXPERT WITNESS JOURNAL

SUMMER 2019

Medico-Legal Project Management by J W Rodney Peyton, OBE Medico-Legal project management is the application of project management principles in practices to enhance the delivery of medico-legal services. One of the biggest facets is risk management, remembering that any risk event may positively or negatively impact the delivery of the legal process.

One of the ways to streamline medico-legal practice, particularly in regard to medical negligence/malpractice, is to have a preliminary screening of the case as MDU figures for 2018 show that less than one in six actions in medical negligence actually succeed with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

In general project management there is the PERIL (Project Evaluation Risk Information Library) database. At Peyton Medico-Legal Services we have worked with legal groups to produce a similar database of key medico-legal risks which include:• Scope of practice • Legal Project Management Regulatory Compliance • Reputation Insurance Coverage • Client expectation • Time management • Cost management • Internal expertise and capabilities • External expert advisers

Initial screening is therefore essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to Court with no real chance of success. This is stressful for the client, their legal advisor and indeed for the medical personnel involved. Find out how we at Peyton Medico-Legal can help you project manage the risks associated with your practice. Contact us now on 028 8772 4177 or email rpeyton@rpeyton.com.

We utilise this database when helping lawyers manage positive or negative risk to make their practice faster, more effective and more efficient, benefiting their clients and their own bottom line.

Mr J W Rodney Peyton OBE TD Consultant in Trauma and General Surgery BSc(Hons) MSc(Educ) MD FRCS(Eng, Ed, Glasg & I) FRCP(Lond) PGDL

Put Mr Peyton’s 30+ years and 70,000+ cases to work for you in order to significantly improve chances of favourable outcomes Mr Rodney Peyton is internationally highly regarded as an accomplished consultant trauma surgeon, author, speaker and trainer with a longstanding commitment to surgical education. Mr Peyton has been involved in medico-legal reporting and court appearances as an expert witness for 30+ years and is a Foundation Member of the Expert Witness Institute. Over the last five years Mr Peyton has seen a minimum of 1,000 cases per annum including personal injury, RSI and medical negligence. • • • • •

Medico Legal Services – expert opinion provided in more than 70,000 medico legal cases Medical Negligence – independent opinion provided in cases in the UK, Ireland and internationally Reviews to promote improvement of clinical practice Facilitative Mediator in disputes involving medical negligence and Private Finance Initiatives Author of “Whiplash, The Cervical Spine in Medico Legal Practice”, “Facilitative Mediation” and Co-author of the “Cambridge Textbook of Accident and Emergency Medicine.”

Contact Mr Peyton today to assist your clients, legal advisors and the Courts to gain a clearer understanding of the unique aspects of medical evidence in individual cases, so that they can make better informed decisions.’

Contact Details: Beechlyn Court, Ballynorthland Park, Dungannon, Northern Ireland BT71 6DY Tel: +44 (0) 28 8772 4177 Email: rpeyton@rpeyton.com - Website: www.jwrodneypeyton.com

EXPERT WITNESS JOURNAL

SUMMER 2019

There's the Law and then there's Reality by Antony Fanshawe Why Commercial advice and expert evidence can help shorten disputes and save you money

Part of my job is to accelerate the understanding of the evidence- from experienced commercial and accounting perspectives, so that both sides can better understand the risks implicit in continuing the litigation for longer than necessary, and what if anything they might get out of it, as early as possible.

It is generally acknowledged that litigation is hell. The only way out is to dispose of it as soon and as cost effectively as possible. The trouble is that it’s like quicksand; it drags you in, and there is a point of no return, where it seems cheaper to continue in the hope of winning, than to concede and pay up (and up and up…).

I think that the advice of people like me can shorten the process, improve the outcome and save costs (by reducing the time taken to reach a resolution).

And like Hell, it goes on for all eternity, or feels like it.

The second point was brought home to me in a case where funds had been transferred to a company outside the main group shortly before the group went into administration, and my clients faced a claim for restitution after the group became insolvent.

The only upside is that it’s the same for both sides. It may seem counter-intuitive that I should advocate that you hire someone like me who is not a lawyer, and will be an additional cost, to supplement your already hugely well qualified and hugely expensive legal team.

I demonstrated that almost all of the funds had been spent on maintaining the operations of the Group and not diverted elsewhere. On the face of it the claim against my clients was as good, legally, as it gets, but my clients were able to negotiate down the offer of settlement that had been made before my report (and rejected), in large part, Counsel told me, due to the strategic impact of my report- the opponents knew that they faced an evidential uphill struggle and settled early to avoid a bruising court battle.

I submit that there are two reasons: 1. You, and the other side can get an earlier, and fuller understanding of the evidence; 2. You will make a show of strength in negotiation. In my experience, the first iteration of the evidence, and the legal opinion which is based on that evidence, rarely bears much resemblance to the position at the end of the litigation. As the process of discovery and the interlocutory sparring continues, the facts of the case can subtly (and sometimes not so subtly) change, and with them the legal advice, and the chances of success.

Call Antony Fanshawe on 07979 103275, to open discussions.

Mr Philip Coleridge Smith Reader in Surgery, UCL Medical School DM MA BM FRCS Areas of expertise; Peripheral vascular disease, venous disease including varicose veins, deep vein thrombosis, post-thrombotic limbs, venous ulcers. Ultrasound examination of the peripheral vascular system, surgical treatment of vein problems, laser treatment and radiofrequency ablation of vein problems. Membership, Fellow Royal College of Surgeons Training, Oxford University Medical School Contact Details Tel: 0870 609 2389 Mobile: 07850 232525 Fax: 0872 111 7042 Email: p.coleridgesmith@adsumhealthcare.co.uk Website: http://www.ucl.ac.uk/~rehk999/ Address British Vein Institute 24-28 The Broadway, Amersham HP7 0HP

EXPERT WITNESS JOURNAL

SUMMER 2019

The Benefits of instructing Experts through a Consultancy Background Somek & Associates is experienced in providing Expert Witnesses for clinical negligence and personal injury litigation, but also in other areas of dispute involving health or disability issues. This consultancy focuses on quality over quantity, and is passionate about providing a comprehensive and professional service to its clients – and to its experts. As a medicolegal consultancy, it is not simply a “database of experts”. Most importantly Somek & Associates’ experts are recruited carefully and then trained to understand their role as expert witnesses, and their obligations under the relevant procedure rules.

ensure that the integrity of the expert witness is embodied in the work of the associates and company as a whole. With over 200 Healthcare Professional experts including; care experts/occupational therapists, nurses, midwives, physiotherapists, speech and language therapists and more recent additions, including a podiatrist, dietician and prosthetic expert, there is excellent capacity to meet client needs in a timely fashion. Somek & Associates knows that it is crucial to instruct experts with relevant experience to fully understand the clinical issues in the case and be able to undertake a professional and credible analysis, in addition to understanding the relevant legal principles and tests.

Historically, there were problems with experts who were regarded as "guns for hire". A party bringing a claim would instruct medical and other experts who were known to write reports that would favour their client’s case. Equally Defendant firms would use medical experts who were favourable to them. Such practice exacerbated the adversarial nature of cases, increased costs and frustrated the process of justice. As a result of these and other concerns about the process of litigation, the Woolf Reforms were implemented 20 years ago, in April 1999, with key important changes to the Civil Procedure Rules (CPR) with a primary objective being that this new procedural code has an “overriding objective of enabling the court to deal with cases justly.” CPR rule 1.1(1)

Importantly all of their experts continue to undertake clinical practice either in a statutory or independent setting and many care experts are practicing case managers. Additionally, there is a broad geographical base with experts located in all countries of the UK and throughout England. Quality Assurance & Training Whilst Somek & Associates’ experts are independent in terms of their reports and their case work, they are supported in their medico-legal development by the company, not only in terms of primary training and post case conclusion reflection, but also by encouraging regular expert witness CPD. This has resulted in a large contingent of sought-after experts, praised for their comprehensive, robustly-argued, and well-structured reports that adhere to relevant legal tests and principles.

The CPR (Part 35) also sets out the obligations affecting the use and behaviour of expert witnesses. The most important of these changes was undoubtedly the explicit specification that an “expert witness’ duty is to the court and not to those instructing him”. (CPR 35.3)

Jessica Thurston, Chief Operating Officer for Somek & Associates is predominantly responsible for setting and maintaining standards, developing and running the training programme and quality assurance team. The comprehensive training, in conjunction with medico-legal lawyers, has been developed to enable their “experts” to become “expert witnesses” covering topics from The Role of the Expert Witness, Medico-Legal Report Writing Skills, Expert Meetings and Joint Statements, to Courtroom skills. Somek & Associates also works in conjunction with leading expert witness training organisations including Bond Solon & Professional Solutions, and offer regular in - house courses and an annual conference with specialist speakers including solicitors and barristers.

Expert Witnesses Somek & Associates is proud to promote its portfolio of almost equal instructions from Claimants and Defendants. Its aim is to ensure it is always providing highly skilled and experienced expert witnesses, who are balanced and robust in their approach. With a rigorous recruitment process, extensive training, and a dedicated team of staff to continually quality assure and strive for the best, Somek & Associates can ensure they consistently deliver a high level of service for their clients, and most importantly, for the court. Somek and Associates was set up in 1997 by Alison Somek, CEO of Somek and Associates who had previously worked in the National Health Service for over 20 years, as an occupational therapist / care expert. Alison has seen the medico–legal environment change dramatically over this period, but has always been passionate about professionalism and independence in her role as an expert witness, continuing to EXPERT WITNESS JOURNAL

Jessica manages the Quality Assurance team who are all experienced clinicians and experienced expert witnesses from a range of professional backgrounds, 17

SUMMER 2019

including occupational therapy, nursing, midwifery and physiotherapy, and whose aim it is to ensure reports are quality assessed and associates are supported, mainly through a system of webinars that are pertinent to the various aspects of casework.

confident they have a sound knowledge and understanding of the clinical aspects of the case and can advise on the most appropriate expert from the pool of 200+ associates. Case files are then managed by a team of case handlers to ensure coordination consistency.

All their experts are allocated an Associate Trainer who is an experienced expert witness. The role of the Associate Trainer is to provide quality assurance and help develop new experts in understanding aspects of the medico-legal process and the expert witness role. Quality assurance is available for all experts when required and they have a comprehensive report evaluation system for experts and value client feedback.

Reports A range of report types to suit different situations, client and case needs, and funds are available. Reports can be provided for litigation and will be fully CPR compliant, or for advisory purposes. Report structures have been carefully designed by an experienced team of expert witnesses to aid clarity and logical process, taking in account client and barrister feedback. All reports are well written and presented, are relevant to the complexity and size of the case, are clearly structured with summarised conclusions and costings, meet CPR requirements (where appropriate), and meet agreed deadlines.

Somek & Associates is passionate about the integrity of the expert witness role and maintaining independence and objectivity to underpin credibility of the expert evidence.

Relationships with Clients Somek & associate truly value their relationships with their clients. Yvonne Lane, their dedicated Client Relationship Manager, is available to meet with solicitors to discuss their individual case needs, including providing fee earners with presentations and training sessions on a range of topics, and receiving feedback on services provided.

Quality Service But it’s not just about the expert; other aspects of the service are also key to meeting clients’ needs and this is achieved through a dedicated team, who work tirelessly behind the scenes to make sure they continue to assist clients. The clinical business management team, who deal with all case enquiries and instructions, comprises of experienced clinicians and expert witnesses, headed up by Occupational Therapist and expert witness Elise Warner. The team know the business of the expert witness role, so solicitors can be

For more information about Somek & Associates’ experts please contact admin@somek.com or visit their website – www.somek.com.

Mr Godfrey Charnley Consultant Orthopaedic and Trauma Surgeon MBBS, FRCS, FRCSEd, FRCS (Orth) Mr Godfrey Charnley is a Trauma and Orthopaedic Surgeon who has been practising in Orthopaedics for some 23 years as a Consultant with a particular interest in Hip and Knee replacement surgery. Mr Charnley has published four chapters in Orthopaedic Textbooks and authored or co-authored over fifty pieces of original research as papers or presentations in leading Journals and at International meetings. He reviews scientific articles for Hip International, the Journal of the European Hip Society and the Bone and Joint Journal. Mr Charnley has been involved in Medico-legal work including general musculo-skeletal injury for over 25 years, and more recently as an expert witness in relation to Medical Negligence and Product Liability associated with hip replacement surgery.

Contact: Mr Godfrey Charnley Email: corinne.neale@ramsayhealth.co.uk Tel: 01245 234 020 Fax: 01245 234 059 Address: Springfield Hospital, Lawn Lane, Springfield, Chelmsford CM1 7GU Mr Charnley has Medico-Legal clinics in East Anglia, the North East, Central London & the South West

EXPERT WITNESS JOURNAL

SUMMER 2019

Your first choice for mental health medico-legal reports Best Experts - A hand-picked, esteemed panel of trusted psychiatry & psychology experts for your peace of mind.

Best Match - Extensive knowledge and experience match expertise to your individual case.

Best Reports - Attention to detail and hard work ensures you receive the highest quality reports.

Best Outcome - Our hands-on style saves you valuable time & money for ultimate satisfaction.

“Expert in Mind offer a reliable service with a vast amount of experts in different fields. Assessments/reports are organised in a professional manner and the service is timely. Communications are always open, and the team are always most helpful with any query. I cannot fault any of the dealings I have had with the experts’ work or the work of the team in the office.” Nikkie Blanchard Crown Prosecution Service

Providing mental health reports for:

Get in touch today:

• Family Law

• Employment Tribunals

• Criminal Law

• Immigration Law

01424 444130

• Personal Injury

• Occupational Health

• Clinical Negligence • Historic Sexual Abuse

enquiries@expertinmind.co.uk Expert in Mind, Astec House, Sedlescombe Road South, St Leonards on Sea, East Sussex, TN38 0TA

Is the Opioid Crisis Coming to the UK and What Impact Could it Have on Medical Negligence Claims? by Dr Chris Jenner, Consultant in Pain Medicine and leading expert witness Opioids are natural and synthetic substances that activate opioid neuroreceptors in the central and peripheral nervous systems and include morphine, codeine, fentanyl, tramadol, methadone, oxycodone and hydrocodone (1–3). Despite a lack of evidence of their efficacy, they are frequently used to treat chronic pain (2). This condition is estimated to affect 20% of adults globally and is more prevalent in individuals of lower socio-economic status (SES) (2,4). Data from North America suggests that among those of lower SES, prescription opioid use is four times higher and death rates from opioid use increase as SES decreases (4).

tion(2,3,8). In England, the number of opioid prescriptions rose year-on-year from 228 million in 1992 to 1.6 billion in 2009 (2), and in the UK as a whole the availability of analgesic opioids increased by nearly 70% between the periods 2011-13 and 201416. However, this does not necessarily mean an increase in overall usage, as prescriptions might be for lower doses or smaller amounts at a time (3). Until recently, the rise in opioid availability was not accompanied by an increase in reported misuse or drug-related deaths (8), but figures compiled by the Organisation for Economic Co-operation and Development (OECD) show that between 2011 and 2016 opioid-related deaths in England and Wales increased from around 30 deaths per million population to 40 per million, a rate well above the 20% average across all OECD countries (3).

Many countries have faced opioid epidemics in the past, but the current situation is particularly challenging as it involves both prescription and illegal substances (3). The crisis in the US, which has affected all age groups (5,6), has resulted from overprescribing of opioid drugs for pain relief, leading to addiction, coupled with the availability of cheap pure heroin and the large-scale supply of illicit fentanyl and its analogues, due partly to the diversion of pain medication to those without prescriptions (1,5–8).

There are several reasons why the UK has not yet seen an opioid crisis on the same scale as the US. Firstly, there are fundamental differences in the healthcare systems of the two countries which may influence the relative harm of opioid misuse (2). In the UK, prescribing practice is for the lowest possible dose for the shortest possible time and it is difficult to obtain repeat prescriptions for opioids, although this clearly does not address access to illicit sources of these drugs (10). Furthermore, marketing practices by pharmaceutical companies in the US may have highlighted the benefits while downplaying the potential harm of prescription opioids (2) and have certainly played a significant role in escalating the problem. Manufacturers have also been implicated in some of the widespread opposition to the US Centres for Disease Control’s Guideline for Prescribing Opioids for Chronic Pain (3). Thus, in the UK measures such as the surveillance of marketing practices, prescribers, patients and overdoses may help to avert a public health crisis (8).

Prescription numbers peaked in 2010-12, at around 280 million (1) but have decreased since then (3). The prevalence of addiction in patients using opioids for chronic pain is around 3-16% in the general population but as high as 43% in some sub-populations (1,6). Due to increased regulation, prescriptions for opioids are harder to obtain, therefore addicted patients have been forced to turn to illicit markets. However, due to the cost of buying prescription opioids illegally, many have started to use heroin instead (1). Estimates for the number of deaths resulting from prescription opioid use vary, but there were thought to be over 40,000 deaths per year during 2015-7 (3,6), although other sources put the figure at less than half that (9). Drug overdoses are now the leading cause of accidental death in the US (1).

Clearly, the opioid crisis presents a challenge to those caring for patients with chronic pain. One measure which might help to reduce the potential impact of opioid dependency is for doctors prescribing opioids

Although the total numbers are substantially lower, the UK has seen a similar trend in opioid consumpEXPERT WITNESS JOURNAL

SUMMER 2019

to use standardised tools to screen all patients for high risk behaviours, with additional monitoring and supervision being made available for those individuals identified as being at high risk of substance misuse. If a transgression is suspected, it should be discussed openly with the patient. (7,11). Consequential measures include limiting the dose and quantity of opioids prescribed, shortening the interval between follow-ups to allow for closer monitoring of the patient, stopping the use of opioid analgesics and referral to a pain or palliative drug addiction expert for co-management if necessary (11).

ilar to the one negotiated by tobacco companies in 1998, in which they agreed to fund educational and enforcement programmes and to recover tobaccorelated health care costs over a 25-year period. However, there are several reasons why this situation may not be applicable to the opioid crisis. Firstly, opioid medications are beneficial in many people who suffer from severe pain. Furthermore, as opioids are not prescribed by the manufacturer, a company can discharge their duty to warn consumers of potentially harmful effects by informing a ‘learned intermediary’, such as a doctor, of any risks associated with the product. Finally, the defendants do not form a homogenous group as these cases have targeted various organisations associated with the manufacturing, distribution and sale of opioids, many of whom will have no direct intervention with patients. Thus, defendants may not see themselves as being equally responsible for the crisis (15) and establishing liability in these cases may be extremely complex.

Doctors may also wish to explore alternative treatments, although effective substitutes for opioid analgesics are limited. Where the use of opioids is indicated, it has been suggested that extended-release opioids may be preferable compared to traditional release medications, as they are less addictive and are associated with lower rates of abuse (6). Other available analgesics include gabapentin and pregabalin, NSAIDS and antidepressants, particularly amitriptyline, but there is no clear and consistent evidence that any of these are successful therapies for chronic pain (2,3). In the future, calcium channel blockers, neurostimulation, gene therapy and transcranial magnetic stimulation may provide novel treatments for chronic pain (1). Furthermore, a multidisciplinary approach, which could include exercise, physiotherapy, massage and psychological therapies, may be useful for some patients (2–4,6,10). Unfortunately, patients’ access to these specialist clinics is often limited, partly as they are not universally available across the UK and waiting times may be substantial (2,10).

In summary, while opioid availability has dramatically increased in recent years in the UK, we are yet to see a crisis on the scale of that in the US. This is probably due to differences between the two countries in the healthcare system and pharmaceutical companies’ marketing practices. Doctors may need to consider alternative treatments for chronic pain, although there are currently few really effective options. A recent initiative funded by PHE, which provides guidance for doctors, pharmacists and patients, should help to mitigate the potentially harmful effects of opioid analgesics. Although there have been numerous opioid-related lawsuits in the US, it is unlikely that a global agreement, in line with that reached with tobacco companies in the 1990s, will be negotiated for opioid analgesics, not least because of the difficulty of determining liability.

In order to assist health care providers, both the US and UK have published guidelines for those prescribing opioids (12). Public Health England (PHE) has funded the web-based initiative, Opioids Aware (3,13). This includes a section for patients which aims to allow them to make an informed decision about whether to begin treatment with opioids, as well as providing information on possible undesirable consequences (3). This initiative also emphasises the role of pharmacists, as well as doctors, in mitigating the adverse effects of opioid usage. Guidelines for the provision of over-the-counter analgesics containing codeine or dihydrocodeine state that these drugs should only be used for acute pain of short duration. Pharmacists are also encouraged to take a proactive approach by highlighting excessive or unusual doses and requesting a review by the primary prescriber (13). If adhered to, these guidelines should prevent a crisis on the scale seen in the US.

Dr Chris Jenner MB BS, FRCA FFPMRCA is a Consultant in Pain Medicine and leading expert witness in all cases which involve pain. Since 2001 he has been practicing at Imperial College NHS Trust as a Consultant at St Mary’s in Paddington, London and is an Honorary Clinical Lecturer for the Trust. He has a Pain Clinic at Charing Cross Hospital in London. Dr Jenner founded The London Pain Clinic in Harley Street London W1, where he is Clinical Director. He can be instructed through Medicolegal Partners Limited on 020 7118 0650 or info@medicolegal-partners.com. www.medicolegal-partners. References 1. Morland R. Evolution of the national opioid crisis. Nursing (Lond). 2019 May;49(5):51–6.

In the past 15 years, there have been over 1600 lawsuits, chiefly by city, state and county governments, against opioid manufacturers in the US (3,14,15) but to date, there have been few, if any, such cases in the UK. It has been suggested that the parties involved in these cases should reach a global settlement, sim-

EXPERT WITNESS JOURNAL

2. British Medical Association. Chronic pain: supporting safer prescribing of analgesics. London: British Medical Association; 2017. 36 p. 3. Addressing Problematic Opioid Use in OECD Countries. OECD; 2019. (OECD Health Policy Studies).

SUMMER 2019

4. Webster F, Rice K, Katz J, Bhattacharyya O, Dale C, Upshur R. An ethnography of chronic pain management in primary care: The social organization of physiciansâ&#x20AC;&#x2122; work in the midst of the opioid crisis. PLoS One. 2019;14(5):e0215148. 5. Harbaugh CM, Gadepalli SK. Pediatric postoperative opioid prescribing and the opioid crisis. Curr Opin Pediatr. 2019 Jun;31(3):378â&#x20AC;&#x201C;85. 6. Stoicea N, Costa A, Periel L, Uribe A, Weaver T, Bergese SD. Current perspectives on the opioid crisis in the US healthcare system: A comprehensive literature review. Medicine (Baltimore). 2019 May;98(20):e15425. 7. Volkow ND, Icaza MEM-M, Poznyak V, Saxena S, Gerra G. Addressing the opioid crisis globally. Vol. 18, World psychiatry : official journal of the World Psychiatric Association (WPA). Italy; 2019. p. 231â&#x20AC;&#x201C;2. 8. Weisberg D, Becker W, Fiellin D, Stannard C. Prescription opioid misuse in the United States and the United Kingdom: cautionary lessons. Int J Drug Policy. 2014;25(6):1124â&#x20AC;&#x201C;30. 9. LaPietra AM, Motov S. A Country in Crisis: Opioid Sparing Solutions for Acute Pain Management. Mo Med. 2019;116(2):140â&#x20AC;&#x201C;5. 10. Royal College of General Practitioners. UK general practice helps avoid US-style â&#x20AC;&#x153;opioid crisisâ&#x20AC;?, says RCGP [Internet]. 2019 [cited 2019 May 22]. Available from: https://www.rcgp.org.uk/about-us/news/2019/february/ukgeneral-practice-helps-avoid-us-style-opioid-crisis-saysrcgp.aspx 11. Arthur J, Reddy A. Opioid Prescribing in an Opioid Crisis: What Basic Skills Should an Oncologist Have Regarding Opioid Therapy? Curr Treat Options Oncol. 2019 Apr;20(5):39. 12. Pergolizzi JVJ, Rosenblatt M, LeQuang JA. Three Years Down the Road: The Aftermath of the CDC Guideline for Prescribing Opioids for Chronic Pain. Adv Ther. 2019 Apr;

13. Public Health England. Opioids Aware: A resource for patients and healthcare professionals to support prescribing of opioid medicines for pain | The Royal College of Anaesthetists [Internet]. 2018 [cited 2019 May 22]. Available from: https://www.rcoa.ac.uk/faculty-of-painmedicine/opioids-aware

1 &118 /#*.2 *2 &70&1*&.$&% ".% $/.3*.4&2 3/ 01"$3*$& *. ",, "20&$32 /' "231/&.3&1/,/(8 *.$,4%*.( '4.$3*/.", #/6&, %*2&"2& *.$/10/1"3*.( 3)& 11*3"#,& /6&, 8.%1/-& .',"--"3/18 /6&, *2&"2& %820)"(*" %820&02*" 1&',47 %*2&"2& ",3&1&% #/6&, )"#*3 *.5&23*("3*/. /' *1/. %&'*$*&.$8 "."&-*" $/&,*"$ %*2&"2& 4.&70,"*.&% "#%/-*.", 0"*. ".% "#./1-", 2

14. Joseph A. If Purdue Pharma declares bankruptcy, what happens to the opioid cases? [Internet]. 2019 [cited 2019 May 24]. Available from: https://www.statnews.com /2019/03/04/if-purdue-pharma-declares-bankruptcy-whatwould-it-mean-for-lawsuits-against-the-opioid-manufacturer/

1 /#*.2 )"2 ",, .&$&22"18 "$$1&%*3"3*/. ".% &73&.2*5& &70&1*&.$& *. ("231/2$/08 &.3&1/2$/08 ',&7*#,& 2*(-/*%/2$/08 ".% $/,/./2$/08 *.$,4%*.( 3)&1"0&43*$2

15. Opioid Litigation: Insurance and Risk Management Considerations [Internet]. 2018 [cited 2019 May 24]. Available from: https://www.marsh.com/us/insights/research/opioid-litigation-insurance-and-risk-management-considerati ons.html

& *2 &70&1*&.$&% *. 61*3*.( &%*$/ &(", 1&0/132 *.$,4%*.( '/1 ",,&(&% $,*.*$", .&(,*(&.$& & )/,%2 36*$& 6&&+,8 $,*.*$2 2/ $". 2&& 0"3*&.32 ".% 01&0"1& 1&0/132 1"0*%,8

1 &118 /#*.2 ".& /22

(1/#00 (//(,&-"*, $/ %1(&1181/#*.2 $/ 4+ 4''*&,% /20*3", "7#8 /"% !/1+ !

Need an expert report? Any area of expertise in England, Ireland, Scotland or Wales Please call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk EXPERT WITNESS JOURNAL

SUMMER 2019

How to get the best from your Expert - Practical advice for Instructing Solicitors GWP Consultants LLP “Did blasting in a nearby quarry cause the cracking now seen at the subject property?”

Senior staff at GWP Consultants LLP (GWP) have been appointed as expert advisors and expert witnesses in cases involving mining, geological, geotechnical, mineral resource and hydrogeological issues for over 30 years. Senior members of staff are frequently called upon to provide expert opinion in technically challenging cases in civil and criminal courts, arbitrations, mediations and planning inquiries.

“Would it have been possible to produce good quality aggregate from the in situ rock at this quarry?” “Was a liquefaction failure in iron ore concentrate being carried in a bulk ore carrier responsible for its capsize and sinking?” “Could the adverse hydrogeological setting that gave rise to the spread of a pollution plume have been foreseen if the initial site investigation had been competently carried out?”

Examples of questions our experts have been called upon to address: “Was the information provided at the time of tender sufficient for the contractor to have predicted the amount of blasting that would be necessary to extract the rock from this quarry?”

“Was mining overburden waste stripped by the contractor or by the mining company?” Unlike, for example, providing an opinion on the medical condition of a patient, or forensic examination of financial accounts, questions such as these are ‘one-offs’, requiring bespoke investigation, often taking months or even years, before the expert can provide opinion evidence on the issues put to him or her. This is likely to include: forensic examination of documents; geological, geotechnical and/or hydrogeological modelling and calculations; and sometimes field and laboratory testing.

“Was mining subsidence the trigger for reactivation of an ancient landslide, the movement of which caused significant damage to buildings constructed on and close to the landslide?” “Was the quantity of recoverable mineral foreseeable from the information provided to the mining contractor at the time of tender?”

EXPERT WITNESS JOURNAL

SUMMER 2019

• Does the expert understand what is required of an expert?

With years of accumulated experience of addressing questions like these, we feel well qualified to pass on some straightforward and practical advice to those identifying and instructing experts.

• Does the expert have any formal training or belong to organisations that support the professional development of experts?

Selection of the right experts is critical, and this is not down to technical knowledge alone; just as knowledge of the law must be paired with skills and experience in advocacy for an effective barrister, technical knowledge must be paired with appropriate professional skills and experience in performing the roles and meeting the responsibilities of an expert witness. In our experience, the ability of an expert effectively to communicate his or her opinion to non-specialists in writing and orally is at least as important as technical or scientific experience (often more so). Money spent on instructing a technical expert who is unable or unwilling to make his or her opinions understood by the non-specialists who need to rely on them (lawyers, clients, jurors etc) is money risked (potentially even wasted), however eminent that expert may be, and however ‘star struck’ the client or instructing solicitor may be. His Honour Judge John Newey, speaking at a training event for technical expert witnesses in the 1980s, gave this advice: “If your expert report is not capable of being understood by an intelligent fourteen year old, try again”; this is simple yet powerful advice that has stood GWP’s practising experts in good stead over many years and it is advice we would recommend lawyers to bear in mind when selecting and working with technical experts. This is not about dumbing down technical evidence, quite the contrary, as will be seen in the case study presented later in this paper.

• Does the expert have conflicts which would make s/he unsuitable? • How much will the expert charge? • What sort of experience or track record has this expert got as an expert witness in cases of this type? • What sort of investigations will the expert need to do? • Does the expert have technical and administrative backup in the office to carry out those investigations? • Does the expert understand that the evidence will be theirs even if s/he gets colleagues involved working under his or her direction? • Will the expert be genuinely independent and objective? In order to find out these things you must give the expert sufficient information. Given sufficient information, an expert will be able to help you understand and frame the issues. This will also make it easier for them to determine whether they are the right expert for the job and, if not, give advice or recommendations of more suitable experts or additional expertise that may be needed on the team. Instructing the expert The key points to communicate to your expert are: • What are the issues to be addressed? • What stage has the dispute reached? • What is the timetable? • What is the expert expected to contribute in terms of ‘deliverables’? • Who will be settling the bill? • What are the arrangements for submitting an invoice? • Is there an upper limit on fees and what is the mechanism for review of the fee budget (or the Client’s expectations) if this is later found to be insufficient to do the job properly? Consider a 2 or 3 stage instruction for example:

GWP has been involved in cases where the personal credibility of the expert was a deciding factor in the judgement rather than technical arguments alone, and this aspect is also illustrated in the case study. Choosing the right expert is only part of the challenge; to get the best from their experts, instructing solicitors need to provide appropriate support to the expert to allow him or her to most adequately prepare and present expert evidence. We have set out below some advice for solicitors to consider when selecting and working with experts, from the initial approach to cross-examination, drawing on our experiences, both good and not so good.

Stage 1 Please spend up to ** days (£**) reviewing the enclosed documents and provide an initial opinion on the following questions: (followed by a list of issues and questions arising out of what you think at this stage you need to prove in legal terms).

Making the initial approach or how to identify the right expert The first approach from a solicitor to an expert may be the result of a personal recommendation or arise from a trawl through directories by a junior assistant who may have a limited understanding of what kind of expert might be needed but has been set the task of identifying a shortlist of potential experts.

For each issue please confirm whether or not this is a matter within your expertise and, where possible, provide an outline of the information you would expect to see and the investigations you will need to carry out if this were to proceed to a tribunal requiring expert evidence (a good expert will tell you if a matter is not within his or her expertise and will often recommend a more suitable discipline and/or person).

When making this first approach, consider the following: • Is this expert’s expertise applicable to the particular issue on which you need expert input?

EXPERT WITNESS JOURNAL

SUMMER 2019

Stage 2 Based on your preliminary opinion of the claim, please assist, in the role of expert advisor, in the preparation of the Prosecution or Defence case. We will agree a scope of work and a budget when the matters to be considered are clearer (based on Stage 1) (in other words “please help us to understand the claim and advise us as to technical matters within your expertise”).

• Insist on behalf of a client that the report is modified to put their case in a better light. If a passage is unhelpful to your client’s case, you might consider modifying the instructions so that this issue is not covered in the report but BEWARE, your expert could still be asked about this in cross examination if it is within his or her area of expertise. Make your client aware of what your expert will say if asked and consider the risks associated with this.

Stage 3 As an outcome of Stages 1 and/or 2 if this case proceeds to a hearing, we expect to instruct you to prepare expert evidence. At that time, we will provide you with detailed instructions as to the issues to be addressed in your report and the required timing of your involvement. We appreciate that it will be necessary to re-visit the budget at that time.

Working with your expert – without prejudice meetings with other experts Do: • Agree a list of issues with your expert in advance. • Make it clear that other issues (especially matters of law) are not to be part of the discussion. • Help the expert by reviewing any joint document before it is issued. Suggest changes, don’t demand them.

Working with your expert – evaluating the strength of the case and the quality of the expert During this phase opportunities exist to: • Re-evaluate the technical strengths and weaknesses of your client’s case and identify any fatal flaws or serious weaknesses;

Don’t: • Insist on being present. • Exclude your expert from the development of an agenda. • Instruct your expert to be obstructive – the expert’s first duty is to the court by this stage.

• Use the expert’s expertise and communication skills to help the client face up to weaknesses in his argument – and maybe modify his expectations of success or seek alternative ways to resolve the dispute;

Working with your expert – preparing for the hearing In a technical case, Counsel needs to be able to understand the technical evidence on both sides. The expert has a valuable role to play working with Counsel as he or she plans cross examination. Keeping the expert away from Counsel is a false economy.

• See how well the expert performs on paper, with the client, and the legal team. Working with your expert – the experts report Do: • Make sure all relevant information is available – be guided by the expert. ‘Helpful’ attempts to limit the amount of documentation to be reviewed can backfire!

Working with your expert – the hearing When evidence relevant to his/her expertise is being heard, the expert can perform a useful function assisting Counsel by providing explanation or prompts especially if unexpected responses are forthcoming. Hearing witnesses of fact and experts on the other side can significantly help an expert by reducing the scope for unexpected questioning. Unless it is a requirement of the Court, keeping an expert out of the proceedings until it is time for his or her evidence is likely to be a false economy.

• Set realistic deadlines and be prepared to modify them if the expert’s investigation reveals or changes matters that are relevant to the conduct of the case, especially if the prospects of success are affected by new findings. • Provide a clear list of issues to be covered in the report – usually best supplied as a set of questions, which the expert can often help you to frame. • Remind the expert, however experienced, about mandatory elements such as setting out of instructions and qualifications and Statement of Truth.

When giving evidence, the expert is on his or her own – except for any re-examination by Counsel. You may think a poor performance at a hearing reflects badly on the expert alone – but should you have foreseen that this would happen? Could you have supported the expert better and made the requirements clearer? How did you let the expert get this far without anticipating how they would perform? How does poor expert performance reflect on you as an instructing solicitor?

• Read drafts carefully and provide suggestions for amendment and clarification. Your expert needs to be able to communicate his or her evidence to nonspecialists like you. If you can’t follow what they have written, how can you be sure of the implications for your client’s case, and what risks are you running if the expert has not communicated clearly to the Court or other tribunal? Ask yourself whether the report passes the “intelligent 14 year old test”.

How a case can turn on expert evidence and poor performance of experts – a case study Sometimes cases turn on expert evidence. Although over 25 years old, one such example in which an expert from GWP appeared for the Claimants illustrates how poor performance of the Respondent’s experts was a crucial factor in the final decision against the Respondent.

• Give the expert the opportunity to discuss their report with Counsel before it is finalised. Don’t • Write the report for the expert and expect them to sign it. EXPERT WITNESS JOURNAL

SUMMER 2019

The case: Langley & Ors v Coal Authority v The Coal Authority: [2002] EWLands LCA_29_1996 After a landslip in the early 1990s in the ‘Back Hills’ area of Bolsover, several houses suffered damage, some to the extent that they had to be demolished. The owners of the damaged or demolished houses claimed that coal mining beneath the surface of their land (or beneath an area close to their land) had caused or contributed to the landslip in the 1990s. They claimed that they were entitled to compensation from the Coal Authority (the “Respondent”) pursuant to the provisions of the Coal Mining Subsidence Act, 1991. The claims were brought in 1996. It was determined by the Lands Tribunal that all the cases should be heard at the same time and that, in the first instance, only issues of liability would be considered.

Expert evidence and how the Judge Levy evaluated it In his judgement, Judge Levy recorded:“As will be apparent from the previous paragraphs of this decision, almost all the evidence I heard was given by experts. Whilst they were in agreement with their opposite number on much, they disagreed on vital parts of the evidence of their opposite number. It is, therefore, necessary for me to evaluate the experts themselves as witnesses on whose evidence I can rely.” The Judge’s criticism of the defendant’s experts reflects both injudicious choice of expert and lack of support or advice provided to the experts in carrying out the role of expert. There were two areas in which the experts’ credibility was questioned by the Judge. 1. Was the report the work of the expert? “When I first read Dr L’s expert report I was struck by the number of times that the words “we” and “our” were used and I wondered if in fact I was reading a report by Dr L or one made by subordinates. In the course of his evidence Dr L said that he was more used to writing impersonal reports than the personal ones required of an expert witness.”

The Claimants’ case was that there was a landslip in the 1930s in an area of the Back Hills which was, at that time largely undeveloped. They claimed that this landslip was caused by mining subsidence and that the later (1990s) landslip would not have occurred but for the 1930s landslip. The Respondent’s case was that the landslips were primarily the result of natural processes related to the evolution of the escarpment at Bolsover, and that the trigger mechanism for both slips was the rise in the water table following extreme rainfall.

These fundamental issues relating to the report that were identified by the Judge were entirely preventable if they had been properly checked by the instructing solicitor beforehand. 2. Was the expert fully aware of his duties to the court as an independent expert? Mr M had previously been in the employment of the Defendant or its predecessor and questions were raised about his independence and his understanding of the responsibilities of expert witnesses, citing the guidance given by the courts in a decision of Mr Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Co ("the Ikarian Reefer). The judge concluded that:- “It may be that if his involvement with mining subsidence in Bolsover had been confined to the investigation he made and the memorandum he wrote in 1985, that could be seen to be the case; however, when an expert witness has actually addressed a meeting of opponents to a party by whom he is subsequently approached to give expert evidence, I find it difficult if not impossible to accept that he can truly be seen to be independent.

The experts who appeared for the Claimants included Dr Alan Cobb from GWP (mining expert) and two experts on geology and landslips from Halcrow; Mr Siddle and Dr Jones. Two experts, Dr L and Mr M, appeared for the Plaintiff. Issues to be resolved by the experts 1. What was the date or approximate date of the 1930s landslip? It was agreed between the parties that there had been such an event. 2. Was the failure in the 1930s a first-time failure? There was some suggestion in the evidence that apart from prehistoric landslips there had been failure in the area of the Back Hills in the 1920s. 3. Was the 1930s landslip shallow or deep seated? 4. What caused the 1930s landslip? 5. What caused the 1990s landslip?

In the circumstances, in my judgment, it was inappropriate for him to give expert evidence for the Coal Board in this reference and I feel obliged to approach his evidence with caution.”

6. Was the damage sustained by 71 New Station Road caused by the 1990s landslip? 7. The value and relevance of numerical analysis Numerical analysis had been carried out by experts on both sides to model the historic and current situation in time and space as they saw it. This analysis was technically complex, and a key challenge for the experts in this case was the effective communication of what had been done and the meaning and significance of the results, to the advocates preparing and presenting the case, and to the judge.

EXPERT WITNESS JOURNAL

The Client’s case was badly damaged. The weight to be given to the opinions of the experts In his decision the Judge concluded:“the criticisms which I have made of Mr M and Dr L are in my judgment substantial. In a case on which the decision must largely hinge on expert evidence, I have to make an assessment of the expert witnesses. I have in the previous paragraphs pointed to deficiencies in the evidence of each of them. 26

SUMMER 2019

Apart from my belief that Mr M could not be seen to be an independent witness, I found him far less impressive as a witness in the witness box than was Dr Cobb. Not only was the latter more qualified than Mr M, but his knowledge on mining subsidence was greater.

GWP Consultants LLP Geotechnical and Mining Consultants

At the end of the day I found Dr Cobb a most impressive witness and where his opinions differed from those given by his opponents, in my judgment it is appropriate to accept his views.

GWP Consultants LLP (GWP) is an independent Limited Liability Partnership based near Oxford, England, with over 40 years experience providing specialist geological, geotechnical, hydrogeological, hydrological and surveying expertise. These skills are applied to the quarrying, mining, waste management, water resources markets and also to infrastructure and governance projects throughout the UK and internationally.

The many passages of his evidence on which Dr L was cross-examined most effectively, severely damaged his credibility as an expert witness. He did not seem to have mastered his brief, was less learned than Dr Jones and less knowledgeable than Mr Siddle.

Providing specialist expertise to mining and geotechnical advice to the international minerals and cement industry. In our specialist areas we are able to provide objective, independent and reliable expert support for clients involved in mergers, acquisitions, valuations, floatations, feasibility studies, Public Inquiries and various forms of dispute resolution.

Indeed, after observing the five expert witnesses for a number of days giving their evidence, and having read and re-read the transcripts of their evidence, I draw a firm conclusion that where their views differed I should place a higher value on the opinions of the experts called on behalf of the Claimants than those called on behalf of the Respondent.” Conclusions Make sure your expert understands his or her duties from the outset. In your instructions refer to and draw attention to the Guidance for the Instruction of Experts in civil claims (current version Civil Justice Council August 2014). Consider using a model form of engagement for experts and codes of guidance for experts and those instructing them.

Our expert services are characterised by attention to detail, excellent communication skills and a collaborative style of working with other technical specialists, legal and financial professionals, regulators and the public. Contact Name: Miss Isobel Brown Tel: 01608 810374 Email: info@gwp.uk.com Web: www.gwp.uk.com Area of Work: Nationwide and International Upton House, Market Street, Charlbury, Oxford, OX7 3PJ

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

Every expert has to start from somewhere – if you have an inexperienced but otherwise excellent expert, organise or recommend training or give clear help and guidance so that they avoid the pitfalls that reflect badly on them and, more importantly, could fatally damage your client’s case.

Mr. David Grantham

There is no excuse for not finding out you have the wrong expert before a hearing (and preferably before you identify them to the other side).

Environmental Management Consultant/Expert Witness BEng(Hons) CEng CEnv FCIWEM CWEM MCIWM CWM PIEMA MAE

David is water and waste management consultant and expert witness with more than 30 years experience including more than 20 years as a director leading technical consultancy and waste management companies.

About GWP Consultants LLP GWP has developed particular expertise in the assessment of methods of working and scheduling, geotechnical instability, diggability and blasting practice which are all common areas of dispute in surface mining operations. GWP has also developed additional specific expertise in the behaviour of quarried or processed materials during transportation on bulk carriers and in the hydrogeological characterization of sites relating to derogation claims, subsidence and contamination plumes and regularly advises on geological and hydrogeological conditions for major planning enquiries. In many cases, the Practice has assisted in attempts to avoid recourse to the courts.

He has developed an in-depth working knowledge of water and waste management methods, legislation and guidance, including as the technically competent manager of hazardous waste treatment sites. David has led award winning water and waste management improvement programmes in a wide range of industries including environmental leadership of nationally significant infrastructure projects. David has been an expert witness since 2001 in commercial and criminal defence proceedings involving water and waste management.

Environmental Management Consultants Ltd The Terrace, Grantham Street, Lincoln, LN2 1BD Tel: 01522 520888 - Mobile: 07502264034 Email: lincoln@environmental.uk.net Website: www.environmental.uk.net Area of Work Nationwide and International

For further information on our expert services please contact Mark Prichard +44 1608 810374, info@gwp.uk.com, www.gwp.uk.com

EXPERT WITNESS JOURNAL

SUMMER 2019

Legal aspects of Cultural, Religious and Ethnic Changes in the NHS-UK from 1964 to 2019 by Dr Bashir Qureshi FRCGP, FRCPCH, AFOM-RCP, Hon FFSRH-RCOG, Hon FRSPH, Hon MAPHA-USA. • Expert Witness Cultural, Religious & Ethnic issues in Litigation. • Expert Witness in GP Clinical Negligence. • Author, Transcultural Medicine; dealing with patients from different Cultures. Introduction: NHS Formation Politics Politics, Economics and Law are as essential for patient care in the National Health Service (NHS) in the UK as Medicine. The NHS, was started on 5th July 1948 by the then Minister of Health in Attlee’s post 2nd world war Labour government, Aneurin Bevan, at the Park Hospital in Manchester. Happy 71st Birthday on 5 July 2019! The aim has been to provide a good, multi-professional and reliable healthcare free for all British citizens. In addition, there were privately paid services available for the rich, in NHS hospitals and in Private hospitals. This aim has not changed but delivery of most services is changing all the time.

type 1 patients used to sleep in hospitals to get treatments and go to work in day time. There were many mental hospitals where patients worked to produce goods for sales outside. As two million British soldiers died in World War II, along with four million German and six million male Jews, there was shortage of male factory workers and male doctors and staff for the NHS. Nurses were recruited mainly from Ireland. British Labour Government negotiated, as one-off agreement, to import 40,000 factory workers and 18,000 doctors mainly from India, Pakistan and Sri Lanka. They had to be men aged 20 to 40 years and in good health.

Finances After the 2nd world war, Germany and Japan lost their treasury assets. Britain shared this wealth with France, USA and Russia (USSR). On 15 August 1947, Britain withdrew from India and then from other colonies. The treasury assets from these countries were transferred safely to the Bank of England and later it was called “Common Wealth”. The government made sure that this wealth be spent on Public Services including the NHS. Another long-term income for the NHS, has been an NHS tax from salaried and self-employed workers.

Doctors were trained by British qualified and supervised Professors. Two English Appraisers used to visit every year to check the authorized Medical Colleges abroad. I am one of those 18000 doctors, who were given “Acquired Right to Practice in the UK” without having to pass any medical examination in the UK. However, I am unusual. I passed three basic English qualifying examinations and 17 English Medical Diplomas, Memberships and Fellowships of British Royal Colleges or Academic institutions. My website is worth reading, I hope. Foreign Doctors in the UK, were retrained and supervised by many English or Scottish consultants and senior doctors to make patient care very safe. Now in 2019, the NHS staff is Multicultural, Multireligious and Multiethnic, mostly UK trained and Appraised.

Some services such as dentistry are subsidized, half paid by NHS funds and the rest by the patients. Some patients, elderly and disabled, get free care and prescriptions. Most immigrants are charged full cost of NHS services. Now 71 years on, that wealth has been wisely spent. Therefore, in good faith, it is essential to reduce costs for NHS services.

Complaints In 1960’s, every patient had his or her named doctor GP whom they saw as needed. Relationship between patient and doctor, in GP surgery and in hospital clinics, was strong. Patients took their doctor’s advice readily. If there was any concern, the patient contacted verbally a Practice Manager or hospital Nursing Sister. If a patient died, sometimes the doctor was invited to attend the funeral. If a patient felt upset and left GP surgery, the GP lost his/her fee from NHS money.

Cultural Aspects Manpower In 1960’s, I witnessed that the vast majority of patients were White British, mostly men, who were war wounded or traumatised by deaths of their soldier relatives or colleagues. There were Geriatric wards and Disables’ wards in addition to General Medical and Surgical wards, in all hospitals. Some diabetic

EXPERT WITNESS JOURNAL

SUMMER 2019

Now, in 2019, patients are made to see any doctor on duty and not necessarily their named doctor. This is to protect a doctor from patient’s complaints. No “named doctor passes” are issued anymore. Increasingly, patients tend to complain and seek monitory compensation for their complaints. The work and income of Judges, lawyers,expert witnesses and witnesses had increased. Every doctor has to have expensive Insurances to pay for claimants’ claims. A patient complaint can bring punishment from the General Medical Council as well and some of them may lose registration to practice medicine in the UK, even forever. Due to such a stress of patients’ complaints, some doctors have committed suicides or developed depression. These pressures and NHS costs cuts have reduced the number of doctors, resulting in more pressure on those who are still working. I work as an Expert Witness in GP Clinical Negligence and witness it.

Dr Bashir Qureshi FRCGP, FRCPCH, Hon. FFRSH, RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSH, Hon.MAPHA-USA

Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence. As a specialist in Cultures, Religions and Ethnicities, since 1992, I have written reports, given advice, and evidence in tribunals or courts. In cases of medical negligence, discrimination in employments, personal injuries, accidents, murder inquiries by police, family or marital disputes, child abuse, sexual abuse, immigration, asylum and other litigation cases. Languages spoken: English, Urdu, Hindi, Punjabi.

Religious Changes Religious Influence In 1960’s, some NHS and private hospitals were run by Christian organisations and Irish Blue Nuns (wearing blue head scarfs) in the UK. Majority of hospitals were run by liberal or secular Christians. In 1965, I worked as a House Physician/Medical Officer at St Andrews Hospital, Dollis Hill, London. It had a sister hospital at St. Johns Wood. Administrators and senior nurses were Blue nuns but medical staff and patients were mostly English and other Europeans. In other hospitals, nurses were recruited mainly from England and Ireland. In St Andrews Hospital there were 40 NHS beds and 80 private beds; I was one of two House Medical Officers but there were 5 English consultants. With time, these hospitals and many local hospitals have been closed. In 2019, I witness that in many hospitals in London the doctors, nurses and healthcare staff are becoming multicultural, multireligious and multiethnic. Any patient who asks to be cared by a white British staff is disciplined.

Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.

Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS would go to a candidate from the race or ethnicity of the majority of the country. For example; in England, 1st job would go to English, 2nd to Scottish, 3rd to Welsh, 4th to Irish, 5th to European, 6th to any other from a white country e.g. Australia, 8th to Asian, 9th to Afro-Caribbean, 10th to African and so on. Interestingly, this fact applies to the post of the Prime Minister or President in every country. It pays to accept reality and proceed forward. Positive approach would achieve more than a negative response.

Religious respect In 1960’s, there were mainly Christian doctors, nurses, staff and patients; therefore, only Christian festivals were celebrated in hospitals. As a resident house Medical officer, I used to enjoy Christmas; when I used to push a trolley full of wines and whiskies, an Irish ward sister used to greet a patient and a male English or Scottish Consultant used to pour a drink even to someone who had alcoholic cirrhosis. Now in 2019, patients and staff are from many religions the religious ceremonies of various religions are celebrated in Religious room on ground floor of many hospitals. Everything changes with time except this principle (Aristotle). I work as an Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. When I gave evidence in a Criminal Courts, the press was present but not allowed to report, by judge, so as to avoid public reaction to my impartial opinions.

Preferences It is a natural human instinct in Preferences or discrimination, to consider mainly six major factors: 1. Age 2. Gender 3. Social class 4. Culture 5. Religion 6. Race/ Ethnicity. No one can eliminate these instincts but everyone has to accept or reject these factors. One has to negotiate how and to what extent to get around to survive and thrive. The NHS is a great tradition and asset of British nation. I hope it continues for many years. This article is written on 5 July 2019, at 71st Anniversary of the NHS, in my role as an Impartial Expert Witness in Cultural, Religious & Ethnic issues in Litigation since 1992.

Ethnic Factors Hierarchy Every country has the same tradition in hierarchy in every job, being other factors equal, that the first job EXPERT WITNESS JOURNAL

SUMMER 2019

Effectively Worthless by Julie Hamilton, Partner The recent, high profile collapse of a multi million pound fraud trial in London highlights the importance of expert evidence. The role of an expert witness should be to provide the court with an opinion on a particular subject based on their experience, knowledge and expertise.

Expert evidence is often crucial to the success of a case, whether civil or criminal, commercial or personal. Challenges to expert evidence, while not usually as headline grabbing or as disastrous as Mr Ager, crop up in court fairly regularly. MacRoberts’ Dispute Resolution team works with expert witnesses on a regular basis and we are well placed to ensure our clients’ needs are met.

Andrew Ager had been employed as an expert witness by the prosecution in a trial of eight men accused of a £7 million carbon credit fraud. Mr Ager was completely discredited before the court and the accused were cleared. The judge stated: “Andrew Ager is not an expert of suitable calibre. He had little or no understanding of the duties of an expert. He had received no training and attended no courses. He has no academic qualifications. His work has never been peer-reviewed.”

Julie Hamilton - Partner Having trained with MacRoberts, Julie has worked exclusively in dispute resolution for over 20 years. Her expertise includes IP litigation, property litigation, procurement litigation, company, partnership and shareholder disputes, contractual and damages claims, interdicts and professional negligence matters. Julie is also a Solicitor Advocate.

In cross-examination, Mr Ager “couldn’t remember” if he had passed any A-levels. Despite stating that he was fully informed about the carbon credits market, he admitted he had not read any books on the topic, and had made no notes of any workings. He had kept sensitive material provided by the police in a cupboard under the stairs, which had been damaged by a leak. He had also cut and pasted his witness statement from other trials.

Julie is listed in IP Stars’ 2018 rankings. In addition, her work contributed to MacRoberts being shortlisted for Commercial Team of the Year at the British Legal Awards 2016. www.macroberts.com

Whilst it is not an easy role to act as expert witness, there are basic principles or duties to follow, namely to act in a manner which is: v Independent v Objective v Unbiased

Dr Deepak Jain Consultant Physician MBBS, MD, FRCP, Msc, PGCert Joined NHS in 1991. Consultant, General and Elderly Medicine, Lister Hospital, East and North Herts, since 1997, besides working as:

When instructing an expert witness, you should check their qualifications and examine their CV, including training or experience to provide the specialised evidence. You should also check the limit of their expertise – what are they not able to comment on.

• • • • • •

Senior Lecturer, Royal Free/UCL Medical School, Clinical tutor, Foundation Programme Director, Regional advisor, medicine. Clinical Lead Clinician for revalidation of trainee doctors, Panellist, Clinical Case Managers Eastern Deanery /Clinical Governance Committees. • Clinical Director, elderly medicine. • Attended Medico- Legal Training 2010 • Registered in expert witness

Importantly, following a UK Supreme Court case in 2011 (Jones v Kaney), an expert witness can be sued for negligence or dishonesty. There is now a Code of Practice published by the Law Society of Scotland to assist expert witnesses employed by solicitors and giving clear guidance. Experts must also comply with the code of conduct of any professional body to which they belong. The guide makes it clear that instructions to act as expert witness should only be accepted when the expert is fully qualified to speak on the subject and has the resources to complete the matter within an agreed timeframe.

EXPERT WITNESS JOURNAL

Proﬁcient in General internal medicine, Stroke, cardiovascular diseases aﬀecting elderly, Falls, Syncope and mental capacity assessments, I’m interested in undertaking related medico-legal works. Contact: Deepak Jain Tel: 01438314333 - Alternate Tel: 02035659855 Mobile: 07715420812 Email: deepak@jains.eu 24 Beaumont Place, Barnet, EN5 4PR Area of work: Hertfordshire and surrounding areas

SUMMER 2019

No Slip-ups as Serious Injury Claim is Successfully Defended at Trial Clyde & Co are pleased to report the successful defence of a claim after a site supervisor sustained a serious arm injury following an alleged accident at work. Background The accident occurred when the Claimant, then a site supervisor employed by the Defendant, was entering his porta-cabin office at a site depot. The Claimant alleged he slipped on a raised weather strip which formed a threshold at the entrance of the cabin.

The Claimant sustained a severe injury to his right distal radius. Unfortunately, he went on to develop chronic regional pain syndrome (CRPS). Carpal tunnel decompression surgery proved unsuccessful and left the Claimant with problems with wound healing and ongoing symptoms of pain.

The Claimant's expert also stated that various British Standards applied to the weather strip/threshold of the porta-cabin, and that these had not been complied with by the Defendant. In response, our Defence was that: There was ambiguity surrounding the accident and whether the Claimant in fact tripped, rather than slipped, as the medical records recorded a tripping incident.

The Claimant underwent further surgery abroad which brought about a significant improvement in his condition. Proceedings The Claimant bought a claim against his former employers on the basis that the accident was caused by the Defendant's breach of duty. The claim was valued in excess of ÂŁ150,000. The case involved two liability engineering experts giving oral evidence at a 2 day trial.

The Claimant had presumably been in and out of the cabin on many occasions before the accident without difficulty. Furthermore there were no other accidents at this site and they have had no report of a similar accident.

Mr Ciaran O'Boyle Consultant Plastic Surgeon MD, FRCS (Plast), BSc

Dorset Orthopaedic Ltd Prosthetic, Orthotic, Physiotherapy, Residential Rehabilitation & Silicone Experts

Mr Ciaran Oâ&#x20AC;&#x2122;Boyle is a Consultant Plastic Surgeon and Honorary Assistant Professor at the University of Nottingham. He has a wide range of expertise in reconstructive and aesthetic surgery, burn care, trauma, scarring, skin cancer and surgery for facial paralysis.

Dorset Orthopaedic has highly experienced Prosthetists, Orthotists and Physiotherapists, all of whom are registered expert witnesses. They have all undergone various Bond Solon expert witness training courses. We undertake expert witness and case management reports for claimants, defendants and under joint instruction.

Mr O'Boyle regularly receives instructions for medical assessments and expert opinion in cases of personal injury, scarring and disfigurement.

Legal consultations are undertaken at our fully operational clinics in: u Ringwood, Hampshire u Burton upon Trent, Staffordshire And at our satellite consultation rooms in: u Harley Street, London (Prosthetic & Orthotic) u Altrincham, Manchester (Prosthetic only) u Exmouth, Devon (Prosthetic only) u Newcastle-upon-Tyne, Tyne & Wear (Prosthetic only) u Glasgow (Prosthetic only)

Ciaran P O'Boyle Ltd BMI The Park Hospital Sherwood Lodge Drive, Nottingham, NG5 8RX Tel: 0115 971 3593 Mobile: 07531 501854 Email: coboyle.plasticsurgery@gmail.com Web: www.ciaranoboyle.co.uk

EXPERT WITNESS JOURNAL

Contact Name: Dorset Orthopaedic Ltd Tel: 01784 744 972 Email: stuartw@dorset-ortho.com Website: www.dorset-ortho.com Unit 11, Headlands Business Park Salisbury Road, Ringwood, Hampshire, BH24 3PB

SUMMER 2019

The Court of Appeal decisions in Marks & Spencer v Palmer [2001] EWCA Civ 1528 and Taylor v Wincanton Group Ltd [B3/2009/0991] suggest that the Courts should be slow to characterise every day features of steps/entranceways as actionable breaches of duty. Both cases stressed the need for realism when considering hazards of this kind that occur widely. If the Claimant was able to establish the breaches of duty alleged, causation was not proven. It was difficult to see how non-slip paint or grip tape would have avoided the accident on the balance of probabilities.

We submitted that in order for the Court to make such a finding it would require:

This is a good example of a case in which design becomes a key feature in respect of whether various British Standards apply to the design of stairs, ladders and walkways. The Claimant's efforts to place fault at the door of the Defendant for the design of the porta-cabin were unsuccessful.

u evidence as to the slip resistance of the surface that

the Claimant encountered u the particular type of non-slip paint/grip tape that should have been applied.

The Claimant's expert did not carry out any objective tests in relation to the first issue and made no specific recommendations in relation to the second issue.

We engaged our expert engineers early in the claim to allow us to ensure that the Defence of the claim was as strong as possible. These efforts were rewarded in the successful dismissal of the claim.

In response to the British Standards cited by the Claimant's expert, we responded that these provide guidance for those who design stairs, ladders and walkways. The Defendant did not design the portacabin in question and in any event, the accident occurred at a door threshold, not on a step.

The claim was handled by Paul Smith, Legal Director, of Clyde & Co LLP, Casualty, London. Matthew Boyle of Crown Office Chambers provided representation at Court.

We were confident in the strength of our defence and proceeded to a final hearing.

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

Mr Nikhil Shah

Dr Khalid Binymin

Consultant Trauma and Orthopaedic Surgeon

MBChB, FRCP, MSc

Consultant Rheumatologist Hononary Lecturer at Liverpool University

FRCS(Tr & Orth), FRCS(Glasg), MCh(Orth), MS(Orth), DNB(Orth).

Consultant Rheumatologist and lecturer. I have over 25 years experience as a doctor. I am the author of two published medical books and the rheumatology chapter of the masterclass book for the Royal College of Physicians. Appointed as the Royal College of Physicians Tutor, Honorary lecturer at Liverpool University.

I provide medico legal reports in personal injury in various conditions - trips, slips, whiplash injury, hip surgery, complex pelvic acetabular fractures, long bone and articular fractures, ankle, lower limb injuries, hip/knee joint replacements, periprosthetic fractures, soft tissue injuries and LVI cases.

I ran various nationwide training courses. Research areas include; SLE, fibromyalgia, rheumatoid arthritis, Psoriatic arthritis, mechanical trauma and back pain. Medicolegal reports have been written for most legal firms in the north west region with great emphasis on punctuality and quality. Personal injury, ill health retirement and medical negligence is major area of work.

I also provide clinical negligence related reports in my specialist area of practice concerning hip and knee replacements, revision surgery, and trauma including pelvic-acetabular fractures. Instructions from claimant/defendant solicitors or single joint expert approximately (ratio 45:45:10). I provide the regional tertiary service in pelvic-acetabular fractures.

Contact Renacres Hall Hospital Renacres Lane, Halsall Nr. Ormskirk, L39 8SE Area of work: Nationwide

Contact: Nikhil Shah, c/o Consultantcare Ltd Jayne Bailey Riverside Centre, Alexandra Hospital Mill Lane, Cheadle, SK8 2PX Area of Work; Manchester, Cheshire and North West

Tel: 01704 841133 Mobile: 07939 540 839 Fax:01704 842030 Email: kbinymin2012@yahoo.com or kbinymin@nhs.net

Tel: 0161 393 3059 Email: nikhil.shah@consultantcare.com Website: www.privatehealthcare.co.uk/privatespecialists/ find-a-doctor/knee-surgeons/nikhil-shah

EXPERT WITNESS JOURNAL

SUMMER 2019

Competition for Commercial Disputes Around the World At the moment the political and legal commentators in the UK are fixated on Brexit. And no wonder. In only a few weeks the UK could see the biggest political and legal in generations. In the midst of that change, many have questioned the future role for London as a hub for international disputes. ness knowledge, independence and respect for the rule of law. While some will point to the attraction of robust disclosure obligations, others will be highlight the significant cost that this generates. The working language is also attractive as it is, for now, one of the most common languages in global business. International litigation hubs

Differences between arbitration and litigation One preliminary question is the difference between a jurisdiction as a centre for litigation (so state endorsed dispute resolution) and as a centre for arbitration. Typically these are seen as very different creatures. So: u Arbitration is seen as quick, whereas litigation is not; u Arbitration is confidential, whereas litigation is not; u Arbitration is flexible, whereas litigation is not; u Arbitration is inexpensive, whereas litigation is not u Arbitration allows you to choose your decision maker, with litigation you cannot. u Arbitration awards can be enforced internationally, where with litigation this can be more difficult.

Look at the new international hubs being opened, and an obvious feature is that the cases can be conducted in English. The flexibility of procedures is highlighted. And increasingly the dispute resolution hubs are seeking to increase their attractiveness by building state of the art technology centres so that costs can be driven down and speed of process increased. These features all seem to reflect an approach that if they are to compete with established hubs such as London or New York then they need to be as good as, if not better than, London and New York when it comes to such things as the quality of judges, independence, efficiency and cost.

In reality, these distinguishing features have become blurred. An arbitration involving an international commercial dispute can be time consuming, follow court like procedures and be very expensive. Courts, in contrast, are keen to point to the flexibility of their procedures, and their focus on resolving disputes in way that is “proportionate” to the nature or value of the dispute.

Pamela Bookman, in her detailed paper entitled “The Adjudication Business” points out that some see this not as a competition between courts, but rather a competition between countries. To compete globally for investment, countries need an effective system for resolving commercial disputes. The rationale is that companies investing into a country need to be comfortable that their investment will be protected by the rule of law, and problems will be resolved fairly.

The English courts have clear rules on proportionality of costs. In accordance with CPR 44.3(2), the court will only allow costs which are proportionate to the matters in issue and will disallow costs which are disproportionate in amount even if they were reasonably or necessarily incurred. Any doubt as to whether costs were proportionately incurred, or are proportionate in amount, will be resolved in favour of the Claimant as paying party. In Arjomandkhah v Nasrouallahi [2018] EWHC B11 (Costs) the judge was clear that he had have regard to all the circumstances in deciding whether costs were proportionately incurred and proportionate in amount, not just the value of the claim.

On one view the creation of these commercial courts is part of the ebb and flow between arbitration and litigation. As arbitration increases in popularity and adopts new processes and technology, so courts respond and do the same. National courts then seek to sell their new streamlined processes, and lure parties away from arbitration. At a policy level however, there should be a continual focus on improving the national court structure in any jurisdiction, if for no other reason than the courts are the only forum that will publicly state what the law is and how it applies in any given situation. That that public statement allows the lawyers and clients to learn and adapt when conducting their business.

London, for decades, has been a hub for international disputes, along with New York. The London Commercial Court was set up in 1895 and developed a reputation for excellent judges, sophisticated busi-

EXPERT WITNESS JOURNAL

SUMMER 2019

Article by John MacKenzie, Partner, Shepherd and Wedderburn LLP www.Interpretations.expert

John is an experienced solicitor advocate, John deals with a range of commercial litigation and has particular expertise in intellectual property and IT matters. He has rights of audience before the Scottish and English courts, appearing regularly before the Court of Session and the Scottish Appeal Court, and is one of the few solicitor advocates to have appeared before the General Court of the Court of Justice of the European Union.

/LairdLanguages @LairdLanguages

John advises on IP infringement issues and in particular online brand protection for clients from a variety of sectors, UK-wide, including energy and utilities, banking, IT and manufacturing. He has considerable experience in leading and managing high value claims backed by third party litigation funders. He sits on the Lord President's Consultative Committee on Commercial Actions. He is also vice-Chair of the ADR Committee of the International Trademark Association.

LAIRD LANGUAGES

Admitted in Scotland and England and Wales. For more information about our Language Langua services contact:

T: +44 (0)131 473 5437 www.shepwedd.com

0845 45 505 9961 language@laird-assessors.com

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

Medical & Legal Admin Services • Medical & Legal Admin Services (MLAS) is committed to providing high quality, maximum efficiency and the best medico legal expertise to both claimant and defendant solicitors. • We deliver the logistical support for some of the most accomplished medical experts in the UK. • We ensure that reports are of the highest quality and deadlines are always met. • If you are a solicitor or insurer and need to secure the services of a medico legal expert look no further. • We provide expertise in a variety of case types including but not restricted to; Persistent Pain, Spinal Injury, Oncology, Obstetric Emergencies, Gynaecology, Orthopaedics and Neurodegenerative Conditions. Services for Experts - We offer an excellent and comprehensive logistics service, that includes managing all communications, travel and diary meetings, administration, finance, marketing and promotion. Contact us to consolidate or grow your Medico Legal practice. Become a Mentor – We will work with Medico legal experts with a mature practice who can help to develop the next generation of medico legal experts, whilst still growing their own practice and increasing their own revenue. Email: enquiries@mlas.co.uk Telephone: 0114 2455423 Twitter:@MedLegAdmin Web: www.linkedin.com/company/mlas - Medical & Legal Admin Services: Registered address: Haywood House, Hydra Business Park, Nether Lane, Sheffield, S35 9ZX.

EXPERT WITNESS JOURNAL

Experts: To work with MLAS contact our Business Relationship Manager Andrew Kwame: Telephone:07562 717854 Email: AndrewOsei-Kwame@mlas.co.uk Solicitors/Insurers: To give instruction please contact: Telephone: 0114 2455423 Email: enquiries@mlas.co.uk

SUMMER 2019

When is Complicated Too Complicated? by John MacKenzie The Shorter and Flexible Trial Procedures were introduced with the express intention of allowing “dispute resolution on a commercial timescale”. The procedures were introduced after pilot schemes. At the time it was said that:

u Trial to be no more than 4 days long. This perhaps speaks for itself. Four days is a lot of court time, but if issues are properly focused and witness statements limited, most disputes should be capable of being resolved in that time.

“The aim of both pilot schemes is to achieve shorter and earlier trials for business related litigation, at a reasonable and proportionate cost. The procedures should also help to foster a change in litigation culture, which involves recognition that comprehensive disclosure and a full, oral trial on all issues is often not necessary for justice to be achieved. That recognition will in turn lead to significant savings in the time and costs of litigation.”

u Judgment to be issued within six weeks of trial. The delay in producing a judgment has long been a source of concern to clients.

Shorter Trial Procedures The main features of the Shorter Trial Procedures are: u Applications are on paper or by telephone. So less time in court. u Disclosure of documents: there should be an issue-based approach and no requirement to volunteer adverse documents. This is a significant change, with Scottish lawyers recognising in particular the “issues based approach”. u Provisions to limit witness evidence. This might be through controlling inadmissible evidence, but might also involving excluding potentially unnecessary duplication.

u A designated judge should try the case where possible. This is perhaps one of the most important features. Where important case management decisions are taken by a judge, those flow naturally into the conduct of the trial. If a different judge has to hear the trial then problems can arise. Dealing with complex cases In the decision of Excel-Eucan Ltd v Source Vagabond System Ltd. There the judge was dealing with an objection that due to the “complexity of the case, the need for disclosure and the likely length of trial” the case was not suitable for the Shorter Trial Procedure. The court was particularly concerned about disclosure, and commented that: “It is the case that courts are encouraged to look with care at the extent of disclosure, the underlying philosophy being that in particular commercial disputes have had a tendency to become bogged down and excessively expensive because of disclosure.

After reviewing the witnesses proposed, and the disclosure requested the judge was content to allow the case to remain in the Shorter Trail Procedure. He was however at pains to emphasise that the decision turned on the facts and circumstances of this case. So unfortunately the answer to the question “how complicated is too complicated” is: it depends!

That of course is not to say that the shorter trial scheme prevents appropriate disclosure taking place simply that the usual rules of Part 31, and in particular standard disclosure, do not apply to the proceedings. Rather, the parties must tailor requests for disclosure which, to my mind, comes some way similar to that which the disclosure pilot is aimed to achieve. The provisions of Practice Direction 51a state that the shorter trial scheme will not normally be suitable for, ‘b) cases which are likely to require extensive disclosure and/or reliance upon extensive witness or expert evidence’. Paragraph 2.4 provides that, ‘The length of trials in the scheme will be no more than four days including reading time’.”

John MacKenzie About John MacKenzie An experienced solicitor advocate, John deals with a range of commercial litigation and has particular expertise in intellectual property and IT matters. He has rights of audience before the Scottish and English courts, appearing regularly before the Court of Session and the Scottish Appeal Court, and is one of the few solicitor advocates to have appeared before the General Court of the Court of Justice of the European Union. John advises on IP infringement issues and in particular online brand protection for clients from a variety of sectors, UK-wide, including energy and utilities, banking, IT and manufacturing. He has considerable experience in leading and managing high value claims backed by third party litigation funders. He sits on the Lord President's Consultative Committee on Commercial Actions. He is also vice-Chair of the ADR Committee of the International Trademark Association.

Disclosure The parties had developed detailed and lengthy statements of case, while the court rules urge simplicity and brevity. Because there were complicated statements of case, it was argued that the case was not suitable for the Shorter Trial Procedure. The judge rejected that argument: “It seems to me that that kind of complexity should not blind the court to the reality of what the shorter trial scheme is about which is whether the case can properly be contained within the trial estimate of no more than four days and whether it truly requires extensive disclosure and/or reliance upon extensive witness or expert evidence.”

Mr Keith Allison Consultant Plastic, Reconstructive and Aesthetic Surgeon MB ChB, MD, FRCS (Eng), FIMC RCS (Ed), FRCS (Plast)

Mr Keith Allison is a Consultant Plastic Surgeon at the James Cook University Hospital, Middlesbrough. He is currently Lead Clinician for Burns, Trauma and Breast Reconstruction and has previously held the post of Clinical Director (2014-2016). Within the NHS, Mr Allison provides a general adult and paediatric plastic surgery service with subspecialty interests of breast reconstruction, microsurgery, skin oncology and trauma reconstruction together with the teaching and training of the future generation of plastic surgeons. Having previously run a successful cosmetic surgery practice in Teesside for 12 years (ending 2017) Mr Allison has extensive experience in facial, nose and eyelid rejuvenation surgery, non-surgical rejuvenation, breast surgery and body contouring surgery. Mr Allison has recently given up his independent cosmetic surgery practice and has established a medico-legal practice concentrating on medical negligence and personal injury. Mr Allison provides expert witness advice and reports for the GMC, Medical Defence Organisations and legal practices. He has undertaken specialist expert witness training and holds the Cardiff University Bond Solon (CUBS) Medico-legal Expert Witness Training Certificate. Contact Name: Perry Starr Tel: 01287 619734 - Fax: 01287 619734 Email: office@allstarrlimited.co.uk Allstarr Limited PO Box 73, Guisborough, North Yorkshire, TS14 9AA

EXPERT WITNESS JOURNAL

SUMMER 2019

Pioneering Study into Female Offenders finds more than 64% of Women with a History of Brain Injury This was funded by the Barrow Cadbury Trust and The Pilgrim Trust. Linkworker experienced improved mood and self-esteem, and enhanced confidence and positivity; key factors that have been previously identified as being essential for a woman to engage in rehabilitative programmes.

The Disabilities Trust, in collaboration with Royal Halloway, University of London, recently announced the results of the first study of its kind into brain injury in female offenders and how a support pathway can be put in place to manage the health, cognitive and behavioural issues which may impact on likelihood of reoffending.

The Linkworker service also offered practical guidance for staff working with women with a brain injury, and alleviated pressure from other service provision (e.g. mental health) with the conclusion that a Brain Injury Linkworker service provides a strong framework which will benefit offenders and prisons to identify and manage brain injury.

A follow-on study by The Disabilities Trust examined the prevalence of brain injury within HMP/Young offenders Institute (YOI) Drake Hall and found that of the 173 women they screened using the Brain Injury Screening Index, 64% reported a history indicative of a brain injury and of those, 96% reported a history indicative of a traumatic brain injury.

As a result of these findings The Disabilities Trust calls for: • The inclusion of brain injury screening as a routine part of the induction assessment on entry to prison or probation services

It is widely acknowledged that traumatic brain injury (TBI) is over-represented in prison populations, with the likelihood of increased risk of violence, earlier age of first incarceration, a greater number of convictions, re-conviction, mental health problems and a greater number of attempts at suicide.

• All prison and probation staff to receive basic brain injury awareness training • The provision of brain injury support; similar to the Brain Injury Linkworker (BIL), in prisons and probation settings

The needs of somebody in prison with TBI are likely to be complex and the lack of understanding and identification of a brain injury results in a higher risk of custody and reoffending.

• Assurance that brain injury support would be aligned with gender-informed practice

In the first study of its kind, carried out from 2016 to 2018, The Disabilities Trust introduced a Brain Injury Linkworker Service in HMP/YOI Drake Hall to provide specialist support to women with a history of acquired and traumatic brain injury.

• Further research to be conducted to examine the potential effect of brain injury on re-offending behaviour, how effective neurorehabilitation can contribute towards the reduction of recidivism and the role of early intervention approaches.

Linkworkers aimed to develop a sustainable pathway of support for rehabilitation and help prisoners to manage the transition between custody and the community.

Case study of Linkworker help: Kylie* While completing a brain injury assessment with Kylie, she reported she had been in a serious road traffic collision and was unsure of the details of what happened to her and what treatment she’d had.

From the women supported through the service, there were 196 reports of severe blows to the head and distressingly, 62% reported they had sustained their brain injury through domestic violence.

With Kylie’s consent, the Linkworker requested her medical records and reviewed the information. During this review, the Linkworker wrote a summary of her medical records with a list of recommendations for staff in light of Kylie’s disability. In a one-to-one session, the Linkworker went through the information with Kylie to increase her insight into her injury and associated symptoms.

Nearly half (47%) of the women had been in an adult prison five or more times and 33% sustained their first injury prior to their first offence. The trauma in the lives of the women with TBI is evident in the accounts provided by interview participants. Some of the accounts and case studies presented in the independent evaluation written by Royal Holloway, University London are distressing to read.

The Linkworker emailed a copy of the medical review and recommendations to staff that work closely with the female offender to make them aware of her disability and how they can adjust their approach to cater for her disability. Prior to this, staff were unaware of Kylie’s brain injury.

It was established that a female Linkworker was sensitive to the gender-specific needs of those being supported. The women who were seen by the EXPERT WITNESS JOURNAL

SUMMER 2019

Due to information in the medical review she was moved to St David’s House and into a single cell where she is getting on much better. The quieter environment allows her to concentrate more; she is now able to complete her own canteen sheet which is something she has not been able to do previously. She is feeling much more settled and happy which has increased her ability to engage with the prison regime. (*name changed_

Dr Emily Glorney, Senior Lecturer at the School of Law, Royal Holloway, University of London, who helped conduct the study alongside Dr Ana Jablonska and Dr Serena Wright. “Women with brain injuries in prison have a high level of complex needs relating to mental health, violence victimization, self-esteem and confidence, as well as offending behaviour. We know from research that there are links between traumatic brain injury, poor mental health, suicidality, and increased risk of violence.

Irene Sobowale, Chief Executive, The Disabilities Trust “The Disabilities Trust is delighted to launch this research, which builds on over five years of research into male offenders and brain injury. For the first time in the UK, we have considered the specific needs and experiences of female offenders, who are some of the most vulnerable in the criminal justice system.

“Therefore, if an aim of sending women to prison is to reduce risk of future offending, it is difficult to think how this aim can be addressed unless we also pay attention to the circumstances that brought these women to prison and their experiences of imprisonment.

The personalised service which we have developed supports women dealing with the impact of their brain injuries, and independent evaluation from the Royal Holloway University London agrees that our Linkworker service within HMP & YOI Drake Hall recognised the gender specific needs of women.

“In or evaluation of the Brain Injury Linkworker service at a women’s prison, we found that the impact of brain injury, psychological well-being, and trauma, are likely to be key considerations in supporting risk reduction, within a gender-responsive approach. “A Brain Injury Linkworker service provides a strong framework to support such an aim.”

There is much more work to be done to ensure that women with a brain injury are provided with effective support to ensure that they can engage in rehabilitation programmes and reduce the likelihood of reoffending. The Disabilities Trust looks forward to working with partners and Government to achieve this.”

Joyce Moseley OBE, Chair, T2A “Earlier research – ‘Repairing Shattered Lives’ by Huw Williams and the University of Exeter – for the Transition to Adulthood (T2A) Alliance highlighted the high level of brain injuries for people in custody and the link between brain injury and offending. The evaluation report by

Psychological Expert Witness and Treatment Service Personal Injury - Clinical Negligence - Employment Tribunal

Dr. Aftab Laher BA (Hons.) MSc PhD C.Psychol. AFBPsS UKCP CSci.

Midlands Psychological Services

Consultant Chartered Clinical & Health Psychologist (BPS) Registered Practitioner Psychologist (HCPC) Accredited Cognitive-Behavioural Psychotherapist (BABCP)

Chartered Clinical Psychologist BA MA PhD AFBPsS Dr Trent is a Chartered Clinical Psychologist with more than thirty years experience initially as a non-commissioned officer in the United States Air Force Department of Mental Health and since 1988 as a private practitioner with Midlands Psychological Services.

Extensive training and experience in the psychological assessment and treatment of adults presenting with psychological injury in the context of accidents, clinical negligence and employment. Clinical issues and conditions covered include adjustments disorders, PTSD, anxiety, phobias, depression, sexual abuse, body dysmorphic disorders, chronic pain, chronic illness/ disability and work-related well-being.

Services provided include direct patient provision, legal assessments, consultancy and contractual services, working with child abuse survivors, interpersonal conflicts, phase of life issues and general mental health/illness conditions. Assessment areas include such child abuse survivors and child risk across all four parameters, including assessment of the offender for risk as well as the partner/spouse to determine the ability to protect, criminal and personal injury issues.

Experience of giving expert evidence in court and tribunals. Trained as a Single Joint Expert. Quality of my court reports have been commended by judges and lawyers. Quick, efficient and sensitive service backed up by a commitment to high standards and ongoing professional training and supervision.

Consulting Rooms: Spire Hospital, Leicester - Nuffield Hospital, Leicester Nuffield Hospital, Derby - Work undertaken nationwide. Contact Details: 54 Asquith Boulevard, Leicester LE2 6FA t: 0116 212 9995 f: 0116 212 9300 m: 07900 916 857 e: al@psyworks.co.uk w: www.psyworks.co.uk

EXPERT WITNESS JOURNAL

Tel: 0121 224 3051 - Fax: 0121 224 3252 Email: mps@midpsych.co.uk - Web: www.midpsych.co.uk Quayside Tower, 252-260 Broad Street, Birmingham, B1 2HF Area of Work: Birmingham / Nationwide

SUMMER 2019

Royal Holloway shows what can be done to support women in the justice system by providing effective services and is a welcome addition to the growing body of evidence on the impact and prevalence of brain injury.”

Dr Gordon Williams Consultant Cardiologist

Georgina Nayler, Director, The Pilgrim Trust “The Pilgrim Trust was pleased to part fund this project and we have been struck by the positive impact the Brain Injury Linkworker has had on the women supported within the prison. Such screening and support should be available to all women in the criminal justice system. This report demonstrates that such understanding and support would improve the women’s mental and physical health and assist them to lead fulfilling lives outside prison.”

MB BCh FRCP FACC Consultant Cardiologist at York Teaching Hospitals NHS Foundation Trust Medico-legal expertise in invasive and non-invasive investigations, diagnostic techniques, coronary artery disease, hypertension, heart failure, adult congenital heart disease and general cardiology Aviation Medicine – Cardiological Adviser to the Civil Aviation Authority Preparing Expert reports since 1985

Subscribe to our Journal we offer discounts for Expert Witness and EWI members call 0161 834. 0017

Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT Email: sandra.ellerbeck@spirehealthcare.com sandra@cardioreports.co.uk Tel: 0113 218 5943 Fax: 0113 218 5987 Mob: 07740 184203 or 07702 550 758

Mrs Robyn J S Webber

Dr Ian Starke Consultant Physician in Stroke Medicine and Geriatric Medicine

Consultant Urological Surgeon

MSc, MD, FRCP.

MD, FRCSEd (Urol)

Dr Starke has been a practising Consultant Physician in Stroke Medicine, Geriatric Medicine and General Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988.

Consultant Urologist based in Fife, Scotland. My medicolegal areas of interests are; personal injury, pelvic and genitourinary trauma, clinical negligence in all aspects of urological surgery, including delayed diagnosis and complications related to implanted surgical materials.

Dr Starke provides expert reports for clinical negligence and medical injury cases in stroke medicine and geriatric medicine and on fitness to practise. He has provided expert examinations and reports for immigration and HM prison services. He is able to assess clients within or outside London. Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net

EXPERT WITNESS JOURNAL

Mrs Robyn Webber P O Box 29237, Dunfermline KY12 2DZ. Tel: 07915 423924 Email: medicalreport@btinternet.com Web: www.robynwebber.co.uk

SUMMER 2019

Exeter Psychologist Receives Prestigious Award for Research in Traumatic Brain Injury A leading Clinical Neuropsychologist from the University of Exeter has received a prestigious award for his work. Professor Huw Williams won the British Psychological Society’s (BPS) Barbara Wilson Award – the highest UK professional award for clinical neuropsychologists. policy makers and the judiciary have been keen to implement our findings. Hopefully to help people can turn their lives around and, maybe less crime.”

His recent work examined links between traumatic brain injury (TBI) and crime, with the results influencing Parliamentary debates and government policy, in the UK and overseas. He had previously shown how survivors of TBI can often develop mood disorders – such as post-traumatic stress – and developed new approaches to treat survivors.

Dr Phil Yates and Prof Williams, BPS Fellowship recipients, have, as Co-Directors of the Centre for Clinical Neuropsychology Research (CCNR), brought clinicians – from the RDE Hospital – and scientists and post-graduate students from the University – to work on developing a better understanding of the causes of TBI, especially in childhood, and its effects on schooling, and the need for services to be developed. But also how staff, in the NHS, who manage trauma, need to be supported.

At an event in London, Professor Williams and Exeter colleague Dr Phil Yates were both awarded BPS Fellowships. “It’s wonderful to receive this lifetime achievement award from the BPS,” said Professor Williams. “It’s especially nice to receive the Barbara Wilson Award because Barbara has been fundamental in changing services for people with brain injuries in the UK and internationally. To give them more hope to get back to work, and have a good family life. And our work, I hope, adds to her achievements.”

Dr Yates, who has also supported national initiatives in clinical neuropsychology training and continued professional development for the BPS Division of Neuropsychology said: “I am delighted to have received this award which is in part testimony to the collaborative approach to research we have undertaken in Exeter to better understand the longer term needs of young people who have sustained head injuries at an early age.

Speaking about his work on TBI and crime, Professor Williams added: “The perpetrators of crime are often – at some early point of life – victims themselves. “Our research has showed that TBI is linked to cognitive emotional problems, violence and drug misuse and higher levels of incarceration.

“We have been able to strengthen links for a range of research projects in a number of areas including mild traumatic brain injury and concussion disorders, brain injury rehabilitation, and the psychological wellbeing of emergency medicine staff.”

“We also showed it was possible to intervene in prisons through brain injury screening and having brain injury “link workers”. It’s heartening that

EXPERT WITNESS JOURNAL

SUMMER 2019

Post-Traumatic Stress Disorder - Contemporary Analysis of Medico-Legal Evidential Issues Hugh Koch, Clinical Psychologist and Visiting Professor in Law and Psychology to Birmingham City University Nkem Adeleye, Lecturer in Tort Law (BCU) Jon Willows and Chris Harrop, both clinical psychologists with Hugh Koch Associates In DSM-5, one of the two main classification schemes of mental disorders (APA, 2013), the diagnosis of PostTraumatic Stress Disorder (PTSD) has undergone multiple, albeit minor, changes. It now comprises four, not three, symptom clusters with the addition of persistent negative beliefs and distorted negative beliefs about oneself, plus a dissociative specifier (depersonalisation and derealization). Overall prevalence of this diagnosis is unlikely to change, but the greater heterogeneity of individuals being diagnosed with PTSD is probable (Zoellner et al, 2013). This paper summarises and discusses the many important medico-legal issues surrounding the PTSD disorder and its diagnosis and implications for both experts and lawyers.

traumatic nature of event; confounding prior history of traumatic events, and the coherence of traumatic experiences and their disruptive nature. The application of the concept PTSD has been further complicated by apparent overlap with other conditions in which a wide array of cognitive, behavioural and emotional symptoms are also present; such as Borderline Personality Disorder. The concept of Complex-PTSD appeared in the clinical literature in the early 1990’s (Herman, 1992) and it helpfully made the link between multiple traumatic experiences in childhood and subsequent clinical presentations in adulthood. Importantly, the array of cognitive, behavioural and emotional symptoms often associated with Borderline Personality Disorder and Psychosis, can then, in some cases, be seen as a way of coping with, and as a reaction to, repeated and cumulative traumatic experiences in childhood.

Experts, psychological and psychiatric, working in civil forensic context provide opinion on the presence or absence of psychological injury on the basis of diagnosis, causation and prognosis. The DSM diagnostic criteria for PTSD have been revised repeatedly since the mid-nineteenth century (Thomas, 2013) with PTSD being referred to as “Psychiatry’s problem child” (Gaughwin, 2008). Difficulties have included: ambiguity about traumatic nature of the event; absence of symptom development after EXPERT WITNESS JOURNAL

Medico-legal implications of these changes and the overall diagnosis itself include the following key areas: Traumatic Stressor definition, differential diagnosis and comorbidity, causation, reliability and validity concerns, the use of legal tests and overall evidential robustness. 42

SUMMER 2019

alleged sufferers though the expertise of mental health professionals and the evidence of the sufferer. Judges may not need to be trained in science to appreciate the extent of the claimants suffering, but can apply legal principles to determine whether liability should be imposed. It is important to consider legal standards of proof and the underlying legal decisions in PTSD claims, the rules of evidence that apply to psychological injury litigation.

As with previous versions of DSM, the new DSM-5 has been criticized for both reliability and validity problems, and PTSD is no exception. For trauma survivors, clinical diagnosticians need to carefully assess pre-trauma functioning and consider that another diagnosis besides PTSD may be equally or even better warranted and have more accurate prognostic opinions. The legal background to PTSD in the context of Tort Law The discourse on post-traumatic stress disorder in medico-legal settings has been centred on the validity and aetiology of this disorder leading to the determination of diagnosis which is required as proof before any court of law. PTSD has been described as a disorder, “that makes a direct causal link between an event and disability,” (McFarlane, 1995).

Tort, Case Law and PSTD A satisfactory definition of tort law remains elusive. Tort is derived from the Latin ‘tortum’ which means twisted or wrong. Tort law is an area of civil law that provides remedy for a victim who has suffered breach of a protected interest. It is the law of non-criminal wrongs, a name given to a diverse collection of legal wrongs. Before liability can be imposed on a defendant by the courts, there must be an act or omission by the defendant, which causes damage including, for example, PTSD, to the claimant. The damage must be caused by the fault of the defendant and must be a kind of harm recognised as attracting legal liability. In summary, there must be an act of omission (intentional on unintentional) by the defendant, which results in the damage of injury to the victim.

The diagnosis of PTSD was only formally included into the diagnostic system in 1980 and accepted as a disorder in DSM-III, resulting from the development of social psychiatry’s investigation of the role of adversity, bereavement and trauma; an increase in crisis intervention literature and the social and political movements of the time such as anti-war movements and feminism.

Negligence is currently the most litigated tort, an area of tort law primarily developed by common law – judge-made law. For a successful claim in negligence, the burden of proof is on the claimant to show that the defendant owes a duty of care, which has been breached and as such has fallen below the standard of care required of them. (Caparo v Dickman, 1990) The claimant must also prove that the defendants’ act is the factual cause (the ‘but for’) test developed in Barnett v Chelsea & Kensington Hospital [1969] and the legal cause (also known as remoteness of damage) of the claimant’s loss or injury as established in Wagon Mound (No 1).

Prior to this time, diagnosis was inadequate in describing the effects of post-traumatic stress. Questions around the accuracy of assessments, whether diagnosis was being applied without precaution, the availability of expert opinion to corroborate evidence and the accuracy of findings from investigation of the aetiology of this disorder, in essence what triggers the onset remained uncertain to this day. Psychologists have expressed the need for quality assurance measures in the medico-legal process to ensure that rights of litigants are protected (McFarlane, 1995). This call for vigilance to avoid the possibility of malingering in the assessment of trauma victims is pertinent, especially where there are indications of missed diagnosis in petitions raised by claimants. These cases of missed diagnosis and unsuccessful claims could be due to the variability of diagnostic skills of expert witnesses, which makes it difficult for courts to accurately assess the emerging issues. With increased reliability and validity of aetiology, diagnosis and treatment of PTSD, the current legal process may not be as hostile and unreceptive to litigants. Although this may have been the case previously, this has led to questions on ethics by the courts. Medical experts and evidence available can contest any myths of malingering.

Shock: ‘Shell, ‘Nervous’ or Understandable Trauma The law did not initially recognise psychiatric injury as basis for a claim in tort until the start of the twentieth century when the works of Sigmund Freud become known in England (Bermingham & Brennan, 2018). There was a general perception that people had more control over their mental state than we now understand. The term PTSD came into use during the first World War (1914) and then the Vietnam War (1960’s), commonly known as ‘shell shock’, subsequently such psychological conditions were referred to as ‘nervous shock’, an indication of a traumatic response to a particular event (Peel & Goudkammp, 2014). The expression nervous shock has fallen into disuse and the term psychiatric injury is now an accepted terminology, with PTSD being one of the severest of the injuries defined.

Generally, the perception was that in personal injury litigation, recovery for damages arising from mental harm or emotional distress was difficult to accomplish due to the rigour of relevant legal definitions and the difficulty in translating diagnoses into legal standards. This is no longer the case. Psychology and psychiatry are no longer viewed as ‘soft sciences’, which implies scientific investigation for which it may be difficult to establish strictly measurable data (Hagen, 1997). It is no longer difficult to corroborate testimonies of EXPERT WITNESS JOURNAL

Despite advances in scientific knowledge of the workings of the human mind, it was also believed that psychological injury was more likely to be fraudulently claimed than physical injury, which is more visible. There was also the concern that such claims present a greater risk of inaccurate diagnosis. The fact is claims of psychological injury can be more readily 43

SUMMER 2019

question of whether a duty of care could be owed under such circumstances. The House of Lords opined that the circumstances of the accident were not such as to cause foreseeable psychiatric injury to a person of normal fortitude, the claimant in this case was entitled to recover on the basis of the “thin-skull rule”. In essence, liability is not limited to the injuries that were ‘reasonably foreseeable’ at the time but also extends to circumstances where the plaintiff has an abnormal susceptibility to injury due to a pre-existing weakness or ailment. The thin skull rule (egg-shell rule) embedded within the principles of legal causation, applies to psychiatric injury in the same way as physical injury.

substantiated and verified by medical evidence than some physical injuries such as whiplash, which can only be substantiated by the word of the sufferer. In Frost v CC South Yorkshire [1997] 3 W.L.R. 1194 at 1217, in addressing fraudulent shock claims, Henry LJ noted that the risks were no higher than ‘cases involving back injuries where there is often a wide gap between observable symptoms and complaints.’ Another reason why courts were hesitant to permit recovery for psychiatric claims are policy considerations – fear of the ‘floodgates’ being opened to indefinite number of legal actions which will be unmanageable by the legal system and burdensome on the state. Considering that the core function of tort law is to compensate the victim by putting them in the position they were in before commission of the tort, the courts are ever mindful of the economic implications of finding fault in cases of claims of psychiatric injury including PTSD. As well as an unwelcome increase in litigation from the point of view of wider social considerations.

Application of Legal Principles In Attia v British Gas [1988] 1 QB 304, Bingham LJ recommended the application of the general legal principles of negligence in psychiatric injury claims involving primary victims. Firstly, it should be established that the claimant is owed a duty of care developed in Donoghue v Stevenson, if the claimant is ‘so closely and directly affected by the defendants act that he ought to reasonably have him or her in contemplation as being so affected when he directs his mind to the acts of omissions which are called in question.’ Where such a duty exists, the next stage would be to apply principles of causation and consider whether the claimant’s psychiatric damage is too remote to be recoverable because it is not reasonably foreseeable as a consequence of the defendant’s careless conduct. That is to say, the damage or injury is not of a type and class which is foreseeable by the defendant.

PTSD and Psychological Injury: Absence of Physical Injury Requirement Previously, mental injury, such as PTSD, unaccompanied by physical injury was not compensable and this non-recovery of compensation for mental injury without the occurrence of actual physical injury was confirmed in Victorian Railway Commissioners v Coultas (1888). The tide shifted with the decision in Dulieu v White (1901), where a pregnant barmaid suffered nervous shock from witnessing an incident, which caused her to have reasonable fear of her physical safety and immediate physical injury even though there was no actual physical impact. The shock she sustained caused her to suffer a miscarriage for which she recovered compensation. Through the development of case law, the law has distinguished between primary victims and secondary victims in psychiatric injury claims. The case of Page v Smith (1996) was novel in bringing questions on psychiatric injury by primary victims to the core. The court identified that applying the test of reasonable foreseeability by the tortfeasor to cases of physical injury was well grounded in law. Considering the definition of personal injuries by with Section 38 of the Limitation Act 1980 (any disease and any impairment of a person’s physical or mental condition), there should be no reluctance to accept a claim for psychiatric injury which is not the simultaneous result of physical injury; the same principles should be applicable in cases of psychiatric injury. Therefore, for a primary victim (a person who has suffered psychiatric injury without physical injury) reasonable foreseeability of physical injury is sufficient to bring with it a duty regarding psychiatric injury. It is not necessary to introduce any control mechanisms to minimise the number of claimants where a primary victim is involved such has been put in place for claims brought forward by secondary victims (Alcock v Chief Constable of South Yorkshire).

In Jaensch v Coffey [1984] 155 CLR 549, an Australian case, Brennan J stated that liability in negligence for psychiatric illness including PTSD is dependent upon the reasonable foreseeability of the precise events leading to the administration of the shock itself and a recognised psychiatric illness induced by it, as well as the causal relationship between the two. (at 566-7) In Brice v Brown (1984), it was confirmed that if psychiatric injury would have been foreseeable in a person of ordinary fortitude, the fact that the plaintiff suffers excessive harm because she was prone to depression is irrelevant to her recovery of damages. The defendants argued against the foreseeability of the extent and precise nature of the mental shock sustained by the plaintiff who had an underlying ailment that was triggered after she sustained minor injury following a collision with an oncoming vehicle in the defendant’s taxi. The plaintiff had a hysterical personality disorder from childhood which manifested occasionally, after the accident her behaviour became erratic and she was hospitalised. The High Court held that the type and kind of injury she sustained (legal causation) is the same as that which could reasonably have been foreseen. The fact that they could not have foreseen the precise name of the mental condition or psychological process as known to psychiatrists, was immaterial.

In Page v Smith, the recurrence of myalgic encephalomyelitis after a road accident where the defendant suffered no physical injury raised the EXPERT WITNESS JOURNAL

In Hoffmueller v Commonwealth [1994] All ER 522, at 533, the plaintiff submitted that as long as the 44

SUMMER 2019

accident was caused by the defendants careless driving, it could foreseeably result in some form of personal injury and it would be necessary to prove that the particular form of injury was foreseeable. The Court did not accept the defendant’s submission, applying the eggshell rule. Once it was established that there was an underlying mental condition and a relapse can be triggered by the trauma of the accident, that the claimant suffered nervous shock as a result, it becomes a foreseeable consequence.

Hugh Koch Associates, established in 1993, provides a comprehensive and independent psychological and orthopaedic assessments service plus access to a psychological treatment service, throughout the UK. Hugh Koch Associates offer expert witness services including psychological, neuropsychological, orthopaedic, and pain Assessments. We offer a rapid assessment of specialists and experts throughout the UK who have been involved in one of the following situations: Personal Injury Types of situation:

Changes in DSM-5 PTSD Diagnosis In order to understand and be clear about the type and extent of PTSD arising from a personal injury, it is crucial to understand how successive versions of diagnosis have occurred.

Road Traffic accidents (car, bike, lorry, pedestrian) Train Accidents (driver, passenger) Work Accidents Medical Accidents Assaults Emotional, Physical and Sexual Abuse

Three main changes are summarised here – 1. PTSD requires exposure to a traumatic stressor, objectively and subjectively. DSM-5 includes indirect exposure e.g. learning that the traumatic event occurred to a close family member or close friend. It also includes experiencing repeat or extreme exposure to aversive details or the traumatic event e.g. first responders; police dealing with child abuse details. DSM-5, however, still does not address the need for corroboration of the traumatic event. There is also a need for pre-trauma functioning assessment in order to get a more complete picture of the presentation and history of the symptoms. There is still the possibility of a variety of interpretations of what constitutes a traumatic stressor, especially around indirect exposure.

Natural Disaster Accidents Refugee and Asylum Seeker Mental Health Problems Brain Injuries Work place stress (bullying, harassment, relationship conflict and workload-related) Health Issues (physical and psychological) including anxiety, depression, drug misuse and chronic pain In addition, we also provide psychological therapy carried out by experienced therapists using up to date treatment techniques such as Cognitive Behavioural Therapy. Telephone: 01242 263715 - Fax: 01242 528299 Email: enquiries@hughkochassociates.co.uk - Web: www.hughkochassociates.co.uk Head Office: Hugh Koch Associates LLP Ground Floor, Festival House, Jessop Avenue, Cheltenham, GL50 3SH

disorders, substance misuse disorder (especially alcohol use disorder) and chronic pain, anxiety disorders and neurocognitive disorders. DSM-5 gives extensive guidance on comorbidity and differential diagnosis between PTSD and other diagnosis.

2. The PTSD symptom clusters have been reorganised in DSM-5, with the introduction of a fourth cluster of negative beliefs and distorted thinking. The avoidance cluster is susceptible to manipulation by the claimants wishing to feign PTSD, with a high social desirability effect. The negative belief inclusion has the potential to increase the overlay between PTSD and depressive disorders, adding to an already high degree of co-occurrence with other disorders.

Ranges of co-morbidity vary but have been estimated in the range of 10-60% (Young et al, 2015). Various theories exist as to why such co-morbidity occurs e.g., mutual maintenance in which developing PTSD induces drinking/drug use that maintains/exacerbates PTSD symptoms.

3. DSM-5 now includes a subtype specifying dissociative reactions to either depersonalisation (“out of body” experiences) or derealization. This subtype implies that these individuals are unique from individuals with PTSD who do not present with these persisted dissociative reactions. They typically show poorer response to treatment. Again because of the risk of fabrication of dissociation, it increases the importance of external corroboration of traumatic event details.

A key area for differential diagnosis which frequently occurs in medico-legal practice in the area of anxiety disorders, in which PTSD is included. Figure 1 (on the next page) illustrates a common decision-making tree for differentially diagnosing one or more anxiety-related disorders. In Personal Injury and Medical Negligence cases, PTSD is a rare diagnosis although stress symptoms per se frequently occur without the full PTSD diagnosis being valid (Furst, Frances and Pincus, 1995).

It is unlikely that DSM-5’s role in legal content will substantially change – it will still retain its place as the main source or method for mental ill health diagnosis. The prudent expert will focus on the functional/behavioural implication of the claimant’s circumstance, not just a diagnosis. This especially applies to PTSD.

Each of these diagnoses has moderately different treatment implications partly in terms of their severity and party in terms of therapy approach (Furst et al, 1995; Koch, 2016).

Co-Morbidity and Differential Diagnosis Several disorders can and do co-exist with the symptoms of PTSD. These include major depressive

EXPERT WITNESS JOURNAL

SUMMER 2019

Each of these diagnoses has moderately different treatment implications partly in terms of their severity and party in terms of therapy approach (Furst et al, 1995; Koch, 2016).

PEI, per se, does not, however, preclude claimants from recovering from their index-related psychological injuries (i.e., eggshell skull rule) but it does behove the expert to carefully unpick pre-event history and immediate post-event history to reliably assess what injury is clearly attributable to the index event, whether this be a de-novo disorder/symptoms or an exacerbation of pre-existing symptoms. This exists in the ever-present context of the claimantâ&#x20AC;&#x2122;s truthfulness or otherwise.

PTSD and Causation When a claimant alleges psychological injury in general, and PTSD in particular, the defence commonly challenges these allegations by introducing pre-existing psychological injury (PEI) evidence (Vallano, 2013). It is likely that many claimants who claim PTSD have PEI. 50% of the population meet diagnostic criteria for a psychological disorder during their lifetime (Moffit et al, 2010). EXPERT WITNESS JOURNAL

Assessing causality of PTSD-related symptoms is highly specialised and fascinating endeavour (Gholizadeh and Malcarne, 2015). There are different conceptualisations of causality in the fields of 46

SUMMER 2019

thoughts (“what might have happened”) and comments from first responders (“you were very lucky, another second and…”) both contribute to subsequent high levels of anxiety but are not necessarily confirmation of criterion A. Other common psychological symptoms, for example, ‘flashbacks’ and ‘intrusive thoughts’ are widely known as labels by claimants but when disclosed do not meet the criteria of semi-dissociative experiences. Dissociative avoidance is common. Common range of diagnostic opinion include Acute Stress Disorder, Specific Phobia (travel) and Somatic Symptom disorder.

psychology and law and especially associated with determining the apportionment of causality across various life factors. Although some level of subjectivity is unavoidable, it is crucial to bring an evidencebased approach and scientific rigour to the causal evaluations required for determining compensation for trauma. In law, causality is not a scientific phenomenon but rather a practical endeavour involving principles like the ‘but for’ test and the material cause(s) relating to an index event. In contrast, in psychology, causation involves a scientific analysis of the multiple underlying mechanisms to describe a phenomenon. Whereas the mental health professional will adopt a biosocial psychological perspective in which “complexity rules”, the lawyer will adopt a more reductional approach, encouraging logical and concise causation analysis.

b. Sexual harassment claimant Allegations of sexual harassment combined with PTSD create a high level of controversy when brought before the courts, with over-simplification of the complexity of the symptom patterns under scrutiny. Harassment is rife with the potential for clinical misunderstanding and litigation-related misuse because it manifests in many forms (Fitzgerald et al, 2013). One key difficulty is the absence of classical criterion A despite a high level of stress and anxiety being associated with the index event. This can result in the use of other non-PTSD diagnoses such as Adjustment Disorders or Anxiety Disorders. An alternative is to utilise the ICD-10 diagnosis of PTSD which is less reliant on the criterion A in DSM-5. However, in the Fitzgerald et al judgement, rather than engaging in an academic, and somewhat arid, debate about the phenomenological reality of the incident and its aftermath, it is better to give a full description of the symptom cluster(s), with causation and prognosis, much of which will be consistent with what we know to be PTSD.

Legal decision making and legal tests The court requires experts and counsel to have credibility and understanding of the applicability of legal tests when discussing psychological disorders such as PTSD. Key phrases which are pertinent include: on the balance of probabilities; ‘But for’; reasonable expectations/Bolam test of negligence. The U.S-based tests worthy of note include the Frye test and the Daubert ruling (Woody, 2016). But what do these tests mean and how do they apply to PTSD? 1. On the balance of probabilities – asking yourself is it more likely than not that situation X or symptom cluster Y would have arisen. 2. ‘But for’ – asking yourself what the likely to probable symptomatic picture would have been if the index event had not occurred.

c. Military post-war zone claimant PTSD is a diagnostic category developed in war zone-type contexts such a post-Vietnam conflict, mid20th Century, and complex psychological and social ramifications were aptly described in films such as ‘The Deer Hunter’. Despite debates about the motivation and personality-type of soldiers and military action, the horrendous types of experience that military personnel experience, makes PTSD criterion A much more likely to be met. Co-morbidity with substance abuse disorders and major depressive disorders in common, and treatment and prognosis is lengthier and more problematic.

3. Frye test – applied to most experts in the U.S, the question asked is does the evidence presented have ‘general acceptance’ in the particular area of professional expertise. 4. Daubert ruling – this added more scientific criteria to Frye and asks whether there is an adequate scientific basis for testimony. ] Three case studies illustrating pertinent diagnostic issues in PTSD The case studies summarised here relate to potential PTSD diagnosis in three very different contexts: a high-speed motorway road traffic accident; a case of sexual harassment; and a military post-war zone case. It is impossible for a single case study to illustrate all potential issues but these three vignettes clarify some of the issues presented in this paper.

Validity and the narrative fallacy DSM-5 alongside clinical and medico-legal practice over the past 6+ years, raises a range of new conceptual, methodological and clinical practice issues when considering the presence or absence of PTSD. Discussions extend to the issue of disorder threshold and the risks of over- or under-diagnosis with associated vulnerability of experts during courtroom testimony as a result (Schultz, 2013).

a. High speed motorway road traffic claimant One of the most common ‘domestic’ type of accident occurring and claimed for. As in case studies a. and b., the PTSD diagnosis rests significantly on the meeting criterion A of life-threatening experience. Most RTAs occur very suddenly and within a second or two have stopped. The claimant rapidly realises he/she is alive, with or without physical injuries. Subsequent EXPERT WITNESS JOURNAL

Low diagnostic thresholds for PTSD means that more people with normal variations of stress will receive a diagnosis of PTSD, with resulting increase rates of false-positives. These may consequently be questioned in terms of legitimacy and reliability.

SUMMER 2019

military combat and captivity, the level of monetary benefits and the fact that research suggests that PTSD is relatively easy to feign, malinger or magnify. Rates of feigning found in research studies can reach as high as 60% (Tolin et al, 2010).

The inclusion of functional/behavioural activities for daily living (ADL) implications of PTSD is an important advantage/issue in DSM-5, alongside social, occupational and recreational function. As in all other areas, this needs reliable assessment, perhaps hampered by lack of psychologist and psychiatrist preparation for Activities For Daily Living (ADL) assessment.

Detection system layers depend on the semistructured interview and consistency evaluation across multi-source information (e.g. medical records; occupational records).

A serious question for experts is to what extent they are influenced by, what is called, the “narrative fallacy” (NF) when assessing the psychological issues of trauma victims. The NF is associated with our tendency to establish logical links between different facts, resulting in over-diagnosis, heightened severity, and negative implications for legal decision makers i.e., at risk of awarding disproportionately high compensation for injury or rehabilitation. Research indicates that claimants are more often assigned a diagnosis such as PTSD if the psychological symptoms had been caused by a traumatic event than if that hadn’t been the case. It was speculated that experts “filled in missing information” and were over-suggestible to justify the assignment of a diagnosis of, for example, PTSD by imagining PTSD-specific symptoms of intrusion and avoidance (Kunst et al, 2016).

Given the pressure to process PTSD claims in a certain amount of time and expense, many experts have to limit the amount of time provided to determine if an individual has PTSD and if this condition is related to a traumatic event or events. Despite these time limits, experts are ethically obliged to perform thorough, accurate and robust evaluation. Because PTSD is particularly easy to fake, expert examiners need to be extra careful when examining claimant claiming to have PTSD. Whilst it is certainly quite possible to simply ‘describe’ a list of symptoms in an assessment situation it is, however, much more difficult to convincingly ‘fake’ the strong emotions that accompany the symptoms themselves. This is especially the case when discussing one’s traumatic experiences with a therapist (and assessor) who will have had a great deal of experience of working with strong, and very real, emotion in the therapy room. The test being that the assessor is considering the degree to which the narrative or the ‘telling’ of the events reflects, and is therefore congruent with, the emotion experienced in the room. By extension this also includes a shared awareness of the ‘shame’ that many feel when they are suddenly emotional in an assessment despite their best efforts to ‘keep a lid on things’.

Despite being trained and experienced in conducting assessments, not all psychologists and psychiatrists are familiar with the specific demand and nuances of medico-legal evaluations (Piechowski, 2015). Misconception about the nature and purposes of these assessment, errors in data collections and use of flawed reasoning in interpretation can reduce the validity of the evaluation. a. Validity is the overall judgement of the degree to which available evidence (empirical and clinical) and theoretical rationale support the interpretations of the expert (Messick, 1995). Many aspects of validity are outside the control of the expert or the court e.g. intentional misrepresentation; less than full effort under examination. Several expert-related validity threats were identified by Piechowski (2015) covering

Recognising Incoherence in Evidence A common medico-legal experience, both with lawyers and experts, is being confronted by a number of apparent or paradoxical clusters of information about trauma with are logically incoherent (Merten, 2017).

a. Conceptual errors: seeing evaluation as more clinical than forensic (Koch, 2018); less objectivity and impartiality; failing to under stand disability as a legal construct; underemphasis on functional capacity.

Typical examples of this involve concurrent chronic pain (with psychological features), dissociative experiences, and exaggeration/magnification of symptoms. Involuntary, unconscious motivation overlap or get confused with conscious manipulation and compensation seeking.

b. Data collection errors: failure to incorporate multiple data sources and over-reliance on self-report.

These logical dilemmas and paradoxes potentially undermine the quality of medico-legal determinations, resulting in incorrect diagnostic determinations and the formulation of logically flawed expert opinion about trauma symptoms or lack of trauma symptoms.

c. Inferential errors: unsupported assumptions about response style and effort; failure to consider alternative hypothesis; confirmation bias; financial/payment bias; under-utilisation of base rates of PTSD diagnosis.

The ‘conscious/unconscious’ dimension is one which confronts experts and lawyers when dealing with trauma assessments and is often linked to the effort paradox linking potential intentions to deceive and effort level during evaluations.

b. Malingered PTSD and Detection systems As with any psychological disorder, PTSD is subject to feigning by claimants and a robust legal system has checks and balances to increase the frequency of fake positives. This requirement is reinforced by the high rate of PTSD found in individuals involved in EXPERT WITNESS JOURNAL

SUMMER 2019

The figure II below illustrates this (Merten, 2017).

It is crucial to understand that the judgement about malingering is not made on the basis of any one simple piece of data (Etherton, 2014). Instead an opinion on PTSD is a decision based on consideration of the full range of data including interview data, data from testing, information from medical records and collateral records, as well as clinical experience. The expert(s) must evaluate any apparent inconsistencies among these sources of information.

Understanding Trauma-related dissociation Chronic dissociative reactions and disorders can occur following traumatic events and can be disruptive and frightening. They include depersonalisation, derealisation, flashbacks, dissociative amnesia and identity confusion. For example, depersonalisation includes experiences such as feeling unreal or emotionally numb, or seeing oneself at a distance, as if in a movie. Dissociation can occur in non-trauma contexts but is most prevalent in disorders linked to traumatic stress. Individuals who have experienced complex trauma i.e. traumatic events that occur throughout an individuals’ lifetime are especially likely to experience dissociation (Brand et al, 2017).

Impact of PTSD on Legal Decision Making Vallano (2013) reviewed how psychological injury evidence impacts on legal decision making and identified the following themes: 1. Courts generally devalue psychological injury making it difficult for claimants to pursue and succeed in these claims.

To avoid inadvertently providing ‘training’ to claimants who are inclined to exaggerate or malinger symptoms, expert assessors should not use professorial language such as ‘dissociation’ or ‘flashbacks’. Many people do not understand the meaning.

2. These difficulties are likely a bi-product of legal decision makers’ misinterpretations of mental disorders. This particularly applies to PTSD.

Malingering occurs in 2-14% of individuals with dissociation. Distinguishing between exaggerated, malingered and genuine dissociative disorders is complicated and feigning maybe partial.

3. Understanding the presence of admissibility of preexisting psychological injury. It is important to understand legal decision makers’ perceptions of PTSD and psychological injury, in general, because these perceptions will affect legal judgements in terms of liability determination (presence/absence of physical injury; severity of psychological injury), and compensatory damage determinations. The frequent underappreciation and difficulty to obtain fair recovery for valid PTSD claims is most likely due to erroneous perceptions about the causes, consequences and legitimacy of PTSD claims (Vallano, 2013). Although legal decision makers may perceive PTSD claims as lacking objectivity, severity, and at times, credibility, these beliefs have little empirical support.

EXPERT WITNESS JOURNAL

Expert resilience in interviewing and evidential robustness Using clinical and collateral interviews and thorough review of records, both lawyers and experts work to provide useful, objective information to the court. They must gather information that contradicts, as well as supports one’s opinion. In addition, collateral sources must be weighed up against self-report data, with evaluators striving for neutrality, logicality and fairness (Wygant and Lareau, 2015). Very often the key psycho-legal question or questions will be clear. Occasionally the instructing lawyer will not have a thorough grasp of the specific issue needing to be evaluated. 49

SUMMER 2019

Merten T (2017). Logical paradoxes and paradoxical constellations in medico-legal assessments. Psychol Inj and Law. 10: 264-273. Messick S (1995). Validity of psychological assessments. Am. Psychol. 50(9): 741-749. Mittenberg W, Patton C, Canyock E.M and Cordit D.C (2002). Base rates of malingering and symptom exaggeration. J. Clin. Expt. Neuropsychology. 24: 1094-1102. Moffitt T.E, Caspi A, Taylor A, Kokava J, Milne B.J., Polarcryk G and Paulto R (2010). How common are common mental disorders. Psychological Medicine. 40, 899-909. Parry, J. and Drogin, E.Y (2007). Mental Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges, and Mental Disability Professionals. Peel, W.E and Goudkamp, J (2014). Winfield and Jolowicz Tort, 19th edn., Sweet and Maxwell Piechowski L.D (2015). Identifying examiner-related threats to validity in the forensic assessment of disability. Int. J. Law Psychology. 42-43, 75-80. Rose N (2019). Fundamental Dishonesty Should Lead to Strike Out Of Whole Claim. Litigation Future. March. Schult I (2013). DSM-5 neurocognitive disorders: validity, reliability, fairness and utility in forensic applications. Psychol Inj Law. 6: 299-306. Thomas L.C (2013). The DSM-5 and Forensic relationship status: It’s complicated. Psychol Inj Law. 6: 324-329. Tolin D.F, Steenkamp M.M, Marx, B.P and Litz B.T (2010). Detecting symptom exaggeration combat veterans using MMPI-2 symptom validity scales. Psychol. Ass. 22(4); 7299736. Vallano J.P (2013). Psychological Injuries and legal decision making in civil cases: what we know and what we don’t know. Psychol Inj and Law. 6: 99-112. Woody R.H (2016). Psychological Testimony and the Daubert Standard. Psychol Inj and Law. 9: 91-96. Wygant D.B and Lareau C.R (2015). Civil and criminal forensic psychological assessment: similarities and unique challenges. Psychol Inj and Law. 8:11-26. Young G (2015). Science, Bias and Continuing to Educate Psychological Injury and Law. 8; 185-7. Zielinski B (2019). Expert Witnesses – Impartiality and Balance. Hertfordshire Law Society Gazette. 14. Zoellner L.A, Bedard-Gilligan M.A, Jun J.J, Marks L.H and Garcia N.M (2013). The evolving construct of PTSD: DSM5 criteria changes and legal implications. Psychological Injury and Law. 6: 277-289.

Given the inherent and significant secondary gain of a PTSD diagnosis in a civil case, the evaluator must be ever-aware of potential distortion in symptom reporting – research estimates that symptom exaggeration occurs between 18-33% of the time in criminal and civil cases (Mittenberg et al, 2002). Any distortion needs to be picked up in order to achieve clarity, objectivity and transparency. The cautious assessor must be aware of the various controversies, diagnostic and other, to be certain not to overor under-diagnose PTSD. Conclusion The diagnosis of PTSD and identifying valid and reliable opinions on causation and prognosis require that both lawyers and experts have a comprehensive and robust awareness of the range of possible opinions, the significance of both reliable and unreliable evidence and the complexity of pre-index event and post-index event causation. Perhaps due to greater quantum implications of a PTSD diagnosis and narrative, greater care needs to be taken in assessing honesty, overstatement of difficulties and differentiating between when a claimant’s motive is to convince rather than deceive (Koch, 2018) and also where one aspect of a claim appears invalid or, in extremis, dishonest whereas other aspects are valid. References: Bermingham V and Brennan C (2018). Tort Law Directions, 6th edn. Oxford University Press Brand B.L, Schielke H.J, Brams J.S and Di Comora (2017). Assessing Trauma-related dissociation in forensic contexts. Psychol Inj and Law. 10: 298-312. Etherton J.L. (2014). Diagnosing malingering in Chronic Pain. Psych Inj and Law. 7: 62-369. Fitzgerald L.F, Collinsworth L.L and Lawson A.K (2013). Sexual harassment, PTSD and Criterion A. Psychol Inj and Law. 6:81-91. Furst M.B, Frances A. and Pincus H.A (1995). DSM-4 Handbook of differential diagnosis. APA. Washington. Gaughwin P.C (2008). Psychiatry’s Problem Child: PTSD in the Forensic Context. Australian Psychiatry OCT., 16(5): 369-70. Gholizadeh S, and Malcarne, V.L (2015). Professional and Ethical Challenges in Determination of Causality of Psychological Disability. Psych. Inj and Law. 8, 344-7. Hagen, M.A (1997). Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of Criminal Justice, Regan Books Hartley, B (2019). Exaggeration Not Necessarily Fundamental Dishonesty. Expert Witness Journal. Spring. 33-34. Herman, J (1992). Trauma and Recovery. Basic Books Koch H.C.H (2016). Legal Mind: Contemporary issues in psychological injury and law. Expert Witness Publishing. Koch H.C.H (2018). From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. Expert Witness Publishing. Koch HCH, Solomon E, Sutton E and Molloy J (2019). Psychological Injury in Clinical Negligence Cases. What needs consideration? Expert Witness Journal. Spring. Kunst M.J.J and Wiel M.V (2016). Evaluating the relationship of expert evidence in compensation procedures. Psychol Inj Law 9: 265-271.

Cases: Alcock v Chief Constable of South Yorkshire [1992] 310 Attia v British Gas [1988] 1 QB 304 Barnett v Chelsea and Kensington Hospital [1969] 1 WB 428 Brice v Brown [1984] 1 all ER 997 Caparo v Dickman [1990] UKHL 2 Donoghue v Stevenson [1932] AC 562 Dulieu v White [1901] 2 KB 669 Frost v CC South Yorkshire [1997] W.L.R.1194 Hoffmueller v Commonwealth [1994] All ER522 Jaensch v Coffey [1984] 155 CLR 549 Page and Smith [1996] 1 AC 155 Victorian Railway Commissioners Coultas [1888] UKPC 3 Wagon Mound No. 2 [1967] 1 AC 617

McFarlane, A.C (1995). PTSD in the Medico-Legal Setting: Current Status and Ongoing Controversies, 2 Psychiatry Psychol. And L.25. EXPERT WITNESS JOURNAL

SUMMER 2019

In a Foreign Land Expert witness: “A person whose level of specialized knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.” (Oxford English Dictionary). An expert witness called in criminal proceedings has a duty to the court to help it to achieve the overriding objective, defined in the Criminal Procedure Rules as “dealing with cases justly. This includes “acquitting the innocent and convicting the guilty; …The overriding objective acknowledges that the presumption of innocence and a robust adversarial process are essential features to our legal system.” They do so by giving opinion which is objective and unbiased, and within their area or areas of expertise as defined by themselves in their reports to the Courts and in their evidence in person at trials.

walking into a foreign land in which lawyers were asking for help to use the art and science of psychology to answer legal questions, but in which familiar words can have unfamiliar meanings and the basic assumptions about how human beings function can be quite different. It is an adversarial world in which the questions asked of a psychologist might not necessarily be those that a psychologist can or could answer and the answers given may be interpreted in different ways from those intended. What follows are therefore traveller’s notes. Looking back over the last two to three years’ cases, about half have been concerned with questions about learning disability, either pre-trial or pre-sentence. A further substantial group of cases concerned actual or alleged sexual offences. A small but interesting group of cases arose from charges of ‘failure to provide a sample’ when being investigated for drunk or drugged driving, the failure resulting from a range of phobic and anxiety symptoms. Amongst the other cases, assessments of dangerousness have presented particular problems. I see each as raising questions that need much wider discussion.

That apparent welcome to experts’ contributions is not unlimited. A trial judge may be asked to rule that an expert witness’ evidence is inadmissible. That is because expert evidence is only admissible if the court is satisfied that it would provide information which is likely to be outside a judge or jury’s experience and knowledge, and which would give them help that they need in arriving at their conclusions. It must also be given by a person who is qualified to do so and the evidence must be sufficiently reliable to be admitted. Expert witnesses are also required to confirm that they have acted in accordance with the code of practice or conduct for experts of their discipline.

The cases came to me because of my expertise as a clinical psychologist. There are forensic psychologists. According to the British Psychological Society: “Forensic psychology deals with the psychological aspects of legal processes, including applying theory to criminal investigations, understanding psychological problems associated with criminal behaviour, and the treatment of criminals.” But on the whole forensic psychologists work in prisons or with offenders, with expertise appropriate to those settings and populations. Few will have the breadth of clinical training and experience with the general population which, as a clinical psychologist, is the expertise that I am able to bring to cases.

In short, an expert witness’ value to the court is in their willingness to offer trustworthy expertise, not in their knowledge and experience of the criminal justice system, and they are not to take it personally if their contribution is not used or not usable. I qualified as a clinical psychologist in 1974 and I have been in practice continuously since then, in the NHS until 2002 and in my own company since then. I am also an accredited cognitive behavioural therapist. My early experiences as an expert witness were in relation to personal injury cases, before the expert witness agencies took over the relationship between solicitors and the experts they instructed. From a psychological point of view most cases were straight forward, requiring an assessment of the nature and severity of the person’s response to some traumatic incident. Occasionally I was instructed in clinical negligence and family cases but I had not anticipated the demand for reports on defendants in criminal cases. Although the Courts want and need expert opinions there is no system for ensuring that a requisite expert is available; it simply seems to be assumed that experts will be found if and when needed, a somewhat optimistic approach one might think. I therefore set about getting myself ‘up to speed’ on the expectations of expert witnesses in criminal cases and the procedures to be followed. Little did I realise that I was EXPERT WITNESS JOURNAL

The Mental Health Act defines "learning disability" as "a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning." In practice that translates into: significant impairment of intellectual functioning (conventionally IQ 70 or below; average IQ is 100); a history of impaired adaptive / social functioning (including the skills required for independent living); age of onset before adulthood. Instructions to assess whether a person has a learning disability may arise pre-plea, pre-trial or presentence. It has to be admitted that the assessments that can be undertaken, particularly when the defendant is on 51

SUMMER 2019

the range within which they are 95% certain to score.

remand and is assessed in the legal visits area of a prison, are briefer and more superficial than those that would be undertaken in the NHS. From a psychological perspective they are more of a screening test than a thorough assessment, but that is usually adequate for the purpose. IQ tests can be undertaken provided the defendant can concentrate under those circumstances. Assessments of lack of effort during testing are often not feasible. Unless there is an opportunity to meet the defendant’s partner or a family member outside the prison to gather information about the defendants to date, information from their medical record has to stand proxy for an assessment of their adaptive and social functioning and age of onset. In practice many defendants have had a history of special education but were not specifically identified as having a learning disability during their school days. Do defendants give honest accounts of their lives under those circumstances? If their solicitor and the psychologist prepare them for the assessment, in my experience they do. However it is very important to receive and read the prosecution papers and the defendant’s medical records before meeting them. I have found that deliberate attempts to give me false information can be detected but deliberate withholding of potentially prejudicial information is very difficult to detect.

Before a defendant is required to plead to the charges they face, a Court may need to decide whether a defendant is ‘under a disability’ i.e. whether he or she is "unfit" to plead, and will do so (with the advice of expert witnesses) by reference to the Pritchard criteria. Restated by a judge in more modern language, these pragmatic criteria require that in order to be fit to plead (and if pleading Not Guilty, stand trial) a defendant must be able to: comprehend the course of proceedings of the trial so as to make a proper defence; know that they might challenge any jurors to whom they may object; comprehend the evidence; and give proper instructions to their legal representatives. It is the last two criterion which tend to prompt the instruction of a psychologist. In 2016 the Law Commission published a review of ‘Fitness to Plead’ with recommendations which have not yet been implemented. In the meanwhile, few defendants demonstrably fail to meet those criteria so clearly that a Court will accept them as ‘unfit to plead’. One recent development that has enabled Courts to try people with learning and related disabilities has been the use of intermediaries with vulnerable defendants. Learning disability is not simply a matter of limited understanding; vocabulary, memory, ability to put thoughts into words, speed of processing information, all these are impaired by comparison with the average person. As I have seen for myself, by facilitating the communications between the Court and the defendant, intermediaries undoubtedly improve the efficiency and fairness of trials.

But the technology of assessment, so long as it is sufficient for the purpose, is less of a problem than relating the results to the legal questions. For example, some lawyers still like to use the concept of ‘mental age’ as a way of quantifying immaturity and lack of experience, although from psychologists’ point of view it is a metaphor not a measurement. The current approach is to compare the defendant’s scores with the scores of a group of people in the same age range. An individual may have scores that fall within a wide range from Extremely Low to Very Superior. Most people, however, perform within the Average range. Usually a percentile rank is also reported. This shows where the person's scores rank relative to the comparison group. For example, if the percentile rank is 45, it would mean that the person tested had scored higher than approximately 45 out of 100 other people his or her age.

Some instructions concerning people who may have learning disabilities have included the question, “in your opinion is he or she capable of forming the intention to have committed the alleged offence”? It is not feasible to address the relationship between learning disability and criminal responsibility in this article. Suffice to say that it is an issue where the conceptual gulf between the psychology implied by legal concepts and the psychology of psychological science is probably the greatest, and likely to become greater owing to the oncoming tsunami of findings from neuroscience research. Generally speaking, the presumption that the majority of defendants are sufficiently rational, socialised into society and mature enough to be aware of social norms, to be able to choose whether to observe them or not, and to have the capacity to control their own behaviour, works well enough most of the time. But research is showing that presumptions of consciousness, choice, and control do not apply in any straightforward way to an increasing range of people including those with learning disabilities. When it is recognised that ‘state of mind’ can no longer be taken to indicate a ‘guilty mind’, a reconceptualization of the basis for justice will be required.

Diagram below Distribution of IQ scores in the general population

During my career as a clinical psychologist the system of services for people with learning disabilities has radically changed with, it is said, the unintended consequence that the prison population now contains a

Scores are often reported with a Confidence Interval because people may score slightly higher or lower if tested again on a different day. The interval indicates EXPERT WITNESS JOURNAL

SUMMER 2019

terpret the evidence presented to them, both about the defendant’s behaviour and that of the victim. In many of the cases in which I have been involved the defendant has been advised to plead Guilty to a lesser charge in order to get the consequent benefit of the reduction in sentence and to avoid a moral spasm on the part of a jury hearing their case. As a consequence there is no trial. Change sentence to Even an offender who may have been innocent of the original charges will be placed on the sex offenders register, with significant impact on their life. The lack of a trialof the evidence has two further consequences. In the case of alleged rapes and sexual assaults, particularly historical allegations, the veracity of the memories on which the case is based is not examined. There has been a great deal of psychological research on memory in general and specifically on memories of traumatic events; whether the findings of that research would be of value to the prosecution or the defence would depend on the specifics of the case. The point is, as a consequence of the Guilty pleas, psychological knowledge which might be of considerable value to the courts is not being introduced into trials.

significantly higher proportion of people with learning disabilities. Further, there is a known paradox that NHS and social services are now so limited that arrest by the Police may be the quickest or even the only way that services can be prompted to consider a person’s needs. So requests to screen a defendant for learning disability inevitably raise the question, what is the purpose, what will this assessment add to legal process? Section 142 of the Criminal Justice Act 2003 specified that the purposes of sentencing are: “the punishment of offenders; the reduction of crime (including its reduction by deterrence); the reform and rehabilitation of offenders; the protection of the public; andthe making of reparation by offenders to persons affected by their offences.” Pre-sentence reports are sought primarily in relation to mitigation of sentence, although some raise the question of dangerousness. In my experience both are problematic. Sentences after problematic to read ‘Dangerousness has a specific meaning in law. However there are certainly offenders from whom the public need protection because of their idiosyncratic beliefs and their self-centred willingness to use horrendous forms of deception and violence to meet their own needs. But for many people, including many of those with learning disabilities, dangerousness is situational. For example, they are dangerous when they are being used by other people abusing their vulnerabilities, or when relying on drink or drugs to help them cope with their own deep-rooted problems, or when they take the line of least resistance when they simply don’t understand the situation they are in. For such people, their dangerous behaviour reflects the lack of external influncers to ensure that they understand the wider consequences of their behaviour. For such people , their dangerousness may be mitigated by welfare support and rehabilitation (which, it has to be admitted, is not always open to them.’ Whether a prison sentence really constitutes a defensible punishment is psychologically problematic. For those offenders whose capacity to live independently is limited, even a short prison sentence can undermine that independence by promoting dependence on the prison facilities and routine and even institutionalisation. It also exposes them to abuse and sometimes training in criminal behaviour by other prisoners. On the plus side, a number of those whom I have assessed have spoken warmly of the education in reading, writing and arithmetic they have received while in prison.

The typical procedure used by ‘paedophile hunters’ is based on deception and is as follows (I quote from darkjustice.co.uk, originally accessed on 30th May 2017). The aim of the organisation is to catch online predators who try to groom & meet up with minors following sexual grooming. They set up a fake profile of an under-age teenager (whom they term “a decoy”) complete with a convincing photograph on an on-line dating site and wait for messages. When they receive a message, they reply straight away and tell the contact that they are underage. They say that they always try to avoid sexually explicit conversations with contacts by claiming to act young and uneducated on the subject. They intend never to encourage sexual chat or sexual behaviour. So when the contact eventually proposes a meeting they suggest a place to meet where they know they can control what is going on. When the contact confirms that they will attend and the ‘hunting’ team spots them, the ‘hunters’ phone the police and report the crime. They confront the contact with cameras, and ask them about their actions and intentions. As soon as the contact is arrested the hunters go to the police station to make statements. If a contact proposes a meeting with the decoy but doesn’t show up for it, the hunters still hand their evidence to the police to be investigated. The ‘hunters’ say they have found that nearly everyone who proposes a meeting following what is described as ‘sexual grooming of a minor’ turns up. The meeting is the critical element in the procedure set up by the ‘paedophile hunters’ because arranging a meeting is taken to demonstrate the alleged paedophile’s intention to commit an offence. But even those who do not turn up are reported to the police because as soon as they arrange the meeting it is a criminal offence, whether they show up or not.

Turning to cases of alleged and / or admitted sexual offences in which I have been involved, some have prompted me to think that psychologists are not being used to best effect. The cases have included rape, recent and historical, actual and statutory, and an increasing number of cases resulting from the activities of so-called ‘paedophile hunters’. Allegations of sexual misconduct or violence often generate an emotional response in those who have to deal with them, and rightly so. And it is now well known that there is a concern about how juries will inEXPERT WITNESS JOURNAL

The ‘hunters’ have undoubtedly uncovered some dangerous offenders and no doubt they believe that 53

SUMMER 2019

ficulty breathing into the CAMIC machine owing to hyperventilation or a panicky tensing of the chest muscles. People are asked in those circumstances whether they have any medical condition which accounts for their difficulty in allowing blood to be taken but may say ‘no’ because they do not think of fear or a phobia as a medical condition. Some people even have difficulty providing a sample of urine because of an obsessive-compulsive disorder focused, for example, on cleanliness or the use of specific rituals. The result is a charge of ‘failure to provide’ and sometimes a request by the Defence to a psychologist for an opinion as whether the fear or phobia was so severe as to constitute ‘a reasonable excuse’ (as the law puts it). Sometimes the answer is in the defendant’s medical record. Sometimes it is necessary to elicit the fear directly in the consulting room. Either way, the problem might have been avoided by the use of the specialist skills of some doctors and nurses who have almost imperceptible ways of taking blood and other samples.

the end justifies their means. Nonetheless through the cases in which I have been involved I have noticed that the deceptions used are flawed. The dating sites have a rule that no one under the age of 18 is permitted to use the site. Someone using the site and coming across a profile of a 14 year old boy or girl therefore has to make sense of what is going on. For example, some report that people on dating sites sometimes play sexual games in which an adult pretends to be an under-age child; they assume that they are messaging just such a person. Others assume that they are messaging a genuine 14 year old and seek to find out what the youngster hopes to achieve by doing so. What most notice is that, unusually, their messages are always answered. For those men who are socially isolated, or socially incompetent, or who have an autism spectrum disorder, the continuity of contact is particularly welcome. But what do they have in common with a 14 year old girl that they can message about? Only sex and sexual relationship issues come to mind, so it seems. And if they go on to propose a meeting, contrary to their previous attempts to meet women, to their delight the answer is ‘yes’!

As an observer and occasional participant, travelling in the foreign land of the criminal justice system, what do I think clinical psychologists have to offer that would help Courts to meet ‘the over-riding objective’? Firstly, I disagree with those lawyers who think that psychologists’ evidence is inadmissible because it does not provide information which is likely to be outside a judge or jury’s experience and knowledge. The problem is that people do not know what they do not know; until more psychologists are called to give expert evidence, the criminal justice system cannot benefit from advances in psychological science.

But those are common sense issues. They only become relevant to this discussion when the case against the defendant places particular emphasis on statements made in messages which are being taken out of context. The context is a text consisting of a sequence of mobile phone messages, sometimes made over a period of many days or weeks. Psychologists and researchers in many other disciplines have developed thorough methods for analysing texts which are not routinely brought to bear on these exchanges of messages. However even a superficial analysis shows that what is going on is not as simple as the ‘paedophile hunters’ suggest. For example, the absence of refusal to respond to improper suggestions can come across as permission to continue, even as a willing acceptance that the conversation is going that way. And when the ‘hunter’ in the guise of a 14 year old girl re-initiates contact after a break in the interaction, it is perhaps not surprising that the contact perceives it as interest and evidence of some kind of relationship. In short, it has sometimes seemed to me that the ‘hunter’ has offered the defendant an opportunity to commit an offence which they would not otherwise have committed and then (perhaps inadvertently) induced them to do so. But that is not explored when there is no trial, owing to a Guilty plea.

Lawyers seek to infer intention from a defendant’s verbal and non-verbal behaviour. In order to identify and provide therapy for their client’s psychological problems, clinical psychologists have also needed to develop ways of drawing inferences. We call the process ‘formulation’. Information is gathered from a range of sources and integrated in a way which permits predictions to be made about the potential impact of therapeutic interventions. The following is one of a number of simplified summaries of the elements of a formulation.

On a different topic, a phobia is a disorder of fear characterized by a marked and excessive fear or anxiety that consistently occurs when exposed to one or more specific objects or situations (such as hypodermic needles or the sight of blood) and that is out of proportion to the actual danger. The phobic objects or situations are normally avoided or else endured with intense fear or anxiety. But can they still be avoided at a Police station after arrest on suspicion of driving when drunk and the person is required to provide a sample of blood for analysis? And other fear phenomena can emerge in that situation, such as difEXPERT WITNESS JOURNAL

SUMMER 2019

may enable Courts to reach decisions which are seen to be fair and match the complexity of the situations they have to address.

The procedure should be just as valuable when the presenting problem is behaviour that constitutes an offence. Where it seems to differ from current practice in the criminal justice system is that it recognises the interactions between the person and their social environment rather than locating the origins of a person’s behaviour entirely within their own impulses and intentions. It is also different to the aims and outcome of ‘diagnosis’. Most diagnoses are based on a categorisation of the person’s signs and symptoms, not on the causes of the condition thereby diagnosed. Post traumatic stress disorder is an exception because the cause is known to be a traumatic incident. The Power Threat Meaning Framework published by Johnstone, Boyle and colleagues at the beginning of 2018 is a development out of research on responses to trauma. It summarises and integrates a great deal of evidence about the role of various kinds of power in people’s lives; the kinds of threat that misuses of power pose to us; and the ways we have learned as human beings to respond to threat. It also looks at how we make sense of those difficult experiences, and how messages from the wider society can increase our feelings of shame, self-blame, isolation, fear and guilt leading to psychological pathologies. The way in which the approach is used has been summarised as follows’ to ‘has been summarised by Johnstone and her colleagues as follows:

Finally, as I noted at the beginning of this article, the demand for psychological assessments originally came from defence solicitors, often at quite a late stage in the legal process. Assessments undertaken as a matter of routine at an earlier stage could be contributing to a more efficient use of Court time and custodial facilities. NHS Court Liaison and Diversion schemes may offer an organisational framework through which such assessments could be commissioned and potential defendants sign-posted through to clinical psychologists with the requisite skills and experience to undertake them. Reference: Johnstone, L. & Boyle, M. with Cromby, J., Dillon, J., Harper, D., Kinderman, P., Longden, E., Pilgrim, D. & Read, J. (2018). The Power Threat Meaning Framework: Towards the identification of patterns in emotional distress, unusual experiences and troubled or troubling behaviour, as an alternative to functional psychiatric diagnosis. Leicester: British Psychological Society. (Free download via the internet). Mr. Bernard J B Kat Chartered Health & Clinical Psychologist BA, MSc, CPsychol, FBPsS Mr Kat qualified as a clinical psychologist in 1974. He is reg-

Instead of working through a checklist of signs and symptoms in order to arrive at a diagnosis, ask your client:

istered as a health psychologist and as a cognitive behavioural psychotherapist. Mr Kat has been providing expert witness reports in the North East of England for Courts

• ‘What has happened to you?’ (How is Power operating in your life?)

Tel: 0191 230 6461 - Mobile: 0788 799 8375 Email: b.kat@psynapse.co.uk - Web: www.psynapse.co.uk

• ‘How did it affect you?’ (What kind of Threats does this pose?)

Mrs Serena Nathaniel-James

• ‘What sense did you make of it?’ (What is the Meaning of these situations and experiences to you?)

Cognitive Behaviour Therapist and Psychologist B.Sc, M.Sc, M.Sc, MBPsS

• ‘What did you have to do to survive?’ (What kinds of Threat Response are you using?) [Note: these responses can become the basis of pathology]

Mrs Serena Nathaniel-James is a BABCP Accredited Cognitive Behaviour Therapist & Psychologist based in London but works throughout the UK. She works in the NHS.

In addition, to help think about what skills and resources a defendant might have, and what it all means to them:

Mrs Nathaniel-James has diverse experience in the application of CBT in the fields of general adult mental health and the specialist field of neuropsychology. Her extensive experience comprises of the treatment of depression, anxiety, PTSD and other emotional difficulties. She has experience in the assessment and treatment of emotional problems in people who have suffered an acquired head/brain injury.

• ‘What are your strengths?’ (What access to Power resources do you have?) • ‘What is your story?’ (How does all this fit together?) I have also thought that because the law and the Courts focus on an individual’s criminal responsibility, they seem to struggle with issues which fundamentally arise from interactions between people. I refer to issues such as duress, coercion, provocation, retaliation, deception and the whole range of issues arising from victims reacting to domestic, emotional and financial abuse. These are big topics and I have been involved in very few cases but I believe that it is important for Courts to know that the psychological study of the use and misuse of power and control is there to be drawn upon. Findings from that research EXPERT WITNESS JOURNAL

Mrs Nathaniel-James holds the Cardiff University Law Expert Witness Bond Solon Certificate. She has been involved in preparing expert reports for the Court since 2010, averaging twenty a year on behalf of Claimants and Defendants with a 40/60 ratio split. She regularly undertakes legally aided cases. Mrs Nathaniel-James Tel: 0207 467 8300 Mobile: 07904 570 272 Email: s.nathanieljames@gmail.com Web: www.psyrelief.co.uk Address: 10 Harley Street, London W1G 9PF

SUMMER 2019

“Patient has flashbacks and bad dreams. Surely she has PTSD?” Uses and abuses of the PostTraumatic Stress Disorder diagnosis by Serena Nathaniel-James, Cognitive Behaviour Therapist & Psychologist In the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Post-Traumatic Stress Disorder (PTSD) is classed as a trauma and stressor related disorder, which can arise from exposure to actual or threatened death, serious injury or violence. The ‘exposure’ can be in the form of a direct experience, witnessing in person, learning of actual or threatened death of a family member or a friend (although the event must be violent or accidental), or experiencing repeated or extreme exposure, for example, of the kind some police officers experience when faced with the aversive details of traumatic events.

found to be positively correlated with over-reporting of symptoms. It is not surprising that an individual labeled as a PTSD sufferer by his GP or another clinician will incorrectly attribute his symptoms to PTSD which may or may not be the case. It can be easily envisaged how a person who is vulnerable to hypochondriacal worry would then develop a preoccupation with the diagnosis of PTSD, leading to a secondary problem. From my experience many NHS services and private therapy providers heavily rely on the use of the Impact of Life of Events Scale–Revised (IES-R) in their assessment of possible PTSD. This scale was first introduced in 1997 and although it is only meant to be an aid in a clinical assessment, it is used incorrectly by many to diagnose PTSD. IES-R is the revision of the Impact of life of events scale (IES) which is based on Horowitz’s model of emotional processing following a trauma (Horowitz, 1976). Not so long after the publication of IES, PTSD was introduced into the DSMIII. However, the DSM-III conceptualisation of PTSD was rather different to Horowitz’s information processing model. The IES-R like its predecessor, continues to retain its main emphasis on assessing intrusions and avoidance, underlying the purpose of the development of this scale. A detailed critical review of the IES-R is beyond the scope of this article. Nonetheless, the key points to understand here are that this instrument is only meant to be an aid in clinical assessment and the differences in the conceptualisation of psychological symptoms and experiences associated with PTSD that exists between the IES-R and DSM. The use of IES-R as a “diagnostic instrument” for PTSD as I have come across in numerous medico-legal reports, betrays an expert’s poor understanding of what PTSD really is.

In contrast, the previous diagnostic criteria for PTSD on the basis of the DSM-IV-TR, included that the person was exposed by experiencing, witnessing or was confronted with the event/s involving the actual or threatened death or serious injury, or a threat to the physical integrity of self or others. Furthermore, the person’s responses needed to involve a significant degree of intense fear, helplessness, or horror. This change in PTSD criteria from DSM-IV-TR to DSM 5 has allowed the diagnosis to be expanded and over the last 5 years or so, there has been a sudden rise in the use (and abuse) in my view, of the term “PTSD.” In both my medico-legal and treatment work, I frequently come across for example, GP notes where patients’ symptoms are noted using terms and descriptors such as “flashbacks”, “nightmares,” “not sleeping since the accident”, “patient has PTSD.” The same gets repeated in referral letters to NHS psychological therapy services and private providers. To compound the problem, novice clinicians, or those with little knowledge and experience, tend to adopt a simple cause and effect approach leading to the idea that trauma is the only cause of these symptoms. One important and major criticism of the DSM 5 diagnostic criteria for PTSD is the use of the word ‘traumatic’ as it is not clear what is meant by this (Breslau and Kessler, 2001).

As aforementioned a diagnosis of PTSD cannot be made just on the basis of symptoms. An important reason for this is because some of the symptoms ‘associated’ with PTSD are also to be found in other conditions such as Borderline Personality Disorder, where childhood trauma is a common although not a universal feature of this disorder. Furthermore, these same people can experience symptoms of intrusion, avoidance and hyperarousal, despite not meeting the diagnostic criteria for co-morbid PTSD

Research in the area of illness belief indicates that diagnosis can lead to a misattribution of symptoms. Illness belief comprises individual’s views on identity, consequences, timeline, controllability and causal attribution of their health condition (Leventhal et al. 1998; Leventhal et al. 1980). Illness belief has been EXPERT WITNESS JOURNAL

SUMMER 2019

igation, experts (and those instructing them) need to keep an open mind about the Claimants’ psychological symptoms as what is being reported could be due to another psychological condition and not PTSD!

(Oldham et al, 2010). Symptoms such as intense anxiety, fear, avoidance and hypervigilance can also be part of other disorders such as specific phobia, agoraphobia and panic disorder (this list is not exhaustible) all of which can be a psychological consequence of other significant events such as a road traffic accident.

References Breslau, N., Kessler, R.C. (2001): The Stressor criterion in DSM-IV posttraumatic stress disorder: an empirical investigation. Biographical Psychiatry; 50;699-704.

The PTSD academic literature firstly suggests that most people, even when exposed to severe trauma, never develop PTSD (e.g. Paris, 2000, McNally, 2009). McNally also suggest that those who do, usually have past symptomology. Of particular note is the finding that PTSD reflects more about the intrinsic sensitivity than a reaction to a life-threatening event (Robert et al. 2012). This is supported by the much earlier work of McFarlane (1989) who showed that PTSD in firefighters was best predicted by neuroticism traits prior to the exposure rather than by the severity of fires. This indicates the importance of personality factors and within that, the possible role of personality traits which make up psychological resilience.

Leventhal, H., Leventhal, E.A., & Contrada, R.J. (1998). Self-regulation, health and behavior. A perceptual -cognitive approach. Psychology and health, 13 (4) 717-733. Leventhal, H., Meyer, D. (1980). The common sense model of illness danger. In S. Rachman(Ed.), Medical Psychology, Vol 2 (pp. 7-30). New York: Pergamon. Paris, J. (2000): Predispositions, personality traits and posttraumatic stress disorder. Harvard Review of Psychiatry 8:175-183. McNally, R. (2009): Can we fix PTSD? Depression and Anxiety. 26:597-600. Roberts, A.L., Dorhend, B., Aiello., A.A. (2012): The stressor criterion for post-traumatic stress disorder-does it matter? Journal of Psychiatry 73:264-270.

It is not incomprehensible that most people do not develop PTSD after traumatic experiences. For example, childbirth could prove extremely traumatic for the mother as it can be potentially life threatening and yet most women do not develop PTSD despite experiencing significant anxiety about the delivery. A review and meta-analysis of 59 studies of the prevalence of PTSD during pregnancy and postpartum showed that only 4% of women develop PTSD after birth (Dikmen Yildez et al.). This every day phenomena says a lot about the inbuilt strength of human beings to be able to cope with potentially life-threatening experiences and individual differences in response to life events.

McFarlane, A.C., (1989): The aetiology of post-traumatic morbidity: predisposing, precipitating and perpetuating factors. British Journal of Psychiatry 154:221-228. McNally, R.J., (2003): Remembering Trauma. Cambridge, MA: Belknap Press/Harvard University Press. Dikmen Y.P., Ayers S., & Philips, L. (2017). The prevalence of post-traumatic stress disorder in pregnancy and after birth: A systematic review and meta-analysis. Journal of Affective Disorders, 208: 634-645 Zarins, Jury Verdict Review & Analysis at https://www.jvra.com/verdict_trak/professional.aspx?=1&se arch=55&verdict=1&jurisdiction. Oldham, J., Gabbard, G., & Goin, M. (2010). Practice Guidelines for the treatment of patients with Borderline Personality Disorder: APA

Being described as sustaining PTSD as a psychological consequence in litigation can prove to be advantageous as it offers strong support for psychological injuries (Gold, 2003; Gold & Simon 2001). However, the problem is PTSD is also perceived by laymen and experts alike as the most “severe” form of psychological injury and thus will unsurprisingly, likely encourage Claimants to either falsely report or over-report their symptoms as it will validate their experience of being a victim to an adverse life event. Another important factor is secondary gain of receiving higher compensation. In the US, a 2013 analysis of 1369 civil jury cases, 2/3 of the plaintiffs received compensation for PTSD and approximately a 1/3 received a million dollars or more in settlement of their claim. The importance of secondary gains cannot be overlooked. For example, McNally (2003) found that rates of PTSD diagnosis in the veteran population were grossly overestimated and some veterans who claimed benefits because of PTSD had never been in combat!

Mrs Serena Nathaniel-James Cognitive Behaviour Therapist & Psychologist B.Sc, M.Sc, M.Sc, MBPsS Mrs Nathaniel-James has diverse experience in the application of CBT in the fields of general adult mental health and the specialist field of neuropsychology. Her extensive experience comprises of the treatment of depression, anxiety, PTSD and other emotional difficulties. She has experience in the assessment and treatment of emotional problems in people who have suffered an acquired head/brain injury. Contact: Mrs Nathaniel-James Tel: 0207 467 8300 - 07904 570 272 Email: s.nathanieljames@gmail.com Website: www.psyrelief.co.uk

In summary, the diagnostic criteria for PTSD has changed in every edition of DSM and this has not escaped criticism (McNally 2009). In the context of litEXPERT WITNESS JOURNAL

SUMMER 2019

‘Post-Mortem’ Capacity Assessments Giles Eyre & Dr Linda Monaci provide practical insight into assessing a testator’s capacity after their death years. Her husband involved her in the management of his companies that owned several commercial properties in various countries. After he passed away, when she was aged 60, she decided to spend most of her time in the UK, where two of her children, together with their children, lived. Her other two children lived in France and Switzerland and had no children.

Case study Marie was born in France but had lived in the UK for the last 35 years. She died of dementia aged 88 in a nursing home leaving under her will a considerable wealth to her four children, but divided unequally, and a legacy to an unrelated younger man. Two of her children who lived abroad instructed a solicitor to contest the will as they claimed she lacked capacity at the time that the will was made and that the assets should be divided equally among all 4 children, in accordance with her previous will, and that the gift of £20,000 she had made to a man in his 50s should not be allowed as they claimed he had been a younger lover of hers who sought fortune and had taken advantage of their mother.

Marie continued, until shortly before her death, to enjoy going out for meals in high end restaurants and taking her children and grandchildren on weekend breaks, which had been a regular feature of her adult married life. From time to time, she also enjoyed giving gifts. For instance, she was paying the private school fees for her grandchildren in the UK. Her previous will, made when she was in her 60s, had divided all of her assets equally between her 4 children, but unknown to her children she had made a new will in her late 70s, which assigned roughly 30% each to her two children living in the UK and 20% each to her two children living in Europe. This

Background history: Marie, from a child, had been a performing circus artist, travelling the world with the circus. She had had little formal education. She then married and lived with her husband who travelled between the USA, the UK and the Emirates for 20

EXPERT WITNESS JOURNAL

SUMMER 2019

new will also included a gift of £20,000 to a man in his 50s and provision that the university fees and loans of her 3 grandchildren in the UK would be paid from her estate before the assets were to be divided. At the time of her death her estate was estimated to be worth £5,000,000.

children living in the UK, who had had most involvement with their mother, as well as the solicitor to further clarify matters. Legal principles Capacity is to be judged in relation to the decision or activity in question and not globally. ‘A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ (Section 2 Mental Capacity Act 2005 (MCA 2005)). But ‘a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’ (Section 1(3) MCA 2005).

Marie started experiencing cognitive decline consistent with dementia in her 60s, but due to the slow progression of the condition, it was only formally diagnosed in her 70s and she continued to live in her own home (with some private support), which was the arrangement when the disputed will was made. During the diagnostic process a private neuropsychological assessment had been carried out and a brain scan, showing significant areas of infarct within the white matter. This was 2 years before the last will was made but no assessment of her capacity was made when making the will. Aged 84 she agreed to move into a specialist nursing home where she could be provided with adequate care and support.

Under Section 3 MCA 2005 it is provided that ‘a person is unable to make a decision for himself if he is unable: a. to understand the information relevant to the decision

Given the will was contested on the basis that Marie was thought to have lacked capacity when it was made, a clinical neuropsychologist was instructed to comment on this issue, but because the person to be assessed had already passed away, a ‘post-mortem’ capacity assessment was required. This task obviously presented some difficulties. The neuropsychologist had available the documentation in relation to the diagnosis of dementia made prior to the will, which was primarily concerned with Marie’s ability to live safely, the level of support that she then required and what if anything could be done to ameliorate her condition. Additionally, the medical records (including GP records and the nursing home records) and the minutes of the meetings with the solicitor who drafted the will were available. The neuropsychologist was provided with witness statements from the 4 children and the younger man, and from the solicitor who made the will, together with his notes, which had included no direct consideration as to capacity or mental state. He had not been informed of the diagnosis.

b. to retain that information c. to use or weigh that information as part of the process of making the decision d. to communicate his decision (whether by talking, using sign language or any other means).’ ‘The information relevant to a decision includes information about the reasonably foreseeable consequences of: a. deciding one way or another, or b. failing to make the decision.’ To make that assessment more difficult ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ (Section 4 MCA 2005). The expert must address: • Whether the person has an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works, whether the impairment or disturbance is temporary or permanent? (the ‘diagnostic threshold’)

The notes of Marie’s solicitor had documented the conversations he had had about amending the will and the gifts; the solicitor was also interviewed as he had known Marie (and her husband) for many years. He was able to recall numerous details about Marie’s presentation and behaviour over the years he had known her, which was helpful to put things into context. For instance, he told of many lavish meals and a generous lifestyle, so that it appeared less likely that treating her family members to relatively expensive outings meant that they were taking advantage of her (as claimed by Marie’s two children living in Europe), but had been a normal part of her lifestyle before her health deteriorated.

• If so, does that impairment/disturbance mean that the person is unable to make the decision in question at the time it needs to be made? (the ‘functional’ test) The expert must then go on to assess the ability to make a decision by answering the following questions: • Does the person have a general understanding of what decision they need to make and why they need to make it? • Does the person have a general understanding of the likely consequences of making, or not making, this decision?

Finally, there were statements from two carers, both now living in Poland, who had been involved in assisting Marie while she was still living at home. The neuropsychologist was able to speak with the 2 EXPERT WITNESS JOURNAL

• Is the person able to understand, retain, use and weigh up the information relevant to this decision? • Can the person communicate his or her decision?

SUMMER 2019

Specifically, in relation to the making of a will the person making the will must be capable of understanding: • the nature and effect of making a will – what it is they are doing

Marie’s thinking and reasoning in relation to her will and the gifts and the reasons for a change of will. The noted discussion with the solicitor, and questions raised by the solicitor and by Marie, indicated that she appeared to have the ability to weigh up pros and cons in relation to making the will and its effects. The notes indicated that the man in his 50s to whom she wanted to give £20,000 did not appear to have been her lover but was the husband of her cleaning lady who had worked for her since her husband had died and who had died a few years earlier, leaving two children. The meeting notes also indicated that Marie considered herself as having become less close with her two children in Europe and that they contacted their mother less frequently after she had refused to lend them money for two separate business ventures.

• the extent of his or her estate – what it is they have to dispose of on their death • the claims of those who might expect to benefit from the will – what expectations there might be amongst others as to what they might get under the will. Further, in the rather arcane language of the time, ‘that no insane delusion shall influence his will in disposing of his property’ (Banks v Goodfellow [1970] LR QB 549). The expert’s task Carrying out mental capacity assessments is a complex task and must take into account the character of the person to be assessed, their beliefs, behaviour and values, both before and after their capacity was questioned.

In summary, it appeared that Marie had often enjoyed a relatively extravagant lifestyle and that she had continued to enjoy what can be considered to be expensive meals and holidays with her family. Although a gift of £20,000 can be deemed a considerable amount of money, this was not a significant amount in the context of her wealth. In relation to the disparity in the treatment of the children, and the generosity towards the grandchildren, reasons were recorded in the solicitor’s notes and it was apparent a discussion had taken place about the potential implications of the will showing inequality between her children. The meeting notes with her solicitor suggested that she had capacity at the time of making the disputed will.

For instance, in this case, the medical records indicated that Marie suffered from significant cognitive problems in her 70s, at the time the new will was made, to the extent that she needed support in order to continue to live in the community. However, experiencing cognitive problems does not preclude retaining capacity on a particular issue at the time the decision is taken. Marie had to move into a nursing home in her 80s due to the severity of her cognitive problems and the nursing home records show numerous incidents of behavioural problems and that Marie’s cognition was so badly affected that she needed 24-hour care in order to maintain her safety.

Reflections/considerations/learning points - Whenever any doubts arise as to capacity, it is essential to instruct an expert to carry out a mental capacity assessment to avoid possible issues later on. If any doubt arises when a solicitor is instructed to draft or execute a will for a client, at the least the client’s general practitioner, and in a more difficult case a neuropsychologist, should be instructed to advise, with specific questions asked of them in line with the tests referred to above. Advanced years or a degree of physical or mental frailty may well be indicators that care should be taken but in the absence of either there may be cause to be careful.

Applying the legal principles set out above the neuropsychologist had to decide whether (on the balance of probabilities) at the time the will was made Marie had an impairment of the mind or brain, or some sort of disturbance affecting the way her mind or brain worked, whether temporary or permanent (the ‘diagnostic threshold’). The nature of her condition and the date of diagnosis satisfied the diagnostic threshold.

- Solicitors should follow a golden rule – that the making of a will by an elderly person, or one who has suffered a serious illness, ought to be witnessed or approved by a medical practitioner who 'satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding.' (Kenward v Adams (1975) The Times 29.11.75)

The neuropsychologist then had to decide whether at the time the will was made Marie was unable to make the decision in question at the time it needed to be made (the ‘functional’ test) To do that the neuropsychologist had to determine whether Marie had at that time a general understanding of what decision she needed to make and why she needed to make it, a general understanding of the likely consequences of making, or not making, this decision, was able to understand, retain, use and weigh up the information relevant to this decision, and could communicate her decision.

- A professional person who witnesses a will will be inferred to have made an assessment of the testamentary capacity of the testator and could be challenged in writing or in the witness box, and asked to explain their experience and expertise in assessing testamentary capacity, as well as explaining how they came to their opinion. Therefore a doctor witnessing

Although Marie was clearly affected by cognitive problems, the solicitor’s meeting notes documented

EXPERT WITNESS JOURNAL

SUMMER 2019

Dr Linda Monaci Consultant Clinical Neuropsychologist Medico-legal assessments for suspected or known brain injury and/or brain dysfunction in Personal Injury and Medical Negligence claims

• • • • •

• • • •

Acquired brain injury Stroke Epilepsy Alcohol and drug abuse

Post-concussion syndrome Anoxia Dementia Neuropsychiatric conditions

Mental capacity assessments

Medico-legal services: Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments usually within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can also be carried out in Italian. Dr Monaci has a good knowledge of the Swedish language and has experience of working through interpreters. Clinical services: neurorehabilitation services are also available Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). Contact: linda@monaciconsultancy.com for an initial enquiry. Main consulting rooms (nationwide locations): Several locations in the UK are available. Domiciliary visits can be arranged when clinically appropriate. Assessments can also be carried out abroad. Ten Harley Street London W1G 9PF Tel. 020 8942 3148

Borough Chambers Keats House 24-26 St Thomas London SE1 9RS

Aston Clinic 26 Kingston Road Surrey KT3 3LS Tel. 020 8942 3148

Correspondence address: Aston Clinic, 26 Kingston Road, Surrey KT3 3LS Tel. 020 8942 3148

a will must be able to justify the opinion reached on capacity from the evidence available and applying the test set out above. Notes of the interview should include a record of what the person making the will said and in particular anything said to explain the exclusion of potential beneficiaries or reasons for treating them unequally.

Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer for clinicians (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk), and regularly writes articles on these subjects.

- The solicitor taking instructions for a will from a person of mature years, particularly one living on their own, should themselves consider the question of capacity and record themselves matters relevant to such an assessment, such as those mentioned in the previous paragraph, and as set out in the legal principles above. - Assessing mental capacity retrospectively is a far more difficult task, and if any doubts arise, it is essential to instruct an expert such as a neuropsychologist, to provide a mental capacity assessment on the basis of the evidence then available.

He blogs on issues relevant to court experts in civil claims – with particular but not exclusive relevance to medical experts - at www.medico-legalMinder.net. Dr Linda Monaci Consultant Clinical Neuropsychologist Dr Linda Monaci provides a nationwide specialised and comprehensive neuropsychology assessment and treatment service for individuals (aged 16 years and over), insurers, solicitors and other agencies.

- The expert must reach a conclusion on capacity, on the balance of probabilities, applying the statutory tests in the MCA 2005. The statutory presumption is of capacity. - The expert must justify their conclusion logically from the findings of fact, and the factual information provided, from the client, if still alive, from witnesses, from any lawyer involved and, where appropriate, from formal assessment. This will require consideration of all those matters set out above under legal principles

Assessments can also be carried out in Italian. Assessments in care homes and in individuals' home may also be possible (when based on clinical needs) nationwide and abroad. Consulting rooms in Surrey, London (Harley Street and London Bridge) and other locations.

- It is important not to penalise a person for having limited life experience and lower educational attainment. An important consideration will be the person’s ability to give instructions and seek, understand and follow the advice of their solicitor.

www.monaciconsultancy.com

Graham Rogers

- Contemporaneous records, such as the solicitor’s attendance notes, and contemporaneous medical or care notes are a vital source of evidence and are likely to carry much greater weight than the recollections of others and particularly family members.

& Associates Limited Consultant Psychologists M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS

- The evidence of independent witnesses with no financial interest in the outcome of the investigation is likely to carry greater weight than that of family members.

Experience and Expertise in Psychological Assessment Experience at The Central Criminal Court, providing reports and live evidence.

Summary There can be very real difficulty in carrying out a post-mortem assessment many years after the events to which they relate. Often there will be an absence of specific evidence other than a subsequent diagnosis. Here there was sufficient evidence available in Marie’s case from the solicitor’s contemporaneous notes, even though he did not specifically address the question of capacity, to indicate her mental state at the time the will was made, and to provide explanations about the decisions made, and general evidence relevant to rebut suggestions of extravagance and partiality as a result of absence of capacity.

Qualified as a Psychologist for over 27 years’ Former Head of Department Experienced within both the NHS & Local Government Experienced in working with offenders within the community Contact: Mob: 07952 170 627 Email: info@grahamrogers.org.uk Web: www.grahamrogers.org.uk

This article previously appeared in the New Law magazine. Many thanks for permission to reproduce it. EXPERT WITNESS JOURNAL

Available Nationwide 62

SUMMER 2019

The Structural Engineering Technical Expert â&#x20AC;&#x201C; What does he do? by Dr Angus Ramsay, MEng, PhD, NRA, PSE, CEng, FIMechE Introduction To the uninitiated, engineering might well be a black art. How on earth do people design and build such structures as bridges, and how do they know that they will stand the test of time? This opinion might be reinforced by the regular failures that sadly occur with such structures. In reality, though, the bridge will have gone through a design process which will have used analyses to size the various structural members so that they have sufficient stiffness and strength to withstand any foreseen loads that the structure might see during its life. It should then have undergone a detailed design process whereby the various details in the design, e.g., bolted and welded joints, are investigated for such matters as fatigue resistance. Even seemingly static structures as bridges do see time-varying or transient forces due, for example, to traffic and wind, that induce oscillatory stresses about the mean value which have the potential, through fatigue, to initiate and grow a crack and ultimately fail. These, too, need to be considered at the analysis stage. In a statically indeterminate structure, one that possesses redundancy through multiple load paths, failure of one member may not necessarily mean structural collapse. However, for a statically determinate structure, as considered in one of the studies presented in this paper, this could mean partial or complete structural collapse.

Most people understand that stress is simply force divided by area and that for a safe design the stress needs to be limited to some value. However, unless the structural member or machine component is extremely simple, determining the stress is not a straightforward task. The engineer can begin the process of stress analysis by considering how the load applied to the member or component transfers through it to the supports. Beam theory, a staple undergraduate subject, is often useful here. However, whilst a structural member might well actually be a beam, it may well have details or features, e.g., holes, reinforcement etc., that require it to be considered as a three-dimensional continuum, at least local to the feature, in a manner similar to that required for a machine component. Engineers like to simplify problems to those that have known theoretical solutions for the stresses. The plate with a central hole under a uniform tension field is a nice example. It shows that the stress is concentrated around the hole by a factor of about three, i.e., the peak stress is about three times the ambient tensile stress and that this figure is more or less independent of the size of the hole! There are many other structural features that can cause stress concentrations but

with no known theoretical solution and so if the engineer is to avoid the possibility of early fatigue failure at one of these points, he/she must be able to predict with reasonable certainty the stress concentration factor.

In this article I am going to present two short case studies of recent projects with which I have been involved. Both required FE analysis although for different reasons. Each project underwent significant verification procedures but these will not be presented here. What I would like to show with these case studies is, however, the logical processes which an engineer goes through in order to get to the essence of the problem at hand. In the first study I look at a seemingly straightforward problem of a plate supported around its perimeter and under a uniform load. My client’s structural engineer analysed the plate using a traditional hand calculation and, finding the stresses to be too high, rejected the design and recommended that the plate thickness be doubled. Further consideration of the problem, and use of FE, however revealed additional reserves of stiffness and strength in the plate not considered by the structural engineer which meant that the client’s original design could be shown to be perfectly adequate. This study comes from my core engineering consultancy business. The second study, which comes from a recent project where I acted as a Technical Expert, involves the collapse of a scissor lift caused by the failure of one of its structural members. The lift is actually a rather simple (statically determinate) structure and the stresses in the members can be established exactly using beam theory and hand calculations. However, the failure occurred in a portion of one of the members where reinforcement had been applied. The local analysis of this portion required a three-dimensional FE analysis to pick up the stress concentration caused by the step change in section properties at the curtailment of the reinforcement. The actual study involved providing an opinion on whether the collapse was a result of poor design or operational overload. The opinion I came to is not, for obvious reasons, discussed in this study but the process of arriving at the stresses on which this opinion was based is shown.

Whilst there is a plethora of published data on stress concentration factors likely to occur at particular design features, they usually apply for a given, and often idealised, set of loads and supports. The true nature of the stress concentration for the actual loading/support conditions can only be explored by detailed stress analysis using a numerical or computational technique such as the finite element (FE) method. The FE method works by discretising the component into a mesh of (finite) elements. The elements are normally of simple shapes, e.g., triangular or quadrilateral for two-dimensional, planar problems defined by the position of the vertices or nodes. Within each element the stress is allowed to vary in a defined manner, e.g., a constant or linear variation, and usually it is the nodal values of the stress that define the, as yet undetermined, amplitude of the element stress field. The elements are then assembled using continuity conditions between adjacent elements. The complete numerical model then comprises a set of simultaneous equations which, once suitable supports and loads have been applied, can be solved for the unknown amplitudes of the element stress fields. The FE solution, whilst only an approximation, does have the property that it minimises the error between the FE solution and the unknown theoretically exact solution for the problem. Thus, in a nutshell, FE is an approximate but hopefully convergent method in that with mesh refinement the FE solution should get closer and closer to the theoretically exact solution even if this is unknown. Whilst the above description of FE seems simple enough and although, nowadays, FE software is extremely easy to use, the whole subject is fraught with pitfalls for the unwary or uneducated user. I discussed in an earlier article for The Expert Witness Journal, [1], some of the issues faced by engineers when using numerical simulation techniques such as FE and outlined approaches for good practice. The engineer must always remember that ComputerAided Catastrophes (CAC) can and do occur. The Sleipner incident is probably the most notorious example of CAC. This case is discussed further in [2] but, in essence, poor (unconverged) FE results were used to design the submerged concrete base of an oil platform resulting in an underprediction of the true stresses (by some 45%) such that the structure failed as it was being submerged into position on the sea bed. Whilst no injuries occurred, the cost of the incident was in the order of $700M. The only safe approach when using FE results is to adopt the Napoleonic Code of jurisprudence, i.e., Guilty until proven Innocent!

EXPERT WITNESS JOURNAL

Case Study Number 1 – Perforated Aluminium Balustrade This example comes from a recent project undertaken at the author’s company, Ramsay Maunder Associates (RMA). The company involved in specifying, manufacturing and installing the balustrades had approached their usual structural engineer to ensure that their design met the appropriate codes of practice. The code of practice tells the engineer the loading that the balustrade should withstand and also the maximum acceptable displacement and stress. Balustrades similar to the one being considered here are shown in Figure 1(a). The approach used by the structural engineer was to use standard tabulated data for the maximum bending moments in unperforated plates. To account for the perforations, the engineer then factored the bending moments up by the ratio of the appropriate cross-sectional area of the unperforated plate (thickness multiplied by plate width or length) divided by the cross-sectional area of the perforated 64

SUMMER 2019

plate. The factored moments were then compared with the yield moment for the 3mm thick aluminium plate to establish whether or not the plate had sufficient strength. It turned out, on this basis, that the plate was not strong enough and the engineer then calculated that the plate thickness would need to be doubled, i.e., from 3mm to 6mm, for it to have sufficient capacity.

lem becomes a non-linear one and is more or less intractable through hand calculation. The problem is however easily handled through FE analysis by simply switching on the large displacements feature in the solver. The plots of displacement as a function of applied load for the plate are shown in Figure 1(b). With small displacement theory the deflection limit is reached at about 40% of the required load. The true behaviour of the plate, which is captured using large displacement theory, shows that the plate can take the full required load without reaching the deflection limit. Now, as the stress increases with increasing deflection, the stresses occurring in the plate are lower than predicted using small displacement theory and are such that the plate can be shown to be compliant with the code of practice for both deflections and stresses. Case Study Number 2 – Reinforced Structural Member This example comes from one of the author’s recent engagements as a technical expert. The case involved a scissor lift that had collapsed early in the machine’s life causing a fatality. The scissor lifts shown in Figure 2 are for illustrative purpose only and are not the same as the one considered in this case study. The author performed a structural analysis and assessment of the lift and was then able to provide an opinion whether the design was flawed or whether the operator had overloaded the lift. Whilst the failure is in the public domain, the project was executed under an NDA and so details of the lift have been changed for this article and the author’s opinion on fault left open.

Figure 1: Perforated aluminium balustrade At this point in proceedings, RMA were approached to see if a more detailed analysis might be able to show sufficient strength for the 3mm plate thickness. Over the years, RMA have performed checks on tabulated engineering data and in some cases found such data to be incorrect – see, for example, reference 3. A good starting point for this project then was to check that the results used by the structural engineer were actually correct. A FE model of the unperforated plate was generated and confirmed the maximum bending moments used by the structural engineer. In looking at the FE results, the deflection was also noted and the maximum value, which occurs at the centre of the plate, was found to be about 2.5 times the maximum value prescribed in the code of practice! So, not only was the plate failing due to excessive stresses, it was also violating the code through excessive deflections. Now, for an initially flat plate, transverse loads are transferred through the plate to the supports by bending actions. This is much like the way a beam transmits loads but for the plate there are bending moments in two mutually orthogonal directions. This is all well and good, but as the deflections increase, and, typically, once they become of the same order of magnitude as the plate thickness, membrane action begins to stiffen up the now deflected plate or shell. Membrane action involves forces parallel to the surface of the plate and can be particularly significant if the supports are such that the plate is not allowed to ‘pull-in’. Indeed, it is the membrane action that makes an egg shell so strong – if you’ve not already done this, try squeezing an egg in your hand, you might be surprised just how much pressure it can take before it breaks. In order to account for membrane action, ‘large’, as opposed to ‘small’ displacement theory needs to be adopted. The probEXPERT WITNESS JOURNAL

"High, higher, highest" by pburka is licensed under CC BY-SA 2.0 Figure 2: Images of scissor lifts in action The scissor lift is an interesting structure in that without the hydraulic actuator it is a mechanism rather than a structure. Addition of the actuator turns it into a mechanism which can bear load due to self-weight and applied to the platform through occupants and cargo. It is what engineers term a statically determinate structure, which makes for rather simple analysis but this also means that it possesses no redundancy in case of the failure of a single member,

SUMMER 2019

i.e., the failure of any member will, depending on which member fails, lead to partial or complete collapse of the structure.

contours plotted on the beam model of the relevant member in Figure 3; stresses greater than the yield stress are coloured in silver-grey.

The basic structure can be analysed by hand calculations. The process proceeds by setting up the equations of equilibrium for each member, assembling these for the structure and is completed by solving these equations to obtain the forces applied to each member. It is a simple matter then to draw stress resultant diagrams, e.g., bending moment diagrams, which define the structural demand on each member. The design engineer would then select a member with a cross section with a capacity capable of meeting this demand. As this was an assessment rather than a design project, the author compared the demand with the capacity of the section as already designed.

In order to model the stresses in the region of interest when the member is reinforced, a solid continuum model was required. A local solid model was constructed and loaded with forces and moments derived from the beam model. Those keen to point out that reinforcement might lead to a different load path should remember that this structure is statically determinate, i.e., the load path is independent of the relative stiffness of the members. The understanding of Figure 3 requires some explanation. Starting from the left we have the scissor lift modelled as using beam elements. Move to the right and we see the axial stresses in the member supporting the bottom joint of the actuator. We see a step change in the stresses corresponding to the step change in bending moment at the point where the actuator joins (with an offset) the member. The stresses in the corresponding solid model are shown offset to the right of this figure. The same contour range is adopted for both beam and solid models, and the correspondence of stress levels can be seen. In order to see the peak stresses, we must adopt a view normal to the upper surface of the member. This is shown in the figures to the right-hand side where both beam and solid model results are shown. It is seen here, in the solid model results, that the step change in section does indeed amplify the stress levels to such an extent that the region where the stress exceeds the yield stress for the material extends further than it would have done had the section not been reinforced.

The initial assessment showed that the square hollow sections (SHS) of the lift members had insufficient capacity to cope with the demand for the two members attached to the hydraulic actuator. The designer of the lift was obviously aware of this and had added reinforcement to the SHS in the regions of high bending moment. The reinforcement, however, was limited in its extent both around the cross section and along the length of the member, and led to a step change in section properties together with a fillet weld to join the reinforcement to the SHS. In a similar vein to Aristotle’s view that ‘nature abhors a vacuum’, the engineer knows that ‘structural members abhor step changes’, and tend to respond by shooting the stresses up to infinity, at least theoretically! The initial FE model used beam elements and the basic section properties of the SHS without any reinforcement. The member stresses in this model are high at the point of maximum moment and exceed the yield stress for the material at the point of interest. The point of interest is the member supporting the bottom joint of the actuator which, as a result of the offset of the actuator joint from the central axis of the adjoining member, leads to a step change in the bending moment. This can be seen in the stress

EXPERT WITNESS JOURNAL

The results presented above are under an overload condition for the lift and show unacceptably high stresses of the sort that might well lead to the rapid development of a fatigue crack. Reinforcement was applied to the region of high bending moment but it was not extended sufficiently beyond the region for the stresses to be brought down to a sensible level, i.e., well below yield. Under normal loading the

SUMMER 2019

https://www.ramsay-maunder.co.uk/knowledge-base/ publications/an-error-in-timoshenkos-theory-of-platesand-shells/

stresses in this region were well below yield. It is common for mobile elevated working platforms such as this scissor lift to be overloaded and in speaking to a colleague who works in the auctioning of secondhand machinery, the author understands that hire companies generally sell their lifts off after only a year of operation precisely because they cannot guarantee that they have not been overloaded.

Acknowledgements The author is grateful to Dr Edward Maunder, a practising structural engineer and the Reverend Max Ramsay, an intelligent and interested amateur, for their reading of and comments on this article.

Discussion Projects, such as the type described in this paper, provide challenges and are therefore extremely interesting and having projects coming from industry as well as through expert witness cases work well together with the two streams of business complementing each other.

Dr Angus Ramsay MEng, PhD, NRA, PSE, CEng, FIMechE Angus completed a traditional engineering apprenticeship (ICI) before studying at Liverpool, Exeter and the Robinson FEM Institute with a brief intervening period in automotive research and development. He conducted research in computational structural mechanics at IST in Lisbon (equilibrium methods) and Nottingham (yield-line techniques) which was followed by ten years industrial consultancy in mechanical engineering (turbomachinery). He recently acted as an Independent Technical Editor for the NAFEMS Benchmark Challenge Initiative, is a member of their Education and Training Working Group and a Founding Member of the NAFEMS PSE Scheme. The PSE scheme replaces the older NAFEMS Registered Analyst (NRA) scheme. He is a Technical Expert for HKA Global, a company specialising in providing expert engineering and technical services to an international client base and a member of IMechE’s Structural Technology & Materials Group.

The successful outcome of both projects required a developed understanding of structural mechanics together with a specialist understanding of how to model such problems using FE analysis so as to provide sound and robust results. Neither of these skill sets come as standard with a graduate engineer and, on the whole, require a mature and experienced engineer to be able to tackle such problems reliably. The author has developed these skills and specialisms over a thirty plus year career working both as a mechanical engineer at the sharp end of design and analysis of turbomachinery and also as a structural engineer in the nuclear industry assessing structures for structural integrity under the simulated action of earthquakes. One of the key skills required in acting as a technical expert or as an expert witness is the ability to explain clearly and concisely what your opinion is and how it was obtained. This often requires distilling rather technical matters into a pithy and well-illustrated argument that is understandable by an intelligent layperson. This may, of course, need to be done orally at a hearing, but possibly more importantly the product of a technical expert is generally a report in a written legal format. In presenting the case studies in this short article, the author has attempted to use this distillation process and it is hoped, as the reader, you will understand and find a new realisation of what an engineering technical expert actually does.

Office: +44 (0)1626 867591 Mobile: +44 (0)7917 833 234 www.ramsay-maunder.co.uk

Ramsay Maunder A S S O C I AT E S

Mr Angus Ramsay Senior Engineering Consultant with over 30 years’ experience specialising in Finite Element Stress Analysis PhD, CEng, FIMechE (RE3 & SC Cleared) Dr Angus Ramsay, is Managing and Technical Director at Ramsay Maunder Associates (RMA), a company offering specialist finite element stress analysis services and engineering consultancy.

In closing this article it should be noted that structural engineering and the analysis of stresses in both structural members and mechanical components is just one field of activity that typifies engineering practice.

RMA have operated successfully for ten years in the structural/mechanical engineering sector in the UK and further afield and have assisted clients in, amongst others, the design/assessment of nuclear structures under seismic loading (Eurocode EC3), and in the understanding of mechanical failures in industrial machinery and how these might be addressed through improved design. RMA also undertake fundamental research & development into specialist finite element formulations and are working in collaboration with others to offer bespoke limit analysis/design software for reinforced concrete slabs used in the floors of buildings and bridge decks.

References [1] Angus Ramsay, ‘Simulation Governance for the Expert Witness’, The Expert Witness Journal, Vol. 1, Issue 20, pp 86-93, Summer 2017.

Dr Ramsay is happy to be approached to provide Technical Expert or Expert Witness services.

[2] Angus Ramsay, ‘The Sleipner Incident; A ComputerAided Catastrophe Revisited’ The NAFEMS Benchmark Challenge Volume 2, NAFEMS, 2015. www.ramsay-maunder.co.uk/downloads/nbr06.pdf

Ramsay Maunder Associates Ltd 60 Devondale Court, EX7 0PN Tel: +44 (0)1626 867591 Mobile: +44 (0)7917 833 234 Email: angus_ramsay@ramsay-maunder.co.uk Website: www.ramsay-maunder.co.uk

[3] Angus Ramsay & Edward Maunder, ‘An Error in Timoshenko’s Theory of Plates & Shells’, The Structural Engineer, June 2016.

EXPERT WITNESS JOURNAL

SUMMER 2019

Whether you talk to us about expert witness or consulting services, we’ll talk to you from a deeply informed point of view. Our combination of ser vices makes us unique, and a leading provider to clients in legal, ﬁnancial and insurance, food and drink, leisurre, manuf u acturing, energ y and waste sectors. At over 25 years old, our reputation is stronger than ever. In that time we have built a legacy of trust and conﬁdence — our clients value the depth and qualit y of our insight and we take great pride in delivering intelligence and results that they have real faith in. They tell us that this reassurance is priceless.

We work in partnership with clients to deliver a range of exp x ert witness services, including: Structural & Civil Engineering Asbestos Digital Forensics Hand Arm Vibration Mechanical & Electrical Engineering Noise Induced Hearing Loss Occupational Health Regulatory Investigations Restoration & Reinstatement

A s h by d e l a Z o u c h

B irm in g h a m

Edi n b urgh

Iva n h o e B us in es s Pa rk

Edm m un d H o use

Edin b urgh Prin c es Stre et The B al a nc e

A s h by d e l a Zo u c h

12-2 2 N ew hall Stre et

8 3 P r i n c e s S t re et

2 P i n fo l d S t r e e t

Le ic e sters hire

B irm in g h a m

Edin b urgh

S heffi eld

L E6 5 2A B

B 3 3AS

EH 2 2 ER

S1 2G U

EXPERT WITNESS JOURNAL

Sheffi eld

+4 4 (0) 1 5 3 0 412 7 7 7 enquiries @ ﬁnch - consulting .com ﬁnch - consulting .com

SUMMER 2019

Briefing: Reflections on the Role of the Expert Witness by Brian Clancy JP, BSc, CEng, FICE, FIStructE, FCIOB, FConsE, MAE, MRICS, MCIArb. Consultant, Brian Clancy Higby Partnership, Cheshire, UK This paper tries to record some of the experiences of a civil and structural engineer and building surveyor over a period of some 50 years and how he became involved, by chance, in advising protagonists who had resorted to legal disputations to resolve their differences. The author is not a great supporter of disputations that rely too heavily on legal management of the arguments – and certainly not of going to court (if it can be avoided). He believes that going to court is, in principle, a failure, unless the matter is extremely complex or an issue upon which crucial legal clarification is required. Most other instances are, in his view, exercises in ‘bullying’, inefficiency, dishonesty, arrogance or stupidity. It is important to appreciate that most well-conducted dispute ‘cases’ (the vast majority) are resolved without ever getting to court, so the ‘expert’ aspect is required far more often than the ‘witness’ part. Most expert witness roles in building and engineering disputes are in civil law cases, but some do occasionally arise in criminal cases, particularly where injury or fatality is involved. For the sake of gathering all blame to the author himself, he confirms that the opinions that he expresses below are his and his alone and not those of the Institution of Civil Engineers.

whom to consult and asked me if I would look at it from a workmanship point of view and do a report for his clients on what I honestly thought. For my part, there was never any belief that it would go to court, but it did. The judge was persuaded by my report and by my evidence and found against the installers – they had to replace the kitchen with better-quality fittings – which was what the court considered the householders had reasonably paid for. Career progression – steps to becoming an expert! As my career progressed, as well as doing many ‘newbuild’ schemes, I became involved and experienced in building assessments, alterations, extensions, and similar matters, for example, for hoteliers, banks, brewers, small industrialists, housing societies and so on. I found these exercises to be exceptionally interesting, because one was invariably dealing with not only an existing building or structure but also real owners and occupiers (residents, tenants, staff, etc.); I found that these were the sort of jobs that – unless they were very big! – large firms did not really want to become involved with, because they can be ‘tricky’ (high risk!), require a disproportionate amount of the attention of senior staff and have a relatively low fee potential – they are just not worth taking the chance on!

Preface When I started my own practice back in 1972, after being a partner in another firm for 3 years, the term ‘expert witness’ (EW) was hardly known – certainly not known to me.

Surveying and technically assessing existing buildings and structures is a very complex procedure and potentially dangerous, as those who do it will know. To put it bluntly, miss something important and you are sued; take a wrong step on site and you could be dead!

Even after 50 years, I have never considered myself as an ‘expert witness’; just as someone who from experience has advised on building and structural engineering problems, some of which – regrettably – have had to be resolved in court or at arbitration or, in more recent times, by adjudication or mediation. Otherwise, I have practised as a professional civil and structural engineer and building surveyor – designing, specifying, constructing, inspecting and generally advising on buildings and structures and their associated technical issues – that is surely the true calling of a construction engineer. However, some practitioners seem to see the role of the ‘expert witness’ as almost a full time occupation – how strange!

When doing a survey, there are umpteen things to look for/at and to consider/assess; it is so easy for even the best of us to overlook something – and you usually only get one chance at the inspection. So, to assist me on site with the surveying and assessing exercise, I drew up my own checklist of ‘things to check and look for’. By chance, when at the Institution of Structural Engineers (ISE) one day for a branch reps meeting, I casually mentioned that I had such a ‘checklist’. The technical director of the ISE (Dr John Dougill) was at the meeting and asked to look at it. I was then asked if the ISE might ‘polish it up’ and publish it; this they did with myself as chairman of the small drafting group (ISE, 1991).

First experience in court The first ‘dispute matter’ upon which I was asked to advise – and that actually went to court – was in 1974; it concerned a badly fitted new domestic kitchen. The solicitor for the owners of the property did not know

Importantly, because it was for use on site when doing the inspection, I personally designed the layout of the book, including its size, the type of material upon which it was printed, and decided how it was to be bound – all so that it was user-friendly, particularly on

EXPERT WITNESS JOURNAL

SUMMER 2019

Figure 1. Factory extension required excavation into adjacent hillside; sheeting failed and the uphill graveyard was threatened – matter went to arbitration

Figure 2. Typical subsidence damage than I – his expert; but he was very good about it! He was later appointed a QC (Queen’s Counsel); among other things, he was to chair many important inquiries and be awarded a CBE (Commander of the Most Excellent Order of the British Empire); interestingly, the counsel for the other side was another young barrister – Mr John Rowe – later to also be appointed a QC and subsequently chairman of the Bar Council. At that hearing, I was surrounded by ‘talent’ in its gestation!

site. It was published in 1991 (second edition 2008) and sold in its thousands. It was pink so that it would be conspicuous if mislaid; it was nicknamed the ‘Pink Panther’ after the popular film character of the time! As an aside, I had noticed that professional institutions were – and still are – very bad at ‘selling’ their publications; so once the guide was published, I took the initiative of going all over the country giving talks to ISE/Institution of Civil Engineers (ICE)/ RICS (Royal Institution of Chartered Surveyors)/CIOB (Chartered Institute of Building) branches and other bodies on ‘Surveys and Inspections of Buildings and Similar Structures (The Pink Panther)’.

But I am going ahead too quickly. About 1975, the numbers of claims being made by householders to household insurers for subsidence damage to domestic property increased dramatically, because ‘subsidence’ – then also ‘landslip and heave’ – had been included as an ‘insured risk’ in household policies from 1972/73 (Figures 2 and 3). About 1983, a local householder, who knew I assessed ‘cracks in property’, asked me to meet his insurer’s claims manager, who was coming to look at some cracks in his house. I inspected the property with the gentleman from the insurers and explained why I thought the damage was the result of subsidence – and explained what I thought needed to be done to rectify it. Apparently, the man went back to his boss Mr Fred Nash, chief claims manager at NEM Insurance Ltd, and suggested that the company use me to assess their subsidence claims – as, in his opinion, I seemed to know more about the matter than the loss adjusters that they used. This word spread to other insurers who started to use me for technical advice – with or without adjusters. Adjusters also invited me to give their staff lectures on ‘subsidence’ and its identification and rectification.

It was – and still is – my view that, if a technical publication is worth the time and effort of producing, then it is important to ‘sell’ it – and the best people to do this ‘selling’ are those who wrote it. It is my opinion that, by doing this, (a) one sells the subject, (b) one sells the institution that produces it (the ISE in this case) and (c) one can also sell one’s self – you just have to remember the order of importance in which the ‘sell’ is presented: a/b/c; but that is certainly the way to ‘market’ a good publication. As a teenager, I worked on a market stall, so I also used other ‘incentives’ to help sales, but I’ll leave those for your imagination! It was also just about this time (1990s) that continuing professional development (CPD) was being introduced into professional institutions and societies; so, with three of my fellow ‘drafters’ of the guide, I put together a set of lectures; I gave numerous CPD seminars in London and around the country – and abroad – on the topic of ‘surveys and inspection of buildings and structures’. This apparently made me ‘an expert’! The question sessions after the presentations were the really important parts of the seminars: I learnt what the audiences wanted to know – and what I did not know! A small story – about this time, I was involved in an arbitration in Manchester concerning a landslip at Bollington in Cheshire (Figure 1). The barrister for our client was a young man called Mr John Uff; it was rather disconcerting to find out that Mr Uff had originally trained as an engineer, was an ICE member, and had a PhD in soil mechanics, so he probably knew more about the technical aspects of the matter EXPERT WITNESS JOURNAL

Figure 3. Typical landslip problem: altering of natural slope after landslide, resulting in another slide 70

SUMMER 2019

was an experience that stood me in good stead later when I was appointed to high office at the ISE.

So alongside my normal work of new build and alterations to existing buildings, I found that I was being consulted more and more by insurance companies to help with assessing the technical aspects of building claims, particularly ‘subsidence’ claims. By 1984, subsidence claims in the UK were running at 25 000 claims a year and by 1991 at 60 000 claims a year (value then at over £500million p.a.) – resulting in a significant influence on premiums and on the ability of owners of affected properties to get insurance cover. Speaking with claims managers, I noticed that the number of claims varied ‘up and down’ depending on the ‘dryness’ of different summers, the geological nature of the area, the presence of large vegetation, the vagaries of the housing market and of the national economy – a complex mixture. It had also given rise to a virtual industry of contractors, adjusters, assessors and lawyers – all living off ‘subsidence’ assessment and repair – and the associated disputes!

Figure 4. Surveying guides with which the author was involved. For the subsidence guide, the first really multidisciplinary publication of the ISE, the same procedure was followed to publicise it as broadly as possible; it sold thousands of copies and, with its second edition, became an early and leading publication on the subject for a period of some 15 years – it is still often referred to, which is a great credit to all those who contributed to its content and publication.

What was very interesting to me was that there was little incentive to resolve the problem, because there were so many parties making a living off the ‘subsidence phenomena’. The situation was then further compounded by the Department of the Environment deciding to make ‘underpinning’ a notifiable activity, for which Building Regulations approval was required. This total ‘circus’ really put a block on the housing market!

Over the years, I have written papers and articles on the topics of my expertise – and even been ‘in the media’! The last substantive publication with which I was involved was as a member of the RICS task group that produced Building Surveys and Inspections of Commercial and Industrial Property (RICS, 2005) (Figure 4 above).

In the midst of this market turmoil, the ISE asked me if I would write a ‘leaflet’ on ‘subsidence’ for guidance of the members. I had been thinking for some few years about the chaotic situation that had developed around the subsidence issue (over the period 1980– 1990) and which then had grown to almost a ridiculous state with no rules or rationality and, in my opinion, tens of millions of pounds being needlessly wasted each year.

First experiences of acting as an expert witness in the ‘lawless’ 1980s! When in the role of EW, as well as advising clients and their solicitors/barristers, one meets other ‘experts’ – some with whom you act jointly and others who act for the other parties.

I explained that it needed more than ‘a leaflet’ – much more!

These other ‘experts’ I found to be a disparate lot – some competent, some incompetent, some honest, some downright dishonest, some qualified, some with experience only, some without qualifications or experience. Some so impressed with themselves that they were determined to ‘appear’ in court.

So arose my idea of a multidiscipline task group of all interested parties – insurers, lenders, engineers, loss adjusters, local authorities, arboroculturalists, lawyers, consumers, contractors and others. This resulted, under my chairmanship, in the seminal publication Subsidence of Low Rise Buildings (published in 1994, second edition in 2000 (ISE, 2000)) which also proved another very popular technical guide and which also sold in its thousands! Apparently, this made me even more ‘expert’.

And frankly, in my view, the solicitors who instructed them were sometimes of little help – in one case my ‘opposing expert’, a chartered structural engineer, when questioned in court on the content of his report, told the judge that, as an engineer, he did not agree with all that was said in his report. He was asked ‘why’ by the incredulous judge; he said that it was his solicitor that that had written ‘his’ report – and not him; he said that he was only required to sign it. I have a few anecdotes in this vein; I often sprinkle my lectures with some of these true ‘gems’ – to keep the audience awake.

There was only one sour note to the production of this guide; a member of the task group used the vast amount of information, assessment and comment that our group collected, assessed and correlated to draft his own publication for another professional body. They published just before we did. The other publication was very ‘lightweight’ and was substantially ignored, but I learned a sad but salutary lesson about human nature and the lack of ethics of commercial interests, even among professional bodies. It EXPERT WITNESS JOURNAL

A lecture on EW matters can be so boring – very few nice pictures – if you are to avoid legal action! 71

SUMMER 2019

Palais de Luxembourg in Paris to a conference considering aspects of civil law for the European Union. It was under the chairmanship of the president of the French Supreme Court. My paper was on the experiences of being an EW in the UK; it was well received and provoked some heated debate among delegates; fortunately, I was not asked to join in, so my limited knowledge of French was not exposed. After alI, I was only a Brit, so what did I know?

But more seriously, I was very concerned by the actions of a significant minority of these other ‘experts’, who seemed to be nothing short of ‘hired guns’ for their clients; focused solely on winning, irrespective of the credibility of the case they were presenting – bullies, fraudsters, fee jockeys (experts who complicate the issues and then ride their client for the fee!); many often even lacked an understanding of the technical aspects of the case that they were advancing. How they ever became professionally qualified – if they were – I did not know. In some cases, I concluded that many of them had probably never worked on a real design, or assessment, or been involved in a real building for decades; they were professional ‘expert witnesses’ – there to criticise other’s efforts – nothing more!

What has happened in the last 40 years to ‘clean up’ the expert witness field? The most important legal case is probably that of the Ikarian Reefer (National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd [1993]) in which Mr Justice Cresswell highlighted the problem of unreliable experts and set out the basic requirements governing the use of ‘experts’ and the standards with which ‘experts’ should comply.

Commenting on the role of the EW About 1982 – and based on my experience until then – I prepared a paper on the subject of ‘The Structural Engineer as Expert Witness’ and submitted it to the ISE for consideration; it could easily have been ICE but, at that time, ICE seemed more distant and very much the ‘establishment’. Although I did attend ICE branch meetings, I knew few branch officers.

This was followed in 1994/96 by the investigation of many civil law shortcomings by a committee chaired by Lord Justice Woolf; it resulted in the publication of the first set of the Civil Procedure Rules (CPR) (HMG, 1998). Precociously, I had made some representations to the committee on the problems affecting EWs, as I saw them; Lord Woolf asked me to expand on my observations, which I did; some of them were incorporated into the new rules – I am sure that many other contributors made similar points, but it was nice to be acknowledged in the report as a contributor.

After some months, the paper was returned from the ISE with a plethora of ‘carping’ comments and with the critical conclusion that it was, anyway, not a suitable topic for an engineering institution to publish. Naturally, I was very disappointed. I later found out that the ‘reviewer’ was the only ISE member who was also, at that time, a barrister; so he would know! I let the matter drop. I was amused when some 10 years later, the ISE published a guide for structural engineers acting as EWs.

Despite the above, I consider that there are things that still could be done to improve the credibility with which professional practitioners are viewed. Is the EW – as a species – different from the normal expert? Perhaps he/she is. Certainly, the role is different from most normal professional practice that civil and structural engineers and surveyors experience, but writing reports for legal proceedings should surely be no different from any normal expert report for a client. For legal proceedings (because of the Ikarian Reefer case?), the CPR normally require an expert to give, at the end of their report, a formal declaration of professional competence and integrity and to note the limitations, if any, of the contents of the report – such as what they consider to be fact and what they consider to be fair deduction or reasonable speculation. But surely this should be the case in any competent report?

Then about mid-1986 I noticed an ‘advert’ in a journal, the New Civil Engineer I think, inviting the submission of papers for an International Conference on Structural Failures to be held in Singapore in March 1987. I had never been abroad to a conference and this was a topic that interested me, so I did a short paper on assessment of defects in existing buildings; I was sure that it would be rejected, because this was an ‘international conference’. Just as I was about to send it off I thought, why not send the rejected ‘ expert witness’ paper as well? Much to my surprise, both papers were accepted. It was a very big conference (2 days and about 400 delegates from all over the world). My EW paper was commended in the opening session by the keynote speaker – an eminent international lawyer Mr Max Abrahamson; he said that he had never before seen such an interesting paper, on such an important subject, written from the point of view of ‘the Expert’.

Despite the introduction of the CPR, I regret to say that I still see reports that make outlandish statements and draw unsustainable conclusions, presumably in the expectation that the protagonists will not have any intention of actually going to court. A civil court action can be very expensive and time consuming – even for the ‘winning’ party.

After my presentation, I was congratulated by a number of delegates and asked for copies of my slides; that was in the days when ‘35-mm slides’ were used but not copied into the papers. It seemed that I had scored – and internationally!

What is unusual in legal proceedings is that the ‘expert’ is a ‘witness’ and once acknowledged as such by the court, is responsible to the court (not to his/her client) and must be prepared to attend court (or the tribunal) and, on oath, give ‘expert evidence’ in

Interestingly, some 15 years later in December 1999, I was asked to present a paper – in French! – at the EXPERT WITNESS JOURNAL

SUMMER 2019

4. to give quality and relevant specialist advice, opinion and conclusions 5. to produce a fair, clear, competent and credible report based on the expertise and opinion of the expert 6. to do all the above with integrity and efficiency 7. to be conscious of their position in the ‘team’ advising the client.

person and to be cross-examined on his/her professional opinions – by (very clever!) barristers! That is certainly daunting – and perjury is a crime! The Academy of Experts, founded in 1987 and based in Grays Inn London, serves a very useful role in advising experts – and clients – on the different forms of dispute resolution: arbitration, mediation, adjudication and so on. It also runs courses and seminars to explain to those acting as experts what is expected of them when they act as an EW.

Within (a) and (b), clearly, you must be very experienced in your discipline and preferably a recognised expert in the relevant field. How that is decided is for your client and the lawyers to determine. They may already know of you, you may be recommended to them, they may consult your curriculum vitae or interview you to see if you are what you say you are – so clearly, you must not present yourself as that which you are not!

Surely for an expert to advise a client on a matter, it is their professional experience and expertise that are the primary considerations not how they ‘write’ reports for court proceedings or how they give evidence in court. Yet, over the last 20 years or more, there has arisen a small ‘industry’ for the training of EWs: university-accredited courses, books, guides, seminars, tutorials and so on. I am intrigued at the growth of this sector of specialist support services for the legal world.

You must give competent, authoritative and correct advice. To have published on the subject of your expertise and to have held positions of seniority in your profession and/or company may be a help; it puts on show your expertise and indicates that your peers have some confidence in you.

What I am not sure of is why these ‘experts’ need such very specialist training to give evidence. In my view, it leaves the expert open to ruthless attack by the lawyers in cross-examination – and without protection from the judge. They are now seen as highly trained courtroom ‘players’; so they are fair game for the barristers. In my view, the whole purpose of asking the opinion of experts has been eroded and hearings have become, in some cases, nothing short of subtle cage-fighting – but perhaps legal proceedings were in some respect, ever thus.

You must keep up to date in your expertise. Since 2011, EWs are no longer immune from prosecution if they fail to act correctly and in accordance with the CPR; they may be open to legal redress by those they advise or mislead. In other words, it is no longer a ‘nice little earner’ for the semi-retired and those reluctant to do ‘real coal face’ work; being an EW is a serious task and it should be seen as such. When investigating a problem, make sure that you try and see the evidence for yourself, if you can – first hand! Try not to rely on others to tell you what was/is there.

The EW that I am most worried by is the one who seems to do nothing else but act as an EW. I knew of one ‘expert’ who said that he specifically moved his office into one of the Inns of Court, so as to be close to the lawyers and their clients – fascinating! The EW on stage! I will now give a few observations about what I have learned personally about investigating problems and acting as an ‘expert in court’; to do this subject justice would need a much longer paper – perhaps even a book. My paper at the Singapore conference was more focused yet still some 20 pages long, but here goes. Topics that I think are relevant for inclusion here are as follows. (a) The task – it is normally one of two types 1. to advise upon some building, structural or contractual problem or dispute within the experience/expertise of the expert 2. to comment upon a professional service given by a member of the same or similar discipline, as the expert. (b) Within the task, the expert may be required (Figure 5) 1. to assist in sorting out a specialist problem 2. to conduct expert investigation/assessment 3. perhaps to meet with other experts to try to ‘narrow the issues’ EXPERT WITNESS JOURNAL

Figure 5. Fatal collapse of 7-storey RC flat slab warehouse building during demolition. The author acted in the case along with other experts 73

SUMMER 2019

Figure 6a. Collapsed old commercial building during excavation for a basement, Liverpool – said to have just collapsed without warning.

Figure 6b. Excavation of rubble, at which the author was present throughout, showed that foundations had been undermined and left open overnight – action settled out of court

In one instance, a building collapsed in Liverpool (Figure 6); it was agreed that the collapsed rubble would be dug out and the undisturbed site below inspected. I made sure that I was on site at 7:00 a.m. to see the work from the start and to watch carefully as it progressed. None of the other experts thought it necessary to attend until late morning after the rubble had been removed. By that time I had already established the cause of the collapse and had disproved the contractor’s story; the explanation was complex, but I was the only person who had seen the evidence – and recorded it in photographs. My report and opinion was accepted as the definitive one. I feel sure, indeed I know, that if I had not been present from the start, vital evidence would have been lost.

support their case, I noticed that there was a photo missing from a ‘numbered’ run of eight; it had mysteriously ‘disappeared’. Persistent harassing of the other expert and his client contractor eventually ‘discovered’ the photo; it almost certainly explained why the building collapsed. It was crucial in disproving much of the other party’s case; presumably he knew this and so ‘lost’ the photo. (iv) The engineer who was helping to pursue a substantial insurance claim for his client. In an attempt to frighten the insurer into making a quick and generous settlement, he stated unequivocally that the building in question was in a dangerous state and likely to collapse at any moment. This of course meant that his client, the building owner, would be required to cease using the building and vacate it; when the implications of this were realised by him and his client, the building miraculously became ‘stable’ again with only one Acrow prop inserted at one end of a doorway, as a token gesture of temporary remedial stabilising works.

Another case concerned a tradesman who was doing maintenance; he fell out of the false ceiling of a supermarket and was seriously injured. An expert gave evidence as to how the accident occurred, based on the original drawings that purported to show how the ceiling structure had been built and so to confirm his view as to why a local collapse occurred. However, before the hearing, I went to site and exposed the area of the incident and some adjacent areas – it had not been constructed as it should have been; it was not as shown on the drawings; my explanation of the cause of the accident was accepted by the judge. Always check information on site/at the scene, if possible!

(v) Beware of telephone discussions with other experts. I had the experience of ringing another expert (with his client’s permission) to discuss and to clarify a technical point. I failed to confirm promptly what we had discussed and agreed. Subsequently, the other expert denied agreeing anything with me! He denied even speaking with me – and I could not reasonably prove otherwise! But his client still lost the case!

(c) Do not assume that other experts are competent and/or honest. A respectful scepticism is a good principle to adopt. Typical instances include the following. (i) The expert who stated that the foundation was only 300 mm deep. True – but that measure ment was to the top of the foundation and not to the bottom.

(vi) If he/she has not already added a ‘Statement of Professional Competence’ to a report, then the dishonest, unscrupulous or incompetent expert can effectively say anything without a need for it to be correct or even carefully considered. (d) Be aware that one’s client may not always be telling the truth. I have had at least four instances where my client has misled not only me as his ‘independent expert’, but also his solicitor – and in one instance, also his fellow company directors – about the circumstances that lead to the claim. Again, respectful scepticism and genuine objectivity is called for with all clients.

(ii) The expert who undertook trial pits and stated that the building was founded on soft clay; only for my excavations to show that it was in fact on dense sand. (iii) A high street building collapsed. Among a vast pile of documentation (including hundreds of photos) that was supplied by one party to EXPERT WITNESS JOURNAL

SUMMER 2019

is still standing – unoccupied and without detriment! – many years later. Meetings of EWs To help speed up matters in court, it is often directed by the judge that EWs meet on a ‘without prejudice’ basis to try and ‘narrow the issues’; this is a very sensible and productive procedure, if conducted properly, but unfortunately, it often fails. Failure can occur for numerous reasons, but often it is because the wrong expert was engaged, the expert is incompetent or unscrupulous – or the right expert was engaged, but too late!

Figure 7. A claim for subsidence damage that relied on calculations, when the problem was not foundation-related but due to leaking drains

Before now, I have been appointed after a number of the issues have been agreed, but in my view agreed wrongly, and to the detriment of my client.

Three of these instances were downright deceit. But what may appear as deceit is often not so.

There are well-established recommendations for how EW meetings should be arranged and conducted. I have spoken and written on this often; here I shall touch on some of the more ‘interesting’ aspects of these meetings.

It is important to realise that even honest people often believe things to be true which are not, because they wish to see them in the best light – the truth that is believed to be the truth, rather than the real truth.

Because EW meetings are ‘without prejudice’, nothing is officially recorded or issued unless agreed, but useful discussions can be beneficial between parties of good will. Lawyers often put in long lists of ‘items of claim’ to try and cover all legal options. Often many of these are relatively trivial or repetitive – in financial and/or technical terms – and, providing no party is trying for a PhD on any small point, can often be rapidly dealt with by the EWs, leaving only the important issues to be considered in detail.

Memory can be particularly unreliable and flexible – 25 years as a magistrate taught me that! (e) Beware of cases that depend on calculations alone (Figure 7) I have had more than one instance of an ‘expert’ using calculations alone to justify his views: in another instance, this was to justify the vacating of a complex of apartments and then requiring its potential demolition. The expert asserted that his calculations ‘proved’ that the building was likely to collapse in high winds at any time. The building was then 20 years old and showed no signs of any distress whatsoever. During the discussion about the validity of the claim, exceptionally high winds occurred – the most severe for decades. The building withstood the storms without any distress or movement – not even an indication of inadequacy. I suggested that perhaps the calculation did not consider the ‘whole building’ structure and suggested where other structural benefits may have lain. My client (a subcontractor) was released from liability and, to the best of my knowledge, the building

(i) These meetings are as much an exercise in diplomacy as in technical discussion. (ii) Try to concentrate on the ‘issues’ as stated in the ‘pleadings’; do not try to deal with any matters not in the claim and/or defence documents. It is not what should have been claimed that matters, but what was/is claimed. If you have any suggestions about altering the claim/defence documents, then make them to your client or instructing solicitor separately; they will make that decision. Do not raise them at the experts’ meeting.

Figure 8a. Large commercial development in Hong Kong.

EXPERT WITNESS JOURNAL

Figure 8b. plant on roof and access facilities that were the subject of part of the dispute. An action relating to compliance with contract terms – went to court SUMMER 2019

(vii) It is often the case that, despite the directions of the court, ‘instructing solicitors’ are reluctant to allow their experts to agree anything with representatives of other parties. This frequently means that some experts feel very inhibited about discussing, even on a without-prejudice basis, anything which might imply that their client has some liability. Without the opportunity for free discussion/debate, the meeting of experts is, for all practical purposes, quite useless.

(iii) EWs are often able to compare alternative views about how a problem might be dealt with; it is not always solely about a technical answer, often financial and potential disruption issues are equally important; a floor relaid in sections in a functioning workshop may be more expensive per square metre, but much less disruptive to the use of the building – so cheaper overall. Alternatively, the claimant may say that he cannot work in the area, if the work is to be done in phases; perhaps this is true – or perhaps he just wants a cash settlement – for moving out and then relaying the floor – when in practice he actually stays in the building during the work and makes a greater financial ‘killing’; there are often many ‘angles’ to consider.

(viii) To overcome constraints placed on experts by their solicitors and/or clients, it is sometimes useful for all, or at least some, of the experts to issue an ‘aide memoire’ of their discussions, rather than the socalled ‘agreed statement’, which the court would prefer. The ‘aide memoire’ is, for all practical purposes, the unofficial ‘minutes’ of the discussions between the EWs, as taken down by one of them – the ‘scribe’ – and agreed by the most of the others; it represents the next best record of what was said. Though not admissible in court, it can be very useful to all parties. The advantage of the ‘aide memoire’ is threefold.

(iv) Even if, after some discussion, an EW is thought (or found) to be seriously ‘off beam’ and starts to realise that he/she is so, it is in my view inadvisable metaphorically to shoot them in the chest. Find some issues upon which you can agree with them and then let them down gently. Remember that the other expert has to explain his/her ‘misunderstandings’ to their client. Make them look too much of an ‘incompetent’ and he/she may just dig their heels in and refuse to see sense. The court case then costs immensely more (in time and cash) than it would have if sensible compromise had been agreed early on. Also, if the case is fought, there is always the chance that the undeserving party may just win. Judges are not infallible – hence the appeals system – but most civil miscarriages of justice are not worth appealing without serious consideration of the likely further stress and financial risk involved. Though I have known a major case be pursued to the supreme court of another country – but that case was worth an awful lot of money! I am pleased to say that my client was successful (Figure 8).

First, it records as fairly as possible, what was actually said at the meeting(s) – there may be more than one meeting. It sets out the views of the experts as to who agrees with what and who does not. Second, it avoids the possibility of different EWs inadvertently – or deliberately – recording and transmitting different versions of what was said. Third, if the particular EW chooses, the ‘aide memoire’ can also be shown to their client/solicitor, so that they can see where things are going. It also avoids – or at least reduces – the likelihood of EWs misleading their clients or solicitors as to the content of the discussions; I have known cases when some EWs agreed on issues, but others were not allowed to do so, but having the aide memoire helped all parties make progress with the case.

(v) Unfortunately, I have seen what I consider to be cases of miscarriages of justice, which have caused me great sadness, particularly where individuals were involved rather than impersonal entities and companies. Like the large number of terraced properties in a northern town that were declared unfit for human habitation, so that – in my view – the local authority (LA) could buy them cheaply for a clearance project to build an academy school, rather than buy them at market value, which would be more financially onerous and protracted for the LA.

(ix) There is some debate about whether experts’ meetings should occur before exchange of reports or afterwards. Provided the issues are known, some EWs favour meetings being held before exchange of finalised reports, as that gives EWs the opportunity to modify their views without having to ‘lose face’ by officially having to retract officially stated opinions. Construction professionals, like politicians, seem to find it very difficult to admit to the possibility of their being wrong – or even slightly wrong.

In my view the properties were no worse than many hundreds of similar properties in the town. It seemed to me that the interests of the mainly elderly residents and poorer families who occupied them were effectively ignored in the name of ‘progress’. Fortunately, the subsequent public enquiry, at which I gave evidence, did at least get some financial recompense for the residents – but that is no compensation for the destruction of a community.

The counter-view suggests that unless one knows the opinion of the expert, one cannot debate it. So meetings of experts should be postponed until late on in the proceedings and if possible – some say – avoided altogether. I prefer the former course of action. (x) I once attended a meeting of EWs at which the solicitor for one party insisted on being present; when told that he was not entitled to be present, he said that he would not take part – just make notes! The meeting was adjourned and convened on another day – the solicitor was not present on that day.

(vi) Even if a claimant wins, having to prove loss of earnings, expenses and so on, of the winning party is a nightmare – irrespective of the stress and personal disruption caused.

EXPERT WITNESS JOURNAL

SUMMER 2019

If conducted properly and in the correct spirit they are intended to do the following.

(xi) Engineers are – of their nature – practical people. Once, before a hearing, I offered to make a model to demonstrate to the court my view as to just how a particular collapse had occurred. My solicitor was adamant in refusing the offer; he had the bitter experience of once allowing such a demonstration – to prove that a crane was capable of lifting a particular load safely; during the demonstration, the load fell out of the shackles holding it and proved the other side’s case!

(i) To ensure that the expert report addresses all the matters which are at issue and within his/her expertise and does not deal with irrelevancies or matters that are not pleaded. (ii) To ensure that the report is logically drafted and in sensible order; that the language is clear and that no ‘dangerous’ words like ‘ensure’ are used – unless advisedly; that there is no hyperbole; that all that is contained within the report is stated fully, fairly and reasonably.

(xii) Likewise, be careful about ‘opening-up’ to prove something in front of the other experts. Though you may prove your point, other less favourable evidence may be revealed. As in the case where an expert excavated to show that a foundation had been taken to the specified depth – it showed clearly that the foundation was at the correct depth, but unfortunately much smaller than it should have been! Barristers have a good principle – never ask a witness a question to which you do not already know the answer. The same is good advice for EWs’ demonstrations – be sure you know what you are going to find! If you must, open up and have a look before you give a ‘public demonstration’ – or don’t ‘open up’ at all.

(iii) To ensure that it is ‘expert opinion’ and deduction, and not an exercise in advocacy – leave that to the lawyers! (iv) To ensure that there are no ambiguities, contradictions or other confusions within the report. (v) To require the expert to give further clarification on any point, if that is thought appropriate. (vi) To avoid the expert reaching conclusions as to liability. These are strictly speaking the province of the judge. I know from personal experience that some judges can be very touchy on this point. (vii) To ensure that the report does not breach any of the accepted legal procedures.

(xiii) Finally in this section, it is wise constantly to remember that, just because another expert disagrees with you (in whole or in part), does not mean that they are wrong. One must constantly be examining one’s own arguments honestly and in detail – particularly as evidence develops.

Although in my experience, rarely the case with barristers, it is sometimes the case with solicitors (because of their proximity to the client) that they will put pressure on their experts to state views or place emphasis with which that expert does not really agree. As I have said, it has even been known for a solicitor to take a series of preliminary reports (or a draft report) produced by an expert and then to draft the final report himself for the signature of the expert.

Review of the expert’s report I have had the privilege of being a magistrate for over 25 years, so while I respect lawyers and court officials, they do not frighten me – as they do seem to frighten many EWs. If you are about to go to court for the first time, I suggest that you visit a court, preferably a civil court, beforehand and sit in the public gallery; listen for an hour or so to a case (it will probably be very boring!); get familiar with the environment; particularly listen to witnesses being examined or cross-examined, so that you have some idea of what to expect.

Your report for presentation to the court has to be your own professional expert view and one that you are prepared to stand by and be able to justify before the court. Failure to see faults or deficiencies in one’s own case can cast doubt on the credibility of those aspects of your argument which might be fair and favourable to one’s client.

Importantly, always respect the judge. In criminal cases, the judge must follow the decision of the jury; in civil cases, his/her word alone is decisive – subject to any subsequent appeal.

It does not further your client’s case if you are seen to be prepared to stand by him – right or wrong. When the crash comes, as it invariably will, it will be all the greater.

At a stage before the hearing (and after any meeting(s) of experts), it will be ordered by the court that experts’ reports be exchanged. Before exchange, the barrister or solicitor (usually the solicitor) acting for your client may wish to examine your final draft report in great detail. This is for a number of quite legitimate reasons. These are principally to ensure that the report complies with the CPR.

The court expects that you will present expert, balanced and fair evidence, and, as the evidence dictates, concede fault (or liability) on behalf of your client on matters within your expertise where that is – on the balance of probability – fair. Tips when in court (i) Jousting between the retiring rooms – just before the hearing. In my view, for an EW, the most fraught period of any case is the first morning of the hearing when the parties meet for the first time before ‘doing battle’.

I find these exercises to be very challenging but an invaluable experience for examining the EW’s findings, opinions and conclusions. They are effectively a ‘trial’ cross-examination of the expert to test the technical case in detail. EXPERT WITNESS JOURNAL

SUMMER 2019

All parties are on edge and informal ‘jousting’ between the various lawyers is common, sometimes delaying the commencement of proceedings by a long period; an hour’s delay is not exceptional. The judge is told that a ‘settlement’ is being ‘explored’ or that some matters have just come to light and need to be ‘clarified’.

to sit! Why I do not know, but you do not disagree with the judge! In my view, sitting while being questioned by somebody who is standing, gives the inquisitor a psychological advantage. (iv) Cross-examination can be brutal. It is the objective of the opposing barrister(s) to find flaws in your evidence – effectively to discredit you. This may be as to your competence, your examination of the issues in the case, the wording of your report, your deductions, your conclusions, whether you are biased, whether you are expressing opinions that are the purview of the judge or arbitrator – or indeed issues that are beyond your expertise; barristers are exceptionally clever in their cross examinations, never underestimate them.

Judges seem to be very tolerant of this behaviour; in my experience it does sometimes lead to a settlement or at least the ‘narrowing of the issues’ – as the phrase goes. Sometimes, it is the stage at which one side or the other tries to pull professional ‘tricks’ to gain an advantage; these tricks often involve the experts and the expert evidence. (ii) The belated presentation of important ‘recently discovered’ relevant information.

Be prepared for sarcasm and belittling comments – always delivered with a degree of charm and finesse. If you are being ‘bullied’, the judge will normally protect you, unless of course the judge is also sceptical about your evidence.

With much formal apology, the barrister for ‘the other side’ will produce a bit of evidence, a document, a calculation, or a sketch, which purports to strengthen their case and weaken yours. The ‘quotation’ or ‘calculation’ will have been revised! This immediately throws you into a state of panic. Your barrister will be furious with the other side for doing this and perhaps also with you for not anticipating it. Have you made a mistake? Have you missed something? You will be expected to come up with an instant answer/ calculation/sketch; often it is just a ‘shot across the bows’ by the other side to see how you react, as an EW.

I have found that a good riposte to a belittling comment from a barrister during cross-examination is to say, ‘That comment is unworthy of you Mr...’ – but use it sparingly and only when relevant! In one case before the Official Referee’s Court (now the Technology and Construction Court), I was the EW for a group of elderly people who owned a newly built block of flats that had to be the subject of a substantial remedial underpinning scheme to prevent it sinking into the ground (Figure 9). There were a number of defendants in the case, each with their own EWs and senior counsel. Because I was the EW for the claimants, I was ‘in the box’ very early in the hearing; I was cross-examined for days – it seemed to be for weeks! Each barrister had a go at me in turn – that is the accepted procedure!

Some 20 years ago, in the middle of a case, I was presented with a substantial sheaf of calculations purporting to ‘prove’ something. I spent most of the night checking these calculations, only to conclude that they proved nothing. Next morning, the other side was told of my opinion – ‘on reflection’, they then said that they would ‘not pursue it’. No apology.

It came to the last barrister – an eminent QC. After he had been cross cross-examining me for a day or more, he came out with an accusation that I personally had clearly already decided who was guilty and who was not in the case – trying to get me to show bias! I replied that, as I had been looking at the papers and the property for some 3 years, obviously, I had my opinions, but that it was the privilege of the judge to decide liability, not me.

Interestingly, I was due to give evidence that day after only some 2 hours’ sleep. (iii)When giving evidence my advice is to keep cool and stand – do not sit down. Standing avoids your becoming too comfortable. Your inquisitor is standing – you do the same. In one instance, in Hong Kong, I was ordered by the judge

Figure 9b. typical detail of underpinning in progress; the case went to court; the hearing took some weeks

Figure 9a. Blocks of flats founded on peat using rafts as an economy over piles – the whole development required piling underpinning; EXPERT WITNESS JOURNAL

SUMMER 2019

The judge, a very senior member of the bench, turned to me and said, ‘Mr Clancy, this is a singularly complex case, if you have any suggestions that might help me, please be so good as to put them on a piece of paper and pass them to me!’

However, what I have often asked myself is: why do otherwise sensible people, who become the clients, spend so much time and effort in the negative activity of civil litigation – particularly in the construction industry?

It was of course not an invitation to me to do so, but a subtle rebuke to the barrister for attempting a below-the-belt punch at me. I am pleased to say that after my days of gruelling cross-examination, the case settled in favour of the elderly owners!

As I said at the beginning of this paper, few cases are really complex or require a special legal ruling – they seem to be generally exercises in ‘bullying’, inefficiency, dishonesty, arrogance or stupidity. I am not a defeatist – far from it – as those who know me will confirm, but, as far as civil legal proceedings in construction are concerned, my advice would be to do a cold-blooded ‘SWOT’ (strengths/weaknesses/opportunities/threats) analysis before embarking on the path of litigation. Win or lose, everyone gets paid (mostly!) except the litigants, one of whom may gain in material terms most of what they sought, but they will never be properly compensated for the stress and effort that they put into the dispute.

But judicial experiences can also be amusing. A case in North Wales concerned a landlord who wished to regain possession of an old residential property that he had let to a number of tenants; it occupied a very pleasant spot overlooking the sea. He wished to demolish it and build a bigger property on the site. To do this, he claimed that the property was unfit for habitation; it was my task to comment on that allegation as regards the interests of the residents. The tenants had protected tenancies. Two elderly lady tenants remained. They were friends and had lived there for very many years. The landlord had found them alternative accommodation in the middle of the town, but they would not move. The matter went to court. I did not think the property beyond reasonable economic repair and reported accordingly.

Fortunately, in construction cases, the majority of disputes probably never get to court, because after advisors and/or experts have met and decided where they agree and where they differ, the majority of cases can normally be resolved without the need to go to court; that is, if the parties apply common sense to the situation (Figure 10 below).

The landlord declared in his evidence that ‘these were just two little old ladies ... they had no right to stop him gaining repossession’. The elderly judge ruled against him, saying within the judgement that ‘little old ladies have to stick together’; we all noted that she was herself a ‘lady of advanced years’, but I think the irony was wasted on the plaintiff landlord.

As I have said above, probably the most difficult situation that I have encountered is differentiating between the three ‘types of truth’, as I call them: evidence which is the truth; evidence that is believed to be the truth but is not; evidence that is lies. In my experience, the most difficult one with which to deal is the second.

12. Final thoughts and conclusions This has been a very short assessment of the role of the EW, and how I personally came to be intermittently involved as one. I hope that it has thrown some light on the world of the EW. What I am most proud of is that I have been–may still be– considered an expert in my professional engineering and construction fields. Some still seem to think so as, despite probably being past my sell-by date, I still get asked for advice from time to time – and I still attend lectures and courses on relevant topics because they interest me. Like the construction projects for which I have been responsible – from as little as a few thousands to many millions of pounds – I have also been an EW in some of the smallest disputes – small- claims court, less than £5000 – to the High Court in Hong Kong in a claim worth £120million (Figure 8). I think I have some reasonably broad experience in both sectors.

Figure 10. Collapse of building during re-roofing – a complex problem! It was resolved after experts met without the author’s client going to court I will finish with two short anecdotes which may sum up my opinion. One of my corporate lawyer friends from a large practice once quipped of his ‘brickie’ litigation lawyer partners: ‘There is nothing that a litigation lawyer likes coming through the door more than a “man of principle”!’ ‘I’ll get him for this, if it costs me my last fiver!’ – It often will! I think the same can often be said of some EWs, who seem to display very little regard for the cost of the litigation relative to the value

Without meaning to sound pompous, may I say that there is no doubt that professional practitioners of all disciplines (medics to lawyers to accountants to engineers and so on...) serve an essential role in helping to resolve disputes in all walks of life – because they have expert knowledge acquired from years of experience in their field of specialisation. EXPERT WITNESS JOURNAL

SUMMER 2019

of the claim; the courts have tried to redress this anomaly in recent years but, as I understand it, mediation cannot be forced on parties.

CALVERT CONSULTING Calvert Consulting provides advice and an expert witness service on nearly all mapping matters. Carl Calvert is a Fellow of the RICS and holds a Master's degree in law who specialises in boundary and rights of way disputes in England and Wales, and in copyright and other Intellectual Property matters in 'Common Law' countries and the EU.

Now one of my own. I have often likened a dispute, which goes to court, to a heavyweight boxing match! After 10–15 rounds, there will be a winner and there will be a loser. Forget the loser – he is in terrible shape; look at the winner! He will also be in a bad way – and there will be lots of blood all over the floor of the ring; a lot of it belonging to the winner.

Although the consultancy was established in 2001, Carl has experience as an Expert Witness since 1991, covering both Copyright and aspects of land law dealing with Boundaries, Adverse Possession, and Rights of Way (both private and public) in both the High and County Courts and experience as a Surveyor for nearly 35 years with the Ordnance Survey.

Services For Boundary and ROW matters • A measured land survey • Examination of deeds and plans • Examination of Land Registry Documents • Analysis of archival maps • Analysis of aerial and terrestrial photographs • Demarcation of boundaries and rights of way • Preparation of Land Transfer plans • A Civil Procedure Rules (CPR) compliant Expert's report • Advice prior to litigation • Copyright in maps & GIS’ matters • Examination of the maps • An opinion on the probable existence of copyright • Forensic Cartographic study • Cardiff University-Bond Solon Certificate as an Expert Witness • Experience as an Expert Witness in Common Law & Civil Law countries

Is there possibly any other way to settle this dispute? That is why I prefer engineering, but I have enjoyed the diversion of being the occasional EW and helping to resolve some disputes. Unlike one expert of my acquaintance, I will not be moving into chambers in one of the Inns of Court – so as to be nearer my potential clients! Though funnily enough, back in 1962, I started my career in Grays Inn where Oscar Faber & Partners had their London offices, but so also did many architects and other professionals at that time. References HMG (Her Majesty’s Government) (1998) The Civil Procedure Rules 1998. The Stationery Office, London, UK, Statutory Instrument 1998 No. 3132 (L.17).

Email: carlcalvert@aol.com Mobile: 07786 438 213 Tel: 023 8086 4643 Contact: Carl Calvert, 4 Buckland Gardens, Calmore, Southampton SO40 2SB

ISE (Institution of Structural Engineers) (1991) Surveys and Inspections of Buildings and Similar Structures. Institution of Structural Engineers, London, UK. ISE (2000) Subsidence of Low Rise Buildings, 2nd edn. Institution of Structural Engineers, London, UK.

National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd (The “Ikarian Reefer“) [1993] 2 Lloyd’s Rep. 68.

RICS (Royal Institution of Chartered Surveyors) (2005) Building Surveys and Inspections of Commercial and Industrial Property, 3rd edn. Royal Institution of Chartered Surveyors London, UK.

EXPERT WITNESS JOURNAL

SUMMER 2019

Subrogation

Advantages of a Protocol and Use of the Scientific Approach In Fire and Explosion Investigations by Larry Canary A little background is needed to place this important topic in proper context. Prior to 1992, Fire & Explosion investigations were more closely aligned with the art of Investigations, rather than actual science. Investigators relied on what they were taught by those revered in the fire investigation profession or through trial and error. Since 1992, the National Fire Protection Association (NFPA) published a document called NFPA 921 Guide for Fire & Explosion Investigations. A complimentary document to NFPA 921 was NFPA 1033, Standard for Professional Qualifications for Fire Investigator. Although both the afore mentioned documents are orchestrated by the United States, they are internationally accepted in many locations and seen as a Best Practice document. To place a finer point on these documents being internationally accepted, The Institute of Fire Engineering in the UK and the Fire Service College, referenced as recommended reading NFPA 921 and 1033 as part of their Level 5 Award in Fire Investigation, dated 10 August 2017. Level 5 Award in Fire Investigations, a more advanced version from Level 2, was designed for fire officers, scenes of crimes officers and others involved in investigating and reporting on incidents involving fires. NFPA 1033 has been around since 1977 in one form or another, but has only recently, since about 1987 had any real influence. In 2009, however, NFPA 1033 truly had a monumental impact and every publication of the document since that time has compounded on that impact. What is that monumental impact, the requirement for Fire &

Explosion investigators to utilise a protocol basis for their investigations. Nevertheless, that was not the only impact – NFPA 1033 identified 13 different and specific knowledge requirements to maintain above the high school level. Then in the 2014 edition of NFPA 1033, the list of 13 knowledge-based topics grew to 16. NFPA 921 from 1992 to present has been revised through a consensus of industry professionals ranging from insurance, fire agencies, law enforcement and private/public fire investigators and many others. This document tells the professional how to properly perform their investigation in detail. NFPA 921 was not designed to be a comprehensive engineering or scientific text. What it was created for was to further eliminate what in the early days of Fire & Explosion Investigations was called junk science and provide “a systematic, working framework by which effective fire and explosion investigations and origin and cause analysis can be accomplished”. Now to present day…What does any of this have to do with Subrogation? LOTS! When a Fire Investigator is assigned to conduct a scene examination, wouldn’t it be comforting if you knew beyond doubt that your investigator was conducting a complete and thorough scene examination? NFPA 1033 sets forth the mandatory Job Performance Requirements (JPRs) which set up a specific protocol of performance requirements. Following this protocol ensures the investigator

addresses all the issues associated with the investigation.

1033 and the guidance of NFPA 921 will be more prepared to provide a comprehensive, accurate, detailed account of their evidence and findings that are easily understood. The scientific method provides a road map for the investigator to follow and stay the course.

However, one may ask, okay, use the protocol, how? This is where NFPA 921 comes into play. It is a playbook of how to properly use the scientific method. This document is over 300 pages of scientific and engineering discussion compiled by many professionals in the fire & explosion profession with the intent to ensure all fire and explosion investigations are appropriately and scientifically conducted.

Subrogation can be challenging to navigate, but an investigator that followed NFPA 1033 and 921 will be able to provide a much more representative account in any litigation process and potentially position their client to prevail.

The scientific method is a 7 part system that when followed, ensures the investigative process is complete and defensible. Consider this…If the origin of the fire is inaccurately identified, then it is likely the cause will be equally misidentified. A client retains a professional fire & explosion investigator to obtain their independent opinion/conclusion. That opinion must be explained to an acceptable level of certainty to rise to the level of an expert opinion as determined by a judge.

The scientific method and the protocol is not smoke and mirrors, nor is it a mystery…It is designed that when used properly, it provides the “trier of fact” to accept the investigator as an expert, understand and be able to better apply the evidence submitted to the court. Lawrence L. Canary IFSAC-CFI, NAFI-CFEI, FCLS Vice President, Fire & Explosion in Richmond, Surrey Lawrence (Larry) Canary, IFSAC-CFI, CFEI, FCLS is the Vice President – West Region Manager of the Fire & Explosion Division of Envista Forensics. He has over 30 years of fire investigation experience and has personally conducted or supervised over 1,600 fire investigations globally. He holds degrees in Fire Science, Criminal Justice and Instructor of Technology & Military Science. He has testified as an expert in fire and explosion investigations in both state and military federal courts. Mr. Canary’s experience includes large/complex loss management and investigations that have involved long duration deployments and team responses.

“The goal of all investigators is to arrive at an accurate determination related to the origin, cause, fire spread, and responsibility for the incident.” Not following the protocol and scientific method sets up for a potential improper scene evaluation, analysis and documentation. As anyone associated with the insurance industry understands, subrogation is a chess match orchestrated by attorneys, with experts providing evidence and insurers with alleged “deep pockets”. A professional investigator that adhered to the standards of NFPA

EXPERT WITNESS JOURNAL

SUMMER 2019

Timber Fire Doors Pass Government’s 30 minute Standard Test Timber fire doors have passed official government testing to confirm that they can withstand the 30-minute standard on both sides of the door. The testing, carried out by the Ministry of Housing, Communities & Local Government (MHCLG), began in October 2018 after problems were reported. All timber fire doors tested were given the all-clear and the ministry of building safety has now been informed that there are no issues and they are safe for use.

“I am pleased to report that all have succeeded in meeting the required 30-minute fire performance standard.”

Building owners are still being warned to check for certification that doors are fit for purpose.

“As a result of our tests, the Expert Panel has concluded that they do not believe there is a performance concern with timber fire doors across the industry, where they are purchased directly from the manufacturer and produced to specification,” James continued.

James Brokenshire, Secretary of State for the Ministry of Housing, Communities and Local Government, said, “Today I am making available the results from the testing of a sample of timber fire doors from 25 manufacturers.

“Although the results of our testing providence assurances for residents who have concerns about fire doors, it is for building owners to assure themselves that the fire doors they install are fit for purpose and have the required documentation and certification.”

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk We aim to answer every enquiry within 2 hours

Mr Michael Andrews Chartered Surveyor & Valuer FRICS, Advanced Professional Award in Expert Witness Evidence (Edexcel/RICS) Property specialist with over 35 years experience of Mortgage Valuations, Homebuyer Reports and Building Surveys in the West and North Yorkshire area. Professional Negligence relating to valuation of properties for finance and mortgage purposes Professional Negligence relating to surveys of residential properties (RICS Homebuyer Reports and Building Surveys) Single Joint Expert Reports for Matrimonial Cases Professional negligence in relation to conveyancing and effects on valuation Address: Allied Surveyors and Valuers Ltd 134/136 Lower Wortley Road, Leeds, LS12 4PQ Contact Name: Mike Andrews, FRICS, Tel: 0113 2310349 Email: mike.andrews@alliedsurveyors.com Website: www.alliedsurveyors.com

EXPERT WITNESS JOURNAL

SUMMER 2019

Disputes Between Landlords and Tenants - Pitfalls and How to Avoid Them Disputes between landlords and tenants happen often, though many are unnecessary and avoidable. By Martin Burns. Whether a tenant lives in a leased flat or house, or uses rented property as their business premises, they will want to exercise influence over the way in which they can use the property. They will want to have a say, for example, in the level of rent they will pay in the future. They will also want some control over such matters as service charges and the term of the lease. The landlord will want a measure of control over the same issues.

And both parties will likely pay for it. Once a dispute starts, legal and other related costs spiral upwards, seemingly out of control. The price all parties pay is more than just financial. Disputes jeopardise personal and business relationships. They damage commercial reputations. Resolving disputes can be stressful, time-consuming and ultimately futile. The landlord and tenant may likely be informed of the progress of litigation or arbitration, but they will have little control over the proceedings and outcomes.

Landlords and tenants will no doubt continue to have conflicting interests. Landlords will want to earn as much rent from their properties as possible. Tenants will want to pay as little as possible. It is natural for landlords and tenants to have differing starting positions when it comes to their ambitions for the level of service charge or how the property is used. That they will have different opinions is normal and is to be expected. Unfortunately, and all too often, there are many occasions where the different aspirations held by landlords and tenants are allowed to escalate into tedious and expensive disputes.

EXPERT WITNESS JOURNAL

However, it is not inevitable that, while they have dissimilar goals, landlords and tenants should always end up engaged in disputes. There are pitfalls they can avoid. â&#x20AC;˘ Proactively maintain communications If a landlord and tenant cease to engage in open and candid conversation, they can easily allow a dispute to develop and thrive. When two parties, who disagree about something, stop talking, they effectively begin to build a void between themselves that can rarely be recovered. When this happens, communications between landlords and tenants become formalised 84

SUMMER 2019

tlement without the need for escalation and referral to third party intervention. By formally documenting agreed matters, or any misgivings, landlords and tenants can focus their minds on the important matters that actually need to be settled between them. Documents and records should be specific and as accurate as possible, describing dates and any occurrences which relate to agreed matters or problem areas.

and are conducted mainly through professional gobetweens, such as lawyers or chartered surveyors. Parties, often on the advice of their professionals, adopt entrenched positions. Before anyone knows it, third-party intervention via the courts or arbitration, becomes the only solution that will put an end to the dispute. Meeting face to face, enables parties to keep in touch and informed. This is a key factor for avoiding disputes and resolving differences of opinion early, cheaply and amicably.

• Focus on the big picture Once a landlord and tenant begin to disagree about something, it is all too easy for each of them to focus on the negative aspects of the situation and also on what they immediately want. For the most part, this is understandable. However, many landlord and tenant relationships are fairly long-term. By paying attention to the potential repercussions of how they deal with a difference of opinion now, both parties will your dispute may be felt further down the line.

• Be bold, deal with emerging problems early and do not let things fester It is surprisingly common for people to fail to appreciate that they need to act on a matter or that they should begin a discussion regarding certain issues, simply because they did not know they were pending. An approaching rent review is a natural area for disagreement. Keeping abreast of timescales for reviews and addressing issues and potential problems at the earliest opportunity will make later discussions more constructive, less time-consuming and less likely to collapse in to formal disputes.

• Mediate Sometimes, even when relationships are relatively positive, and parties are in regular communication with each other, there will be some matter(s) on which they will fail to agree. Mediation is an excellent way of allowing both landlords and tenants to continue negotiating an agreed settlement of their differences whilst at the same time preserving individual interests and a sense of privacy. The role of an independent mediator, who is an expert in the subject area on the which they are disagreed, is to facilitate a negotiated settlement on a basis that is acceptable to all parties. If the parties wish, a mediator can take a more pro-active approach and provide impartial evaluations on issues, which informs them and helps them to find a solution.

• Understand the terms of the agreement. It is all too easy for landlords to use template leases and then discover something they do not like about the arrangement too late to do anything about it. Tenants will often sign leases without fully appreciating the extent of their obligations, again until it is too late. Landlords and tenants who properly understand their obligations under the terms of leases, are less likely to fall into dispute, and more likely to have informed and constructive discussions when issues do arise.

Martin Burns 04 July 2019

• Make records and document ongoing matters in writing In the event of any emerging disagreement between a landlord and tenant, clear and accurate records of conversations and correspondence will inform their negotiations and give them a platform to achieve set-

Mr Matthew Wood Chartered Building Surveyor BSc (Hons), MRICS, MCIOB I have completed numerous reports on building matters for Court use, both as Expert and Single Joint Expert. All my reports are prepared in accordance with CPR part 35 requirements and are well researched and written, clear and well presented. Areas of Expert work: - Building and workmanship disputes including quantum - Failed cavity wall insulation - Housing disrepair - Building defects and pathology including damp, condensation, mould, structural issues, roofs, walls & floors. - Building insurance and warranty claims including fire, flood, structural, subsidence etc - Professional competence & negligence of Building Surveyors and Architectural Designers - Forensic analysis of building surveys/reports - Building workmanship and standards - Building accessibility - Personal injury - JCT Contract and Contract Administration (Minor Works and Intermediate Forms)

Contact details: Tel: 01924 654014 Mobile: 07709066969 Email: matthew@ovolobc.com or samantha@ovolobc.com Website: www.ovolobc.com Address: The Former Nursery School, 141 High Street, Normanton, WF6 1NW - work undertaken throughout the UK

EXPERT WITNESS JOURNAL

SUMMER 2019

Take ownership of your career Diploma in Arbitration Flexible distance learning providing you with the essential skills required to represent parties or discharge the role of arbitrator. Delivered on a module-by-module basis so you can work your way up to a full diploma qualiďŹ cation in your own time.

Find out more: t +44 (0)24 7686 8584 e drstraining@rics.org w rics.org/arbitration

Commercial Court Requires Expert Witnesses to be Trained as Expert Witnesses On 29th April 2019, the High Court of Justice for Northern Ireland issued a “game changing” Practice Direction, which affects all those who wish to act as expert witnesses in commercial proceedings. Expert Witnesses play a central role in the judicial process. The key constituent of the evidence they give is their specialist subject matter knowledge. Expert witnesses are instructed because they are very knowledgeable about their particular field. An expert will know lots more about a specific subject than most people, including many of their peers. They will almost certainly know more than the judge hearing the case in court does.

penalised in costs orders. The court may even order that expert evidence provided by non-compliant experts will be disbarred.

The role of the expert is fundamentally about communicating information about the expert’s specialist area to the court. The court needs the evidence of the expert witness to understand something about the specialist area in order to connect properly to the issues at the heart of a dispute and deliver an informed decision.

The Practice Direction is clearly a move in the right direction to improve the quality and impartiality of expert witness testimony in the Northern Ireland commercial courts. It is also likely to generate demand for high quality expert witness training and accreditation programmes. Proper training should help ensure professionals understand the duties attached to the expert’s role and give written and verbal evidence correctly. Formal accreditation by a recognised training provider will signal that an expert witness will properly discharge the role. It gives instructing parties and the court confidence that experts understand the relevant law and the primacy of their duty to the court.

Exceptional subject matter expertise is inevitably a key requirement for anyone wishing to act as an expert witness, but it is not the only qualification they must have. Expert witnesses must have a sound appreciation of the workings of legal proceedings and have a more than firm grasp of rules and protocols for giving evidence, including the duties set out in the Practice Direction.

Expert witness training and qualifications helps experts to work efficiently and positively with lawyers, and properly define their briefs. Experts who are well trained acquire high levels of confidence. The qualifications they achieve through training enables them to demonstrate that they have first-rate courtroom skills, and have mastered the art of dealing with robust crossexamination.

The Practice Direction, which now applies to all proceedings in the Commercial List from 1st June 2019, emphasises the extent of the duty owed by anyone who is instructed to give or prepare expert evidence for court proceedings. The primary message is that the duty to the court overrides any obligation the expert might owe to an instructing party or person(s) who pay the expert’s fees.

In summary, instructing parties naturally desire experts who have high levels of technical expertise. The courts desire this too, but they also require experts to know how to discharge the role expertly and dispassionately. A key message arising out of the issue of the Practice Direction is that experts must be trained and accredited in the role. John Fletcher RICS, ADR Director

The Practice Direction offers a reminder to expert witnesses that they should follow best practice and be mindful of the objective of the Rules of Court, which is to enable the court to deal with cases justly. Experts should have regard to the objectives of the Pre-Action Protocol for Commercial Actions and they should sign an Experts Declaration.

Steven Docker Associates specialise as Accommodation Experts in Personal Injury and Clinical Negligence Litigation.

At the heart of the Practice Direction is a key message to expert witnesses that they will be expected to be qualified, not only in their specialist subject matter, but also as expert witnesses. In other words, they should be trained and accredited in the role and duties of the expert witness.

The practice has long established and very successful departments dealing with: ● Expert Witness ● Property Finding and Feasibility Assessments ● Architectural Services Steven Docker Associates Chartered Surveyors & Designers for Disabled Individuals Park House, Parkway, Holmes Chapel, Cheshire, CW4 7BA Tel: 01477 544 499 Contact: Ms Anita Blair Email:sdd@stevendocker.co.uk Web: www.stevendocker.co.uk

Experts who fail to comply with the Rules of Court or the Practice Direction or are responsible for excessive delay may cause the parties who instruct them to be EXPERT WITNESS JOURNAL

SUMMER 2019

A Life in Construction by Keith McMillan, Chartered Construction Manager. Reflecting on a life in construction, it becomes apparent that many of the changes in legislation which now govern how we approach our expert work actually stems from the construction site. It is the changes in society’s approach to health and safety, the result of mechanisation and the essential adoption of new skill sets brought about by ground breaking inventions. A process which, whether we like it or not, will continue to grow. fice job, I had to wear a suit and having spent months advising me to take a job with prospects not just big starting money, they could not object too strongly. For which I am forever grateful.

Reflecting on a life in construction, it becomes apparent that many of the changes in legislation which now govern how we approach our expert work actually stems from the construction site. It is the changes in society’s approach to health and safety, the result of mechanisation and the essential adoption of new skill sets brought about by ground breaking inventions. A process which, whether we like it or not, will continue to grow.

I soon learned that a QS spends as much time bent over his desk worrying about things called chamfered architrave and whether the skirting was to have round or square top, as any bank clerk spends adding figures . Also, I found juniors had to spend hours adding up excavation items called CA or RFR more often than I would have added up anything as a starter in a bank. In fact my proudest moment was when the comp operator (comptometer not computer) announced that I had added both full sides of an abstract sheet (folded double width paper) without any mistakes.

For this reason I start with some of the more vivid memories dotted through my journey, from disposable navvy to (possibly equally disposable) director. Starting as a school holiday hod carrier, dumper driver on good days and unloading the cement lorry on bad ones, causing burnt ears from the hot bags, which because of their weight had to rest on my shoulders. Something I blame for not being six feet tall to this day.

Another role passed to juniors was to become the catalogue king. Brochures from a myriad of suppliers had to be logged alphabetically stored in the right order so the takers off could specify the correct item. This was one job that I did well. I was fascinated by the products and spent far too much time reading rather than just logging. I was little to know how much this information would pay off in later years. But all was not lost, eventually I was awarded the privilege of having my first external duty. It was to measure the depths achieved by grid a of hammer drop piles. The site was water logged (reason for piling?). Shiny shoes and clean clothes quickly disappeared. I was distraught, however one day early in the contract, an apparently sympathetic foreman advised that I could leave site as the piles would not reach bottom that day.

At least it only happened once a week and didn’t last too long. Unlike the worst job I ever had, working from 07.00 to 21.00, with two half hour breaks, on the M4 around Bristol, Because of cost over runs it was said that labour was cost reimbursable. Not a term I was familiar with at the time, although I soon came to know its impact. My job was to walk between the wheels of a heavy roller, behind the wide front roller with my shovel against its surface knocking off the lumps of sand. At the end of each run, we turned and repeated the process but with the shovel against the tall rear wheels. Apparently we were cheaper than fitting new scrapers. To this day I imagine an imprint of my body in the sand whenever I hear the term, over runs.

Next day I was welcomed with the news that the piling had bottomed out unexpectedly, so much so that they had been able to drop in the reinforcement cages and concrete the previous evening. Being a good sort, the foreman had taken readings, which strangely appeared to be very similar to those I had taken for other piles.

How I silently thanked Yorkie the land rover driving foreman for telling me to pick up my cards on Friday. On leaving school, I was offered a number of jobs including one with a high street bank. However, I wanted to work in the open, I couldn’t imagine being behind a desk for the rest of my working life.

I might have been a novice but I was not a complete fool. When early relief was next offered I accepted taking refuge in a nearby café from where I could see the site and any approaching ready mix wagon. The only drawback to my highly successful subterfuge was the cost of the coffee and the fear of being spotted by any member of the office staff. When all piles were capped I returned to the office considering myself a piling expert.

With sublime ignorance I joined Gleeds, as an incredibly low paid junior QS. All I knew about the job was that it was something to do with building and I had never seen a QS between the wheels of a roller. There was also the benefit of shorter hours, we even got one Saturday morning in four off. My folks were not overjoyed that I was going to be a builder rather than a banker but at least it was an of-

EXPERT WITNESS JOURNAL

SUMMER 2019

We had entered the World where claims were anticipated on most major projects. Claims were not automatically handled by QSs, specialist claims handling firms existed, similarly with the legal profession certain firms became known for their claims handling expertise.

However, even then I realised I had learnt a couple of worthwhile lessons. Firstly, never to commit to something unless you know fully what it involves and secondly, when tasked to do a job, do it yourself. Without wishing to labour any of these points I will admit to being caught out much later in life by someone who is now head of one of the UK’s biggest contractors.

The direct consequence being that time taken and costs incurred in claims expanded rapidly. On completion of my role I left the project to become commercial head of one of Railtrack’s largest departments. Whereupon I discovered a backlog of small to medium claims. One of which had reached the courts. Given my lack of knowledge of this type of claim I decided to attend as an observer. I trust that no one heard my snoring as discussion on the meaning and use of ‘as before’ occupied the whole morning. I returned to my office resolving that all of my inherited disputes would be settled without bothering the courts.

After several years spent mostly in the office I heard George Wimpey, then reputed to be the largest contractor in the World, were advertising for site surveyors, this persuaded me to jump ship. A wonderful gentleman, Alex Walker interviewed me and gave me some sage advice, to the effect that the company did not expect me to fiddle my measurements or misread the tape to the company’s benefit. If I was willing to do it for the company I could be persuaded to do the same by others. If he is looking down on me now he will be pleased that this is one piece of advice I never forgot and have always passed to employees.

With the sale of BR completed, I was asked to return to the Tunnel to join the very small team commissioned to settle the huge claim with the client and the outstanding ones with suppliers, each valued in hundreds of millions.

The move soon brought me my first claims assignment. As a junior site surveyor it was not exactly taxing but it did involve cement. The contract was to build 663 no-fines houses, ie walls constructed without the use of sand. My kind of construction! Speedy progress demanded the use of rapid hardening cement. It was all too apparent when the crane hoisted the shuttering and a mound of cement and aggregate appeared where a wall should have been, ordinary Portland not rapid hardening had been delivered. It had been fed into the onsite silos contaminating a complete batch, more than just one wall.

Rightly or wrongly it is still my contention that it was not the work of the claims team but the realisation of the costs being incurred that brought settlements. Back in the uncloistered world of day to day construction it became evident that the world had changed, thanks to a number of significant happenings, some recent and others currently bringing hard fought improvements. One of the first important milestones was the Health and Safety at Work Act 1974, a year when the construction industry recorded 166 deaths. Construction was not the only industry with an unacceptable mortality rate, (I quote. Is there such a thing as an acceptable rate?) The Woodhead Tunnel alone reported 32 killed. Generally the mortality rate on the railways was 3 deaths for every mile of track. The rate of 7.9 per hundred thousand hours was four times that of industry.

Again my youthful enthusiasm led me astray. If this was claims work, I was all for it. What strikes me now is the lack of real disputes. Most contracts had disagreements and the opposing QSs would argue but certainly in my experience the differences of opinion did not end up in court. It could have been that I was still at too lowly a position to become involved in the really contentious accounts. But I think not.

It was recognised that whilst efforts had to be made to reduce the terrible death rate, there were other matters that also needed addressing. One such problem was deafness caused by the increasing use of machinery. As increasing mechanisation made life easier for the operatives, it introduced new hazards. I have failed to mention above, laying at full stretch in what was designed to be the main sewer outlet of the new BRI, trying to break into the existing hospital sewer, with only a Kango as company. I was fortunate, my hearing was not permanently damaged by the week long noise in the enclosed environment. Others, even working in the open air but with the new much bigger compressor driven jack hammers were not so fortunate. The noise from compressors, hammer piles and the like had serious detrimental effect. This was finally addressed with the introduction in 1989 of The Noise at Work Regulations.

For me this changed significantly many years later with the Channel Tunnel Project. Certainly not the first major project to become litigious but probably because of its size and being a hotly debated ‘national project’, it received continuous adverse comment. Reports of rabid wolves queueing on the approaches to Calais and swarms of rats ahead of them were daily headlines in one national newspaper. Early works arbitrations for Pway, cable trays etc. were to be seated at Paris. I was responsible for design to commissioning of all M&E contracts, our arguments were held in house at Folkestone, ah well! Proceedings involved instantaneous bi-lingual cross examination. Even then, notwithstanding giving evidence and being cross examined in a manner to be expected by an expert witness today, I cannot recall the matter being referred to as a claim. This changed dramatically as the project progressed, with much of my time being spent with lawyers, examining claims received and preparing huge project wide claims. EXPERT WITNESS JOURNAL

Tractors with back hoes, fork lift trucks, tele handlers and later, lorries with Hyabs, lessened burnt ears and 89

SUMMER 2019

The terrible tragedy of 6 March 1987, the capsizing of the Herald of Free Enterprise at Zeebrugge brought Corporate Responsibility to peoplesâ&#x20AC;&#x2122; attention. The accepted practice was for the ship, a car ferry, to cast off and commence manoeuvers at the same time as it closed its bow doors. On this occasion it is believed uneven loading allowed water ingress resulting in 192 casualties as the ship rolled over. The practice was immediately banned in European ports but continues to this day, using the very same ships, running between Tenerife and Gomera.

sore shoulders, materials on pallets removed the game of seeing how many bricks you could throw at a time, hods disappeared. Tiles, bricks and the like were mechanically hoisted. As buildings grew taller hoist were used to move materials and labour much higher. Safety at height demanded new precautions, netting at edges and eventually gates on scaffolding etc. The coming into force of, The Housing Grants Construction and Registration Act (HGCR) 1976 and amended 2011addressed itself, as far as construction was concerned, to contract requirements and payment procedures. Importantly it introduced the concept of Adjudication. It was supported in 1998 by The Scheme for Construction Contracts Regulation. Of interest is the vociferous reaction by legal profession to the Actâ&#x20AC;&#x2122;s proposal for the introduction of Adjudication and the impossible time limits it included (the aim to speed up payments) . Articles by Partners of the leading law firms of the day appeared in every issue of Building.

It was put forward that as the practice was routine and allowed for in the timetable the blame lay not with the shipâ&#x20AC;&#x2122;s Captain but with management and that corporate responsibility started at the top. It was suggested that even the CEO could end up facing imprisonment. A similar suggestion was put forward following the Deepwater Horizon oil disaster of 20 April 2010. How much of what was immediately evident as far as the Channel Tunnel project was concerned, were messages from the top, or simply a greater awareness that accidents can happen even on the best regulated sites, promoting an increased awareness of the need for safety, is unknown. It was not just taking every care to avoid deaths but also ensuring all injuries were avoided. I personally witnessed a very senior executive tell a ready mix driver that he was not allowed on site without a hard hat and work glasses, no matter how important his load was. No alcohol was permitted on site and no matches or even a lighter through the security gates to get on the manrider going into the tunnel.

I will not name the published number of partners in the top twenty law firms of 2000. Suffice to say only one firm had more than ten, and that was the firm that we worked with on the Tunnel. The same list today would show a more than tenfold increase. When HGCR was passing through Parliament it was described as a quick and dirty process designed to reduce the time taken to settle grievances. As one of the first of the new breed of adjudicators I can confirm that it was successful. In the main disputes were settled before they festered and threatened to slow the whole works. The fact that the decision could be blamed on a third party removed some of any continuing ill feeling. Soon solicitors accepted that it was best to join than argue. The fees we could charge rose dramatically.

It is tragically ironic that regulations were strictly enforced at Folkestone, but not so in France, as evidenced by the historic photo of the French labourer offering his British counterpart a cigarette as they shook hands at break-through in the centre of the tunnel. Ironic because of the 14,000 operatives employed on the tunnel, 8 of the 10 fatal accidents were on the UK side.

It is a sad reflection that even when it is a result of a contractual requirement, in many cases adjudication has become as expensive as arbitration, the spiralling cost of which was one of the reason for adjudications introduction. It is to be hoped that contracts with stepped ADR procedures, will produce quicker and less expensive results in all but the largest projects. For these the burgeoning list of dispute centres (often English speaking) such as at Hamburg, Frankfurt, Amsterdam and Paris (possibly multi lingual) and a greater number of arbitral centres such as Hong Kong and Stockholm could lead to lower cost. If this is so it is to be hoped that these cost reductions will be reciprocated throughout lower level dispute resolution.

It is equally ironic that in the various descriptions of CR I have read it is stated that companies should take into account; social, economic and environmental impacts and ensure their business is carried out ethically. Am I the only one that believes the most important word is missing from that list? The foregoing is a brief note of a few of the events and actions that have changed construction and some matters we should concentrate on when serving as an expert. In truth many are ones we should always have thought of. Many reflect wise words as important today as bygone days when they were first used.

More pertinent to health and safety was the Construction Design and Management Regulations 1994 as amended 2007 and 2015. This introduced new supervisory roles, claimed to improve business and efficiency and improvements to health and safety. It included requirement to address and produce written proof of detailed consideration of dangers, risks and storage of materials before starting work.

For example; More haste less speed. A small construction site where insufficient thought had gone into site planning. The forecast arrival of reinforcement necessitated a change of position of a site caravan, using a crane. One operative was sent to the roof to adjust the brothers to ensure they did not create a pinch point when the crane commenced the hoist. To save time the site agent started to wind up the caravan jockey wheel with the operative still on top, with nothing to hold onto. He slid off the roof of the then

The requirement for Personal Protection Equipment was introduced in 1993. It did not include shinny shoes or suits but waterproof coats and leggings. Which was a sensible improvement on the builders Donkey Jackets that were issued previously, often only to senior site staff. EXPERT WITNESS JOURNAL

SUMMER 2019

The repost to this is usually that I use planes but I cannot fly one. Which is true but I point out that once a plane is designed not even a screw can be changed in length, fixing or gauge without referring the change to a design team

sloping caravan landing painfully on the front A bar, breaking his ankle in the process. Rebar delivery was delayed whilst HSE examined the incident and I wrote a report. Safety Glasses. I had the misfortune of having to rush a welder to hospital with hot bitumen in his eye. He had been jointing pipes internally without wearing his safety glasses. I still had to wait to sign for the van keys before I could aim for the hospital.

This brings me to my final thoughts, where does the construction industry, go from here? Dame Judith Hackitt in her Grenville Towers report makes so many observations of our industry as a whole. Including in the case of short term shortages and our habit (unlike in the air industry) of substituting one product for another without even consulting anyone. Just one example of so many highly significant issues We call ourselves experts and we assume the right to judge others who have spent a lifetime in construction. As I have admitted, I made enough lack of experience mistakes and given old hands a good laugh at some of my suggestion, having spent around 50% of my time either on site or in direct construction management roles.

A little knowledge is worse than none. A relatively prosperous householder had an extension built by a local builder. The householder was proud to show wall tiling he had carried out in an extended kitchen. A new large lounge had been constructed. The owner had tiled the floor with 1m x 0.5m, thin, imported Spanish tiles. I was appointed expert witness by the builder’s solicitor when areas of the tiles started cracking. The owner’s expert produced a report laying the blame squarely on the builder, referring to excess mortar on the external wall of the cavity wall extension and numerous other instances of untidiness.

Of course many disputes revolve around purely contract or commercial issues . . . or do they? Dame Judith’s Report suggests not.

My report disagreed with most of the other expert’s report, pointing out that the tiles had been wrongly laid using the same ‘dob and dab’ method used for wall tiles not the full, specialist screed essential for these floor tiles. Needless to say my opposite number queried my knowledge and threatened to take the matter to arbitration, pointing out that he was a member of the Royal Institution. I told him to go ahead, not bothering to point out that I had been a Fellow. I presume someone whispered in his ear as I heard no more and my client cheerfully informed me he had been paid in full, as was I. I detail this case at length as it emphasises one of my pet concerns. Academically well qualified experts with no or little site experience opining on practical or every day construction issues. Would it be acceptable for me to submit my report with the equivalent lack of contract knowledge not knowing my FIDIC from my NEC 4?

Keith McMillan is principal consultant with over 40 years’ experience at McMillan Associates, Chartered Construction Consultants, providing Expert Witness and Claims Management services in; construction, light & heavy rail, utilities, port & airports and tunnelling. The consultancy also has a specialist risk management, value engineering and operational audit team. As a Chartered Construction Manager with over 40 years’ experience gained in a variety of roles, London based Keith McMillan is ideally suited to serve as an expert on construction and related disputes. Contact: Keith McMillan Tel: 0207 307 5655 Alternate Tel: 01326 212 242 Mobile: 07770 575 170

COURT REPORTS ON HOUSING & ACCOMMODATION NEEDS • • • •

Visiting to assess Abilities and Needs • Analysis of Accommodation Requirements Analysis of Existing Housing • Consideration of Future Needs Cost Assessment of meeting housing needs • Housing maintenance costs Survey and assessment of properties in terms of suitability for disability and scope for adaption

ACCIDENT REPORTS • Analysis of accidents where the design, construction, or maintenance of a building may have contributed to their cause. Contact Name: Robin Hill - Tel: 01619287143 Email: robinhillrhca@btinternet.com Website: halearchitect.co.uk Area of Work: Cheshire and Nationwide ROBIN HILL CHARTERED ARCHITECT LIMITED - 93 Ashley Road, Altrincham, Cheshire, WA14 2LX

EXPERT WITNESS JOURNAL

SUMMER 2019

Duxbury Tables At A Glance - What Are the Risks? Imagine a divorce hearing, both parties aged 60, where the following judgment is given: “After dividing the assets appropriately, as I have determined, I find that Mrs X should receive an annual income of £50,000 per annum, after tax, (and after her state pension is taken into account) from Mr X for the remainder of her lifetime. In order to achieve a clean break, I propose to replace this by ordering a capital sum. My method for doing this already allows for the likely occurrence and timing of both you and your ex-husbands’ deaths, but, in addition, I need to make an allowance for the fact that he may lose his job.

in year 1, 3.75% capital gains, then rounded up for, say, 15% tax, so 6.868% net growth). This seems high in today’s financial environment, but there is some justification – in times of recession and uncertainty, returns are low – but employment is less secure.

Having ascertained the amount I would grant you if I had ignored this possibility, I award you 60% of this amount”.

My working solution to this dilemma is to use a spreadsheet to plot the progress of our lady, assuming she lives to exactly her life expectancy (here, to 87.8 years, from Table 10 of At A Glance).

Duxbury tables are used extensively by the legal profession to capitalise an order where an ex-husband pays an inflation linked annual amount to his ex-wife – for life.

My results are shown in the following table: Female Age 60 to Age 88.6 Age 60 Life Exp 27.8, say 28 years Age Fund Outgo Exact Age 60 £906,000 £50,000 61 £901,422 £51,500 62 £908,294 £53,045 63 £913,988 £54,636 64 £918,372 £56,275 65 £921,305 £57,964 66 £922,635 £59,703 67 £922,199 £61,494 68 £919,819 £63,339 69 £915,303 £65,239 70 £908,447 £67,196 71 £899,028 £69,212 72 £886,808 £71,288 73 £871,530 £73,427 74 £852,917 £75,629 75 £830,672 £77,898 76 £804,474 £80,235 77 £773,979 £82,642 78 £738,818 £85,122 79 £698,592 £87,675 80 £652,875 £90,306 81 £601,206 £93,015 82 £543,094 £95,805 83 £478,009 £98,679 84 £405,382 £101,640 85 £324,603 £104,689 86 £235,018 £107,830 87 £135,924 £111,064 88 £26,567 £114,396

No-one suggests that some allowance should not be made for husband’s possible job loss. On the other hand, a 40% discount seems a bit heavy. But is it? You may also ask – why do wives, and their legal teams, accept this? The answer is, it is hidden by the information provided (or rather, not provided) with those tables. Although the underlying assumptions for Duxbury are stated, the algorithm used to derive the numbers is not published. Here, it differs from other professional products. To derive my 40%, I have started with quoted market annuity rates. Some argue that this is not appropriate. I would say that, in a world where capital is no object, it would be the best solution. This is because: 1. Wives would not need to worry about investment risks, and fear running out of money (a very real risk – see the Andrzej Bojarski reference below). Risk of (ex) husband losing job and the risk of investment underperformance are not necessarily correlated. 2. Investments held might boom, and wives become unduly enriched. This could not happen with a pension annuity. The calculations for my 40% are approximate, and available on request. However, the main omission of Duxbury is that it addresses the Husband, and NOT the wife (in the usual cases where otherwise the husband would be paying the wife). She might say – OK – so my ex might have been paying me £50,000 – but I cannot take this as guaranteed. So how much should I draw down from my capital sum? The answer is – whatever you do, don’t assume any level of income is guaranteed – if your fund depletes, you need to live within the income your depleted fund can then generate, and no more.

I have differenced the £10,000 per annum and £60,000 per annum tables, to avoid complications due to state pension adjustment. Red figures show where formulae differ, and are for the convenience of the spreadsheet user.

Duxbury assumes a gross investment return of around 8% per annum (3% income return, reduced EXPERT WITNESS JOURNAL

Pre-Growth Fund £856,000 £849,922 £855,249 £859,351 £862,096 £863,341 £862,933 £860,705 £856,480 £850,064 £841,251 £829,816 £815,520 £798,103 £777,288 £752,773 £724,239 £691,337 £653,696 £610,917 £562,569 £508,192 £447,289 £379,330 £303,742 £219,914 £127,188 £24,859 -£87,830

SUMMER 2019

This pattern might be seen as the “Ideal Duxbury” scenario, where the income “just” persists long enough. Although we seem to fail right at the last minute, this is misleading. I have assumed that the first £50,000 is drawn on day one – it is more likely to be drawn monthly. If I assume that income is taken at the END of the year in question, the final picture is far rosier.

Windsor Actuarial Consultants is an independent firm of actuarial consultants with considerable expertise in derivatives and pensions. Our excellent actuarial and consultancy is complemented by our cuttingedge software and technical support. We are an owner-managed business. Our consultants are both major stakeholders in the firm and qualified actuaries. They can provide the advice our clients need and they also have a vested interest in ensuring that they get the best service possible.

There then appear to be two lessons for “Duxbury Wives” to take from this – first, curtail your spending in the early years if at all possible, and, second, monitor your award and income regularly – at least every year.

The level of personal commitment from us could not be higher.

On reading the useful blog – http://www.andrzejbojarski.com/blog/clean-breaks-shouldyou-doubt-the-duxbury-tables the perils are obvious. However, moving away from “safer” investments brings about greater risk of loss of capital – and, as can easily be shown, early falls may “gear up” a more rapid fund depletion. In technical terms, the risk is that wives spend the credit risk premium for the husband job loss built into the otherwise apparently optimistic investment return assumptions.

Our clients include interest rate swap victims of all sizes, trustees and sponsors of pension schemes, financial advisers, solicitors and individuals.

Suite 46, Albert Buildings 49 Queen Victoria Street London EC4 4SA Work undertaken worldwide

The other takeaway is that Andrzej shows a single example, which clearly may be atypical. Despite Duxbury rulings being in place for around 25 years, there appears to have never been a forensic study of the adequacy or otherwise of past awards. If that is true, then such a study is long overdue.

Tel: 020 7653 1908 DX 98948 CHEAPSIDE 2 Fax: 0207 681 2778 mail@windsorac.com www.windsorac.com

Peter Crowley, established Windsor Actuarial Consultants in 2005, combines a wide experience of financial products and pensions with a speciality for explaining the concepts in plain English. Peter also advises solicitors and other professionals on the individual aspects of pensions in divorce, compensation on the loss of pension rights, pensions mis-selling and reversions. He has produced a substantial number of reports on this subject,involving cases of varying complexity, and including overseas pensions

For anyone interested, I can supply a spreadsheet similar to the above, age and award specific, in order to assess more accurately a future “Duxbury Position”, and see what experience for that case shows with regard to future drawdown scope.

Need expert advice on windows, doors, unsafe glazing, product failures and glazing standards? • Site inspections • Expert witness reports • Glass calculations

For assistance contact: GGF Consultancy Department consultancy@ggf.org.uk 0207 939 9103 / 0207 939 9101 40 Rushworth St London SE1 0RB EXPERT WITNESS JOURNAL

SUMMER 2019

Forensic Delay Analysis of Linear Projects Using Linear Scheduling Methodology tools to simplify forensic delay analysis for dispute resolution by Dimitrios Tousiakis, Director, HKA Introduction Clear presentation when demonstrating a fact in construction dispute proceedings is essential. It can dictate the outcome of a dispute and applies equally to claim submissions and any independent testimony required in Court, Arbitration or other formal proceedings. Because of the complexities arising in delay analysis and its terminology, it is often characterised as a “dark art”. A simple presentation of a sound methodology arriving at clear and persuasive conclusions, goes a long way to demystify this so called “dark art”. The nature of the construction project and the details of the dispute usually dictate the most appropriate delay analysis method to be applied. Here, two fundamental scheduling methods are examined for their application to projects of a “linear” nature (such as roads, bridges, tunnels, etc.):

• The Critical Path Method (“CPM”); and • The Linear Scheduling Method (“LSM”). CPM is a scheduling method that is more widely used for construction programme development and management. However, for linear projects, the lesser known LSM is a more informative approach. This methodology uses graphical representation in a two-dimensional (2D) diagram within time and location axes. In this article I review the potential and benefits of LSM graphs for the purposes of forensic delay analysis of linear construction projects. A hypothetical case study is used to demonstrate how as-built information can be incorporated into the LSM graphic to demonstrate the various project parameters, the actual progress of works, and the cause and effect of delay events.

Above, examples of typical linear projects (i.e. highway, pipeline, railway and tunnel projects) out by programming software), determines the critical path and calculates float.”

What is a linear project? “Linear project” is the term that characterises a construction project with longitudinal, spatial and repetitive construction activities. Examples of linear projects are highways, pipelines, bridges, railway track systems and tunnelling.

CPM is the most commonly known and used scheduling method in construction management. Schedules are prepared by inputting data for individual activities (i.e. durations, dates, logic relationships, dependencies, etc.) into proprietary programme software tools. The software then applies algorithms to calculate free float, total float, critical and near critical paths for the combined elements of the project.

The main characteristics of linear projects are: • Repetitive identical activities along the length of the project (for highways, pipelines, etc.), • Repetitive activities carried out irrespective of location and without a dependency on any particular spatial sequence. For example, if one section of a pipeline is temporarily inaccessible, work might still progress along other sections;

CPM is a valuable tool that can display graphical visualisations, normally in the form of a Gantt Chart. However, because CPM focuses primarily on the time aspect of construction projects, the outcome is a onedimensional (1D) overview. Caution is required when using this scheduling methodology because several important elements are not factored into the process2.

• The timely completion of linear projects is highly dependent upon efficient productivity rates and optimum resource utilisation for repetitive activities.

CPM VS LSM The CPM and the LSM are both scheduling and programming methods used for developing, managing and monitoring the time aspect of construction projects.

For example: • Spatial analysis and the constraints / parameters of the physical layout of the site are not automatically considered. CPM algorithms work on activity and relationship inputs and rely on the planner to avoid conflicting spatial requirements on site;

CPM The Delay and Disruption Protocol published by the Society for Construction Law1 describes the CPM programming method as:

• Optimum productivity rates for construction elements activities are not visually demonstrated in typical CPM graphs; and

“The methodology or management technique that, through the use of calculation rules (usually automatically carried EXPERT WITNESS JOURNAL

SUMMER 2019

• Resources requirements, availability, cost, productivity levels and continuity of work are not visually demonstrated in typical CPM Gantt Charts.

• Bars depicting an activity or constraint at a specific location for a specific period of time (for example, construction of culverts at specific locations of a road project); and

An example of a typical CPM graph (Gantt Chart) is presented in Figure 2 (below).

• Blocks depicting an activity or constraint at a wide area of the site arising for a specific period of time (for example, areas of restricted access).

LSM LSM is a graphical method, the output of which is a two-dimensional (2D) diagram that depicts both time and space in one chart.

An example of a typical LSM graph is presented in Figure 3 (on next page). Additional information can be added to LSM graphics to enhance the overall picture. This may include the site’s profile section drawing or the number of available resources at any given time and other relevant information.

Unlike CPM which is activity-focused, LSM is production-focused. Individual activities are represented by single lines on a chart, whose gradient is proportional to the rate of productivity. Thus, the graphical output shows the combined relationship between duration and output at a particular time and in a particular location.

A comparison between CPM and LSM graphs is pictured in Figures 2 and 3 (below and overleaf) and shows the construction works of a theoretical pipe-laying linear project, including the construction of a culvert and a site access restriction.

The use of LSM enables: • Avoidance of impact from space restrictions on site; • Optimum productivity of all activities, ensuring that one activity does not adversely impact upon production rates of another; and

The CPM graphical visualisation is in the form of a Gantt Chart. Time is depicted along the horizontal axis with the activities depicted in the form of bars.

• Continuity / uninterrupted working of resources.

By comparison, the LSM graphical visualisation uses a two-dimensional graph showing time on the vertical axis, and location on the horizontal axis, (i.e. a steeper line reflects a slower activity)4.

The LSM methodology is particularly suitable for application to projects with a longitudinal or spatial dimension, or where repetitive activities occur and optimum productivity rates are essential to achieve timely completion3.

Application of LSM in Forensic Delay Analysis Construction dispute resolution processes often require a retrospective delay analysis to demonstrate the effect of delaying events5. The importance of a clear and easily understandable delay analysis presentation, within a construction claim or other dispute resolution proceedings, cannot be overstated.

LSM graphs display two axes; one for time and the other for location, with data symbols depicting: • Activity lines with different styles to identify different activities or resource crews (for example, the excavation activity of a road project). The gradient of each activity line depicts the productivity rate of that activity;

Below, Figure 2 example of a typical CPM graph

EXPERT WITNESS JOURNAL

SUMMER 2019

Above, Figure 3 example of a typical LSM graph Retrospective delay analysis methodologies that are based on factual data and linked to contemporaneous as-built project records (for example the “as-planned versus as-built” methodology6), provide realistic results when compared to theoretical prospective delay analysis methodologies (for example the “impacted as planned” methodology7).

activities / events in relation to the physical conditions in a single graph.

CPM scheduling methods are frequently used in forensic delay analysis. This method has several limitations, particularly when analysing linear projects8. CPM graphs do not visually demonstrate changes in productivity rates, for example, caused by potential disruption. Furthermore, CPM graphs do not visually identify the location of activities and/or restrictions that occurred during the project.

Below is a hypothetical case study providing an example demonstrating how the as-built information can be incorporated into LSM graphical tools and what observations / conclusions can be produced by reviewing the LSM graphs for the purposes of forensic delay analysis of linear projects.

LSM scheduling methods used for forensic delay analysis of linear projects can display valuable insight of the actual progress of the works in relation to location. LSM can graphically depict changes in production rates, the interrelationship between resources, locations and durations.

This hypothetical case study assumes a bridge construction of 4km built using the “span-by-span” method.

The delay analyst, by reviewing and analysing the LSM graphs, can make considerable observations of the actual progress of the works and structure the delay analysis around the LSM graphs.

Case Study: Forensic Delay Analysis of a Bridge Construction Project

The main characteristic of the span-by-span methodology is that two consecutive piers must be constructed before the launching girder can step on them to lift and place the pre-cast segments of the bridge platform. As a result, for the bridge platform construction to proceed uninterrupted, the piers must be constructed sequentially away from the start point in the direction of the erection of the bridge platform.

Its visual representations are easy to understand and read, even for those with little to no experience in construction programme management or the project specific details. They are also useful for those who become involved in the project during the latter stages, or where dispute resolution processes introduce new individuals, such as mediators, adjudicators, arbitrators and judges.

The demonstrative graph in Figure 4 shows that pier No. 1 (P1) is to be constructed first, followed sequentially by P2, P3 and P4. The piers require underground piling foundations, and as a result,

Contemporaneous as-built information can clearly and concisely display project history or specific EXPERT WITNESS JOURNAL

SUMMER 2019

Plotting data for the planned and actual progress of the launching girder operation into the LSM graph highlights periods and locations of (a) slower than planned progress; (b) any work stoppages; and (c) any changes to the planned sequence. These observations can then form the basis of further forensic examination in order to identify the cause and effect of these delay events.

piles must be driven before the pier erection could commence. The planned (and logical) sequence of the main construction activities was as follows: 1) Piling foundation construction (installation of piles), followed by; 2) Piers erection, followed by; 3) Lifting of bridge platform segments.

Figure 6 on the next page, depicts a theoretical LSM example where:

Timely completion of the project was reliant upon the efficient and uninterrupted erection of the bridge platform segments from the launching girder. This required work scheduled to ensure that:

• The dotted black activity line represents the planned progress of the launching girder;

1, The actual production rate of the launching girder aligned with the planned production rate; and

• The straight black activity line represents the actual progress of the launching girder;

2, The erection of the piers followed a sequence and production rate (in the direction of the erection of the bridge platform), to avoid stoppages or disruption to the launching girder operation.

• The gradients of the respective activity lines depict the planned and actual productivity rates. The steeper the gradient indicates less work completed in the period, thus a lower rate of productivity;

Figure 4 and Figure 5 below depict the “span-by-span” bridge construction sequence.

EXPERT WITNESS JOURNAL

SUMMER 2019

• The arrows represent the direction of travel of the platform erection and the actual productivity (gradient). Red arrows highlight periods of lower productivity rate than planned;

Figure 7 on the next page depicts an enhanced LSM graph where the following enhancements have been added: 1) Actual progress of the piling works (green diamond symbols);

• Some significant locations are shown in yellow circles, for annotation purposes (i.e. location A, B. C, etc.); and

2) Actual progress of the pier construction works for each pier (blue bars);

• The observations arising from the LSM graph are listed in the grey boxes to the right of the graph and are numbered with roman numerals (I, II, III, etc.)

3) Actual progress of the piling design (yellow bars); and 4) Actual access restrictions to areas of the site (grey blocks).

This simple LSM graph with explanatory notes efficiently depicts a comparison of planned vs actual progress of the works and highlights specific delay events.

LSM graphs provide an easy to understand snapshot that convey the actual causes of delays highlighting the periods of low productivity where further disruption analysis can be focussed to identify the specific cause and effects. The disruption analysis

Further forensic investigations into each delay event enables enhancement of the LSM graph to include additional as-built information that informs detailed conclusions as to specific causes of the delays. EXPERT WITNESS JOURNAL

SUMMER 2019

helps to demonstrate whether works were disrupted by contract delay events, or, whether the Contractor was not able to perform efficiently.

Limitations of the LSM in Forensic Delay Analysis LSM graphs used for forensic delay analysis do have limitations.

LSM graphs can be further enhanced with data from contemporaneous records to show relevant impacts upon progress and the rate of productivity. For example, the number of available resources and/or the amount of rain per month can be plotted alongside progress if this is a relevant factor. Figure 8 above depicts a LSM graph developed to include available resources for each month. EXPERT WITNESS JOURNAL

Similar to all the retrospective delay analysis methods, a typical problem that is often encountered is the availability, format and accuracy of the contemporaneous data records. Creation of LSM graphics requires the delay analyst to import a vast amount of as-built data into the proprietary software application. 100

SUMMER 2019

technical ability of the analysts.

A lack of contemporaneous or inappropriately formatted records can be problematic resulting in a time consuming and resource intensive analysis.

The LSM two-dimensional (2D) graphical representations (“time-chainage graphs”) enable a snapshot view and valuable insight comparing, at a glance, planned vs actual performance and productivity, in time and space.

LSM for the purposes of forensic delay analysis is a graphical method, that does not rely upon an underlying mathematical model. Various published scientific papers have attempted to define a mathematic model for LSM analyses, but these have not been widely adopted in proprietary software packages. Consequently, the conclusions deriving from LSM graphs, especially regarding the critical/driving activities, are based on the delay analyst’s observations, construction knowledge experience and common sense, rather than automated software calculations.

Further forensic analysis can then focus on key events or periods. LSM graphs are practical, relatively easy to understand, and convey a wide range of information in a format that is easy to assimilate. These are important attributes to consider when supporting claims or opinions before a wider audience in formal dispute resolution proceedings.

Conclusion When applied to linear projects (i.e. highway, pipeline, bridge, railway, tunnelling projects, etc.), LSM can provide a more thorough and informative analysis of the cause and effect of delay events when compared to the CPM method.

About the Author Dimitrios Tousiakis is a Director at HKA based in Dubai, UAE. He is a Delay Analyst with international experience, both in delay analysis for dispute resolution and directly in the construction industry.

As with any delay analysis, the output of LSM is dependent on the quality and accuracy of the raw data available at the input stage and the experience and

Dimitrios has been appointed as Delay Expert Witness for an ICC Arbitration and has also provided independent expert opinion to contractors and

EXPERT WITNESS JOURNAL

101

SUMMER 2019

3, Some examples of published scheduling methodologies which address similar objectives but with different terminologies are listed below: Methodologies for unitary projects or work elements (floors, houses, apartments, stores, or offices), include: •Line of Balance (LOB) (O’Brien 1969; Carr and Meyer 1974; Halpin and Woodhead 1976; Harris and Evans 1977); •Construction Planning Technique (CPT) (Peer 1974; Selinger 1980). For longitudinal projects (highways, pipelines, tunnels, etc.), published methodologies include: • Time Versus Distance Diagrams (Gorman 1972); • Linear Balance Charts (Barrie and Paulson 1978); • Velocity Diagrams (Dressler 1980); • Linear Scheduling Method (LSM) (Johnston 1981; Chrzanowski and Johnston 1986; Russell and Casselton 1988).

employers on multiple occasions. In the past, he has carried out delay analysis and has assisted appointed delay experts on a range of projects including highrise buildings, airports, health care, rail and oil & gas. Dimitrios holds a MSc in Civil Engineering and Business Management by Imperial College London, UK and a BEng in Civil Engineering by Aristotle University of Thessaloniki, Greece (5-years attendance). He is a Chartered Civil Engineer, a member of the Institution of Civil Engineers (ICE) and the Technical Chamber of Greece (TEE).

4, There are numerous sophisticated scheduling software tools available for producing graphs for both CPM and LSM. For this paper and for demonstration purposes only, all the CPM graphs have been created in Primavera P6 and all the LSM graphs in Microsoft Office applications, which is a very basic way of creating such scheduling graphs. 5, Retrospective delay analysis is an analysis performed after the delay events (or the whole project) has completed (i.e. a delay analysis looking backwards to what actually happened) 6, Defined by the SCL Delay and Disruption Protocol 2nd edition – February 2017, para 11.6(d)

References 1, SCL Delay and Disruption Protocol 2nd edition – February 2017, Appendix A (p. 62)

7, Defined by the SCL Delay and Disruption Protocol 2nd edition – February 2017, para 11.6(a)

2, This applies to the typical CPM scheduling via Gantt Charts. More recent CPM methods have been developed which can consider both space and time (for example 4D scheduling) but are not widely used and require proficient use of advanced and sophisticated software.

8, Projects which are characterised primarily by their longitudinal spatial nature and/or by their repetitive construction activities.

Mr John Roe ICIOB FNAEA

Consultants in Acoustics, Noise and Vibration.

Expert Valuation Surveyor, in practice since 1970.

EUR ING

Valuation Surveyor, Valuation Expert

Regularly advise/provide evidence in matters of civil litigation involving both commercial and residential properties, including those affecting asset values, landlord and tenant matters and matrimonial disputes.

Neil has over 25 years experience as an experrtt witness in acoustics, noise and vibration control. He has prepared reports and presented evidence in courrtt (including the High Court) and at planning inquiries. He has acted as a Single Joint Experrtt. Neil has experience and expertise in, but not limited to:

Familiarity with Court procedure and cross examinations. Ability to produce reports that comply with CPR Part 35. Experienced in actions involving both the County Court and the High Court. Currently providing assistance in a number of High Court cases.

t /PJTF BOE WJCSBUJPO OVJTBODF t 1MBOOJOH BQQFBMT BOE BTTFTTNFOUT t #VJMEJOH BDPVTUJDT t 4PVOE JOTVMBUJPO t /PJTF BU XPSL OPJTF JOEVDFE IFBSJOH MPTT t -JDFOTJOH t $POTUSVDUJPO OPJTF BOE WJCSBUJPO

Contact Details Tel: 0207 607 5001 Mobile: 07879 841 502 Email: john.roe@drivers.co.uk Website: www.drivers.co.uk Drivers & Norris 407-409 Holloway Road, London, N7 6HP

EXPERT WITNESS JOURNAL

Neil Jarman

BSc (Hons), CEng, MCIBSE, MIOA

www.colejarman.com Email: neil.jarman@colejarman.com Te T el: 01932 829007 Mobile: 07973 319634 $PMF +BSNBO -UE +PIO Cree House, 24b High Street, Addlestone, Surrey, KT15 1TN

102

SUMMER 2019

Bresco v Lonsdale Court of Appeal by Andrew Weston, Fenwick Elliott LLP agreed that the injunction granted to restrain the continuation of the adjudication was the appropriate remedy in the circumstances. "

The Court of Appeal has recently considered two appeals in which the interplay between the construction adjudication process and the insolvency regime was considered; Bresco Electrical Services Limited (in liquidation) v Michael J Lonsdale (Electrical) Limited (see my blog of 28 September 2018 on the TCC decision) and Cannon Corporate Limited v Primus Build Limited.

Utility Coulson LJ considered that adjudication and the Insolvency Rules regime were not compatible. On the facts, there was nothing to demonstrate that it would be just or convenient for the underlying adjudication to continue. On the evidence, Bresco had been insolvent for over three years before the adjudication referral, there was no suggestion Bresco could ever trade again and Lonsdale’s cross-claim had been issued by the time of the adjudication. There was no good reason to make Lonsdale incur the costs of defending a claim in adjudication that could not be enforced.

The appeals provided the opportunity for the Court of Appeal to deal with the extent (if at all) to which an adjudicator can decide claims made by an insolvent company and whether such decisions could then be summarily enforced. This, Coulson LJ remarked, was an issue that had not remained free from doubt since it arose in the decision of the Court of Appeal in Bouygues (UK) Limited v Dahl-Jensen(UK) Limited nearly 19 years ago.

Conclusion Although Coulson LJ did not accept that Bresco’s right to refer a dispute to adjudication was automatically lost when they went into liquidation, he agreed that the injunction granted to restrain the continuation of the adjudication was the appropriate remedy in the circumstances.

Bresco’s appeal Bresco and Lonsdale fell into dispute following Bresco’s departure from site and cross-allegations of wrongful termination. Bresco went into liquidation in March 2015 and its liquidator commenced an adjudication against Lonsdale over two years later. Lonsdale sought an injunction to prevent the continuation of the adjudication, which Fraser J granted in the TCC last year on the basis that (1) adjudicators did not have jurisdiction to deal with claims advanced by companies in insolvent liquidation; and (2) the “utility” argument where Fraser J (quoting EdwardsStuart J) said he was “unable to see how it would be either just or convenient to permit an adjudication to continue in circumstances where the decision of the adjudicator will be incapable of enforcement.”

The decision of Fraser J was upheld, not as perhaps might have been expected on the grounds of jurisdiction, but on the grounds of practical utility.

Court of Appeal Judgment The Court of Appeal upheld the injunction against Bresco, but on a different basis to the decision at first instance, focusing on the utility argument. Jurisdiction

A series of adjudications took place between the parties, the second of which decided that Cannon was in repudiatory breach. In January 2017, Primus issued court proceedings claiming damages for the repudiatory breach and the sums awarded in the third adjudication. Primus obtained a freezing order up to the value of £750,000.

Cannon’s Appeal The factual background to the Cannon appeal concerns a Creditors Voluntary Arrangement (“CVA”) and is significantly different to circumstanceswhere a liquidator seeks to recover sums to be distributed to the creditors of an insolvent company.

Coulson LJ considered there was no reason to treat adjudication any differently from litigation or arbitration, which insolvent parties are able to pursue. He found, contrary to the judgment at first instance, an insolvent company’s contractual claim did not cease to exist at liquidation:

In July 2017, Primus entered into a CVA. The CVA had been accepted as, although the company was insolvent, there was a clear way forward that would result in all creditors being paid in full, and Primus continuing to trade. This was a key distinction with the insolvent liquidation in Bresco.

“…technically the adjudicator would have jurisdiction to consider the claim advanced by a company in liquidation”.

In March 2018, Primus commenced a fourth adjudication, claiming damages caused by Cannon’s repudiation. Primus was awarded in excess of £2.1 million. The adjudicator considered, and almost entirely rejected, Cannon’s cross-claims in reaching the decision.

However, was Fraser J right to grant the injunction? " Although Coulson LJ did not accept that Bresco’s right to refer a dispute to adjudication was automatically lost when they went into liquidation, he EXPERT WITNESS JOURNAL

103

SUMMER 2019

Primus commenced enforcement proceedings. Cannon accepted judgment may be entered but sought a stay of enforcement. HHJ Waksman QC declined to grant the stay (applying the principles set out in Wimbledon Construction Co 2000 Limited v Vago) because the financial position of Primus had arisen partly due to Cannon’s refusal to pay the monies awarded to Primus.

S.A.WALSH Specialist Consulting Engineers and Expert Witness The Forensic Engineering Consultants to the Legal Profession

Chartered Building Services Engineer; Fellow Chartered Institute of Plumbing and Heating Engineers; Chartered Public Health Engineer; Chartered Water and Environmental Engineer; Chartered Occupational Safety and Health Practitioner; Carbon Monoxide Forensic Engineer; Accessibility Building Services and Plumbing for the Disabled; Accredited Expert Witness.

Court of Appeal Judgment The Court of Appeal had to decide whether HHJ Waksman QC was wrong to enter summary judgment for Primus and decline the stay. Coulson LJ agreed with HHJ Waksman’s judgment in relation to both issues. As Primus’ financial difficulties had arisen substantially because of Cannon’s refusal to pay, “…it was plainly open to [HHJ Waksman QC] to exercise his discretion against granting a stay of execution”.

27 Passey Placem Eltham, London SE9 5DA. DX 32515 ELTHAM Tel: 0208 850 1918 Mobile: 07786 070 333 e-mail: stephen@sawalsh.com

Conclusion This judgment provides clear reasoning why it will only be in very limited circumstances that a company in liquidation would be allowed to proceed with an adjudication, even though the right to adjudication is not automatically lost on entering liquidation. This recognises the potentially important differences between a company in liquidation and a company in a CVA.

The Complete Expert Witness Service

Chartered Safety and Health Practitioner

In practical terms, one would not expect claims to be pursued in adjudication by the liquidator of an insolvent company. However, the onus is on the responding party to take appropriate action to seek an injunction in circumstances where such a claim is referred to adjudication. The court should grant the injunction if the adjudication is an exercise in futility. However, on some occasions (such as where there is a CVA that shows a clear way forward) the courts will allow an adjudication to proceed.

LAMBERTS IS A FIRM OF CHARTERED SURVEYORS WITH OFFICES IN LONDON AND CARDIFF

We offer Expert Witness Valuation Services in the London area

Fenwick Elliott is the UK's largest construction and energy law firm. They offer a full range of legal services for construction, engineering and energy projects worldwide.

Contact us on: Tel: 0207 278 8191 Email: post@lambertsurv.co.uk Lamberts Chartered Surveyors Aztec Row 3 Berners Road London N1 0PW

www.fenwickelliott.com

the hampden consultancy CONSULTING ENGINEERS - EXPERT WITNESS - MECHANICAL & ELECTRICAL SERVICES Since 1993 we have specialised in assisting clients in resolving technical and contractual problems with respect to mechanical & electrical engineering services that can (and often do!) occur on many construction projects, whether during the pre-contract or construction phases, or indeed post-contract. As such we have been retained either as expert advisers, party-appointed experts or as single joint experts in respect to disputes between building owners/end-users & their contractors or between contractors & their sub-contractors concerning technical and/or contractual aspects related to mechanical & electrical engineering services. We have also acted for clients in issues involving professional negligence of M&E consulting engineers.

Please call Bob Swayne EngTech AMIHEEM for an initial discussion without obligation on 01494 868 868 or 07768 497 005 or visit our website on www.thehampdenconsultancy.com for more details

EXPERT WITNESS JOURNAL

104

SUMMER 2019

No Slip-ups as Serious Injury Claim is Successfully Defended at Trial Clyde & Co are pleased to report the successful defence of a claim after a site supervisor sustained a serious arm injury following an alleged accident at work. to see how non-slip paint or grip tape would have avoided the accident on the balance of probabilities.

Background The accident occurred when the Claimant, then a site supervisor employed by the Defendant, was entering his porta-cabin office at a site depot. The Claimant alleged he slipped on a raised weather strip which formed a threshold at the entrance of the cabin.

We submitted that in order for the Court to make such a finding it would require: u evidence as to the slip resistance of the surface that the Claimant encountered

u the particular type of non-slip paint/grip tape that should have been applied.

The Claimant's expert did not carry out any objective tests in relation to the first issue and made no specific recommendations in relation to the second issue.

The Claimant underwent further surgery abroad which brought about a significant improvement in his condition.

Proceedings The Claimant bought a claim against his former employers on the basis that the accident was caused by the Defendant's breach of duty. The claim was valued in excess of ÂŁ150,000. The case involved two liability engineering experts giving oral evidence at a 2 day trial.

We were confident in the strength of our defence and proceeded to a final hearing.

The Claimant pleaded his case pursuant to the Occupiers' Liability Act 1957 and/or in negligence. He alleged that the Defendant failed to: install a rubber non-slip inlay within the weather strip threshold; or apply non-slip paint/grip tape to the threshold. The Claimant's expert also stated that various British Standards applied to the weather strip/threshold of the porta-cabin, and that these had not been complied with by the Defendant. In response, our Defence was that: There was ambiguity surrounding the accident and whether the Claimant in fact tripped, rather than slipped, as the medical records recorded a tripping incident. The Claimant had presumably been in and out of the cabin on many occasions before the accident without difficulty. Furthermore there were no other accidents at this site and they have had no report of a similar accident. The Court of Appeal decisions in Marks & Spencer v Palmer [2001] EWCA Civ 1528 and Taylor v Wincanton Group Ltd [B3/2009/0991] suggest that the Courts should be slow to characterise every day features of steps/entranceways as actionable breaches of duty. Both cases stressed the need for realism when considering hazards of this kind that occur widely. If the Claimant was able to establish the breaches of duty alleged, causation was not proven. It was difficult EXPERT WITNESS JOURNAL

105

SUMMER 2019

Outcome The case was heard at a 2 day trial at Brighton County Court and the Claimant's case was dismissed in its entirety. What can we learn? The case gives comfort to employers and/or occupiers of land who have porta-cabins on site throughout England and Wales, and provides guidance going forward as to how the Courts will deal with such a claim. The emphasis we placed on previous cases stressing the need for practicality when considering everyday hazards supported our position. This is a good example of a case in which design becomes a key feature in respect of whether various British Standards apply to the design of stairs, ladders and walkways. The Claimant's efforts to place fault at the door of the Defendant for the design of the porta-cabin were unsuccessful.

Engineering Expertise for the Generation, Power, Process, and Manufacturing Industries

We engaged our expert engineers early in the claim to allow us to ensure that the Defence of the claim was as strong as possible. These efforts were rewarded in the successful dismissal of the claim.

Personal Injury

Plant, Machinery, Electrical Systems, Mechanical Handling, Construction

UK and International www.rbands.co.uk enquiries@rbands.co.uk +44 (0)1298 871173

The claim was handled by Paul Smith, Legal Director, of Clyde & Co LLP, Casualty, London. Matthew Boyle of Crown Office Chambers provided representation at Court.

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

Eur Ing Dr. Robert Brown Electrical, Electronic and Control Engineer Providing consulting and expert witness services to the legal, industrial sectors. media and private individuals. An expert witness in the fields of electrical, electronic and control engineering. A renowned expert in the operation and design of electrical fuses, circuit breakers and other electrical fault protection systems, specialising in how these devices operate in domestic and industrial systems with relevance to the faults generated by domestic appliances and industrial equipment. Robert’s expertise also includes the design and operation of electrical and electronic control systems for domestic and industrial environments including cable wiring, electrical current switching, electrical power generation and utilisation, automatic (computer) control of domestic and industrial process, sensory and sensor systems including parameter data capture and accurate data ‘representation’. Robert has provided expert and legal representation, acting as a single joint expert in numerous cases, having also acted as an expert working directly with private individuals, solicitors, barristers and other legal professionals. He has extensive court experience ranging from International Courts to County Courts. Robert also has media experience having appeared on national television for the BBC, giving advice and evidence for the consumer protection series of programs ‘Don’t get done get DOM’ and XRay, BBC Wales version of ‘the popular primetime BBC program ‘Watchdog’ Robert undertakes instructions nationwide Telephone: +44 (0) 1709 739228 - Mobile: +44 (0) 7976250624 Email: robertbrown@robertbrown.uk.com - Web: www.robertbrown.uk.com The Technology Centre, Advanced Manufacturing Park, Brunel Way, Catcliffe, Rotherham, South Yorkshire, S60 5WG

EXPERT WITNESS JOURNAL

106

SUMMER 2019

CaseLines A Question and Answer with CaseLines CaseLines is the world’s most comprehensive digital evidence management solution for national and local governments, and courts. Our platform allows legal teams to efficiently and securely prepare, collate, redact, share and present evidence/legal bundles, documentary and video evidence in a single system. Prosecutors, lawyers, barristers and judges in civil and public law cases use CaseLines globally, including in England, Wales, Kenya, Dubai and Abu Dhabi. The platform holds over 300,00 cases and over 100 million pages of evidence and we are now looking to gain a market presence in North America. What areas of law do you cover e.g. family, civil, criminal? CaseLines is the only cloud-based evidence management platform that is used in criminal, civil and family law cases, as well as being used by the solicitor’s disciplinary tribunal, local governments and law firms.

What training do you think that experts should undertake? The use of digital evidence management means that expert witnesses require minimal training to be able to be an effective subject matter expert in the court room. CaseLines offer’s the ability to create as many sub-bundles from the master evidence bundle, allowing an expert witness to be given access to only the evidence that they are required to refer to and present in court.

Local governments are under increasing pressures from diminishing budgets and ever-growing case demands, yet they still need to effectively deliver a range of services. In contrast, law firms are under increasing pressure from growing global competition and corporate insourcing. In both instances, CaseLines offers a reliable cost-effective solution that delivers secure storage, alongside facilitating collaboration both in and out of court. The complete evidence management platform can therefore be implemented across multiple areas of law.

Furthermore, productivity and presentation tools within the platform such as page direction and presenter mode allow for either the expert or a court clerk to drive the presentation of referred to evidence to the court. This results in a more efficient testimony, with the expert not being interrupted by delays whilst parties, judges and juries find the section or page in a paper bundle.

How can CaseLines make an expert’s testimony easier? CaseLines can make an expert’s testimony easier by providing an easily searchable evidence management system to review key information anytime, anywhere. This means they can focus on their specialist subject rather than being distracted or caught up in the court proceedings.

What time savings does ‘digital evidence’ offer? CaseLines provides the latest legal technology to refine legal practices and drive efficiency in an increasingly overstretched system. Traditionally, hours are spent manually compiling and checking documents in evidence bundles before they go to court. This practice increases file preparation time and absorbs work hours that could be usefully employed elsewhere. With CaseLines, duplicate documents can be detected and removed at the click of a button. This means less wasted effort and more time to focus on the important work for a case, with users already reporting up to 95 per cent time savings.

Moreover, many expert witnesses will work internationally. CaseLines offers them the ability to collaborate more effectively with lawyers across multiple countries and time zones. In fact, the system now enables experts to provide their testimony via secure video link directly into the courtroom, minimizing disruption to their everyday careers and removing the need to travel.

Furthermore, CaseLines can help to reduce the number of hearings taken to court, meaning more cases can be heard quicker, easing delays in a saturated system. In fact, the UK Crown Court has seen a 50 per cent reduction in hearings due to earlier access to evidence resulting in defendants entering more early guilty pleas.

At the end of the day, expert witnesses are not lawyers and may not have previous experience of being called upon in a court environment. Therefore, any advancements which simplify courtroom proceedings will only work to help the process run more smoothly. EXPERT WITNESS JOURNAL

107

SUMMER 2019

How long do you think it will be before’ digital evidence’ will be commonplace in most UK courts? The CaseLines system is already mandatory in all criminal courts across England and Wales and is an MoJ approved platform for use in all courtrooms. With greater awareness surrounding the added security, time saving and efficiency benefits that CaseLines provides, hopefully it won’t be long before tribunals, civil and family courts follow suit.

Chartered Surveyors, Valuers and Expert Witness Tim Davies is a Chartered Building Surveyor, and the practice principle and founder of T R Davies Limited, (established in 1998). An established independent practice providing property related services throughout South Wales and Nationwide. Tim has over 30 years experience. Tim is a fully qualified Chartered Building Surveyor, a RICS Accredited Valuer and Expert Witness. Tim has the Cardiff University Bond Solon Certificate in both Civil and Criminal Expert Witness Practice. Tim is a registered property expert with the National Crime Agency, working with police and trading standards, principally dealing with rogue traders. His extensive experience and expertise covers; Expert Advisor/Expert Witness Work – Civil Expert Advisor/Expert Witness Work – Criminal Residential Surveys and Valuations Building Defect Pathology (defect analysis/investigation) Domestic Workmanship Standards Domestic Building Disputes and Quantification Surveyor Professional Negligence Building Related Insurance Claims Party Wall Matters Building Conservation/Period Buildings Structural Surveys Dilapidations Insurance Claims Landlord and Tenant issues

All the answers you need to the many challenges of evidence management Used in courts around the world, and widely endorsed by judges, CaseLines is the advanced cloud-collaboration solution that offers true digitisation. It is far superior to using unsecure, unconnected pdfs and eliminates the ever-rising cost of handling paper.

Contact Details - Mr. Tim Davies Chartered Building Surveyor, Valuer and RICS Accredited Expert Witness BSc (Hons), MRICS, MAE, Cert EW (Civil and Criminal) Windsor House, 107 Talbot Road, Talbot Green CF72 8AE Tel: 01443 229576 Email: info@trdavies.co.uk - Website: www.trdavies.co.uk

London office Belle House, Platform 1, Victoria Station Westminster, London, SW1V 1JT Phone: +44 (0)20 3922 0840 Website: www.caselines.com Offices also in Washington D.C., USA

Truro • Plymouth • Exeter • Bristol Healthcare • Commercia Commercial • Licenced Property • Leisure Architectural Design & Supervision Refurbishment furb hment Management Project Manageme Surveys sĂůƵĂƟ ŽŶ

Party Wall Development >Ğƫ ŶŐƐ ĐƋƵŝƐŝƟ ŽŶƐ Sales ZĂƟ ŶŐ

Landlord & Tenant Planning Management Compulsory Purchase ĚũƵĚŝĐĂƟ ŽŶ

t: 01752 261811 e: Expert@vickeryholman.com

w: www.vickeryholman.com EXPERT WITNESS JOURNAL

108

SUMMER 2019

The New £20 Note and Money Laundering They say history doesn’t repeat itself but I expect it will do so over money laundering when the new polymer £20 note comes into circulation next year. From 2020, a drug dealer, for example, with a stash of old £20 notes that will soon become worthless will be unable to simply hand them over the counter at a bank without arousing suspicion.

A few years ago, the European Central Bank stopped producing 500 euro notes because of concerns that they were facilitating illegal activities. The note had been dubbed the ‘Bin Laden’ because of its affiliation with terrorists. It was said to be favoured by drug lords and tax evaders too.

I expect they will adopt other tactics instead, for example by giving the money in stages to a takeaway owner who ordinarily takes £1,000 a day to the bank. The criminals will ask the owner to deposit £2,000 a day and offer them a cut, with the money then being laundered through fictitious suppliers or being withdrawn in cash and returned to the crooks.

After production was phased out, one boat seller in Spain saw a 40,000 per cent increase in sales, as money launderers sought to get rid of their stockpiles of the notes. When the new £20 note is issued, I foresee a spike in similar suspicious activity, unexplained banking and sudden increases in turnover in certain types of industries which are known hotspots for money laundering, such as car washes, restaurants and takeaways.

In addition, there is bound to be a rise in people buying high-value assets with large sums of cash, such as cars, jewellery and watches – to convert their dirty money into possessions.

These are primarily cash businesses and will therefore become easy targets as people holding large sums of old £20 notes seek to launder them.

Retailers in particular need to be prepared for this type of scenario, while businesses over a certain size must have a nominated money laundering reporting officer, whose duty is to report suspicious activity or transactions.

Banks are required as part of the drive to combat money laundering to ask questions of anyone walking in to deposit over £10,000 in cash, and their systems have algorithms which detect suspicious activity.

I also foresee a rise in the number of unexplained wealth orders being issued by the courts. These were initially aimed at oligarchs and the like, but it would not surprise me if many more unexplained assets bought by people using old £20 notes come under scrutiny.

Customers seeking to pay in such large amounts of cash have to show the money is from a legitimate source. EXPERT WITNESS JOURNAL

109

SUMMER 2019

HMS Temeraire at the Battle of Trafalgar in 1805.

You can bet that suspected criminals who are suddenly seen driving around in an expensive car will be closely watched. Police have the power to seize the assets, and the owner will have to provide evidence of provenance.

Also on the note will be a quote by Turner: ‘Light is therefore colour’. The Bank of England is yet to announce the launch date for the new note, which will resemble the recently-introduced £5 and £10 notes.

I expect a significant number of criminals will be plunged into a state of panic when they are faced with having to quickly rid themselves of their old £20 notes. I expect many will put their heads above the parapet by splashing out on high-value assets, leading to an upturn in the number of unexplained wealth orders

It says the new notes will be more durable, cleaner and more difficult for forgers to copy.

Tim Keeling is a vastlyexperienced forensic accountant with a focus on defendant work in cases involving white collar crime, tax fraud, money laundering and proceeds of crime orders.

An alternative ploy could be that criminals start using younger and older people in greater numbers to launder their cash. Cifas, the not-for-profit membership group which collates data from more than 470 organisations, recently published its Fraudscape report which showed rising levels of fraud in the UK. The number of cases increased by six per cent in 2018, with 323,600 recorded, although most agree the true figure is likely to be higher as many people are often too embarrassed to reveal they have been victims.

He is a director at Inquesta, a forensic accounting practice with offices in Manchester and Leeds. Tim heads Inquesta’s criminal dispute division, which deals with a large range of matters annually, including a considerable amount of criminal defence work for solicitors and barristers across the UK.

The report said society’s youngest and oldest are the most likely to be duped. They are increasingly being lured into acting as ‘money mules’ whereby they unwittingly help fraudsters to launder stolen money by using their legitimate bank accounts.

He has worked on more than 100 criminal defence assignments over the past few years.

Fraudsters are constantly finding new methods to launder their cash. Business owners must keep their wits about them, as an employee or partner may even be secretly or even unwittingly collaborating with criminals. People involved in a business that could be at risk from money laundering should do their due diligence to prevent it occurring as far as possible. At Inquesta we have extensive experience of assisting business owners in this respect, as well as those who have suspicions about money laundering activities. On the flip side, we are geared up to help people suspected or accused of money laundering with precharge advice and assistance over unexplained wealth orders. The current scale of money laundering in the UK is staggering - the Law Commission says it costs the equivalent of £255 a year for every household. That figure could be dwarfed once the new £20 notes enter circulation. The new note British artist JMW Turner will be the face of the new polymer £20 note when it is released next year. His self-portrait will be the figure in the right-hand corner of the note, on the reverse side to the Queen. Behind his image will feature one of his most famous paintings, The Fighting Temeraire, which depicts EXPERT WITNESS JOURNAL

110

SUMMER 2019

Inheritance Tax Solicitors 6 Common Myths by By Anthony Tahourdin, www.herrington-carmichael.com When we speak to people about inheritance tax, they will often tell us about the things that they have done to avoid this tax, or their understanding of the tax. While there is little doubt that some people have a good understanding of the tax, it is frighteningly common to discover that there are serious misconceptions. This was recently reinforced by the outcome of a survey commissioned by HMRC, which showed that many of us make quite substantial gifts during our lifetime but very few had any significant knowledge of the relevant rules and how these gifts might or might not be taxed.

crops or foodstuffs”. Horses do not generally come within this definition and livery very rarely qualifies for any exemption. Occasionally it is possible to claim agricultural or business relief for a stud farm, but occasional horse breeding will not count. A farmhouse is only eligible for relief if it is associated with a working farm, and even then only partial relief may be available. Myth No 5. You run a building company but now that you are retired most of the company’s work and income is derived from a couple of buy to lets. You should be able to get business property relief for the company. Almost certainly not. A building company would usually qualify for business property relief, provided that the majority of income came from the building operations. However, a buy to let business is considered to be an investment business and this does not attract business property relief. If the business comprises partially building and partially investment operations then HMRC will normally look to see what the biggest source of profit is, and if it’s the rental income then business property relief is lost.

In the circumstances, we thought as a public service we would debunk a few of the more common myths that we hear. Myth No 1. You can only give away £3000 a year. Incorrect. Actually, you can give away as much money as you want, but if you give away more than £3000 in any year then unless you have alternative exemptions available, the gifts might be subject to inheritance tax if you were to pass away within seven years. Myth No 2. You have given each of your three children £30,000 and you don’t expect to live seven years, but if you live for five years the gift is tapered and tax reduced. Unfortunately not. Taper relief does not reduce the value of a gift, instead it reduces the tax on a gift. This means that to benefit from taper relief you have to make gifts which give rise to tax, in other words they have to exceed £325,000. For someone who can afford to give away such large sums of money, living five years will indeed reduce the tax payable by 60%.

Myth No 6. You can put your house into a trust and it will protect it from nursing home fees and take it out of your estate for inheritance tax purposes after seven years. Almost certainly not. Trusts of this sort, designed to protect against nursing home fees, are notoriously dangerous. They don’t necessarily provide protection against nursing home fees because they may count as what is called “Deliberate deprivation of Assets” which can be challenged. For the purposes of inheritance tax they are a potential disaster. Firstly, inheritance tax may be payable on the creation of the trust if the value of the house exceeds £325,000. The tax is payable at 20% on the excess over £325,000 and further tax is payable every 10 years at a lower rate. Secondly, assuming you continue to live in the house, this is what is called a “gift with the reservation of benefit”. For the purposes of inheritance tax, such a gift is ineffective therefore inheritance tax would be due on the gift even if you continue to live for seven years, but it is effective for all other purposes. This is the ultimate disaster and can result in extra inheritance tax and capital gains tax being payable.

Myth No 3. You sold your holiday home to your son for £10,000, that way it is not a gift. Incorrect. A sale undervalue is a gift of the amount by which the value of your estate is reduced by a transaction. If the holiday home was worth £200,000, then the sale was a gift of £190,000. Incidentally, this myth also crops up in relation to Capital Gains tax and a sale undervalue does not wipe out that tax either. Myth No 4. Your house is an old farmhouse and you have a couple of fields and an old farmyard. You run a small do it yourself livery and your wife breeds one or two horses a year. This means you should get agricultural property relief on the house and the fields. Probably not. Agricultural property relief is only given for what is called the “intensive production of EXPERT WITNESS JOURNAL

These are a few of the common myths, for further myth busting and reliable advice please contact a 111

SUMMER 2019

member of the private client’s team. Inheritance tax is always on our agenda.

COMPLYPO Y RT

Anthony Tahourdin Partner, Private Client Office – 0118 977 4045 Direct – 01276 854 947 www.herrington-carmichael.com

Expert witness & investigati t ons Financia al Servi v ces Regula ati t on an nd Compliance

Anthony is a Partner in the Private Client Department. He joined the firm in 1999 from a London practice where he headed up the Probate Department. Anthony advises on all areas of Private Client law but his principal interest is in the administration of Trusts and Estates, including both pre and post-death tax planning. He has over 40 years’ experience in dealing with estate administration and he regularly advises on complex estates.

Subscribe to ourJournal we offer discounts for Expert Witness and EWI members call 0161 834. 0017

How Can Complyport Com mplyport Help? &RPSO\SRUW KDV H[SHULHQFH LQ D ZLGH UDQJH RI ÀQDQFLDO VHUYLFHV VHFWRUV SURYLGLQJ LQYHVWLJDWLRQ DQG YHULÀFDWLRQ services,, expert input and skilled person resource including: Expert Witness Reports

:H DOVR DVVLV LVW ÀUPV DQG WKHLU OHJDO DGYLV LVRUV ZLWK

■

Financial Planning

■

Suitability of Advice Investigations

■

Investment Advice

■

Skilled Person Investigations and Reports

■

Pension Tr Transffeer Advice

■

Inve vestigations under Legal Prrofe ofessional Privilege

■

Pension Schemes and Advice

■

FCA Visit and Interview Preparation

■

Compliance and Risk Controls

■

Conduct of Business Investigations

■

Senior Management Controls

■

Financial Crime Investigations

■

Client Money and Assets Investigations

E:: inffo o@complyport.co.uk | T:: 020 7399 4980 60 Cannon Street,, London EC4N 6NP

www.complyport.com

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

EXPERT WITNESS JOURNAL

112

SUMMER 2019

Interim Injunctions - The Dangers of Being Trigger-happy An injunction can be sought from the Court before or after proceedings have been commenced to either stop a company or person from doing something (a prohibitory injunction) or to make a company or person do something (a mandatory injunction). Where the application is urgent, or where giving notice may defeat the purpose of the application, for example assets might be dissipated, the application can be made (and heard) without giving notice of it to the party being injuncted. The recent decision in the case of WH Holding Ltd and West Ham United FC v E20 Stadium LLP illustrates the dangers of rushing to Court for an injunction without laying the proper groundwork or clearly identifying your objectives.

dispute requiring determination by the Court, much less an urgent one, rendering West Ham's approach unnecessary and unjustified. The Court's decision In applying the broad discretion of the Court on the issue of costs (Civil Procedure Rules Part 44), and acknowledging that it was not bound to follow the usual rule of ordering the unsuccessful party to pay the successful party's costs, the Court ordered West Ham to pay E20 its costs of the injunction proceedings and made no order as to the costs of the followon claim. West Ham was also ordered to pay E20's costs of the hearing.

Background West Ham play their home games at the former Olympic Stadium in London, pursuant to the terms of a Concession Agreement, which it entered into with E20 Stadium LLP (the body responsible for transformation and management of the Stadium). Following crowd disturbances and pitch invasions at the 10 March 2018 match between West Ham and Burnley, the Football Association charged West Ham with misconduct in respect of the events at that match (the FA Charge).

Of particular note: The Court reiterated that, in making its decision on costs, it would have regard to all of the circumstances including: (a) the conduct of the parties before as well as during the proceedings; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation; and (c) the manner in which a party pursued or defended its case.

As a result of the division of responsibility for stewarding and other operations at the Stadium, West Ham sought information concerning stewarding arrangements on match day from E20 in connection with the FA Charge, first by inviting E20 to comment on the FA Charge (on Friday, 29 June 2018), which E20 declined to do, and then by demanding that E20 confirm that they would cooperate with West Ham in relation to the FA Charge (on Friday, 6 July 2018).

Commencing its application for an urgent injunction at a time when E20 had not failed in any material respect to comply with West Ham's requests for cooperation was unjustified - West Ham was "trigger-happy" in applying to Court with an unfocussed application for injunctive relief in circumstances where E20 would have co-operated if asked.

Despite accepting that E20 had been co-operating with West Ham until 6 July, on Monday, 9 July 2018, West Ham issued an urgent, without notice application for injunctive relief, which led to two hearings before the Court (on Monday, 9 July 2018 and Tuesday, 10 July 2018), and, ultimately, an Order requiring E20 to provide answers to a list of 27 questions. In the usual way, West Ham was also required to issue a claim in respect of the urgent injunctive relief it had sought and obtained (which it did, and which claim was substantively settled later in 2018).

Practical tips Situations which call for urgent injunctive relief are often, by their nature, time sensitive and high pressure - however, this does not remove the need to properly lay the foundations for an application and to formulate the scope of that application appropriately. Failure to do so may not be fatal to obtaining the injunction (although equally, it might), but it can lead to an adverse costs order even if the injunction is secured.

The issue before the Court was which party should be liable for the legal costs incurred (approximately ÂŁ130,000 was claimed by West Ham, and approximately ÂŁ55,000 was claimed by E20). West Ham argued that it was the successful party, because it obtained the relief sought, and that its actions in moving swiftly to Court were justified in the circumstances. E20's position was that there was never a real EXPERT WITNESS JOURNAL

Be clear in any correspondence with the prospective Defendant about what it is required to do (and, in particular, that an injunction will be applied for if voluntary compliance is not offered) and set realistic deadlines for compliance. It is important to create a solid evidentiary basis for any assertion that the 113

SUMMER 2019

prospective Defendant would not comply with its obligations without intervention from the Court. Patrick Arben, Emma Carr and Sean Adams acted for E20 Stadium LLP. Authors Patrick Arben - Partner Patrick is a partner in the commercial litigation team and specialises in the technology sector. He leads Gowling WLG's IT & Outsourcing Dispute Resolution team. His practice encompasses a variety of specialisms within the technology sector, including software engineering and systems integration projects, IT and BPO outsourcing, software licensing, data security and data protection.

Mr Tim White Chartered Chemist C Sci, C Chem, FRSC A specialist in risks arising from changes in water quality associated with the ownership or occupancy of premises. Key areas of work: Disinfection management, Corrosion investigation, Biofilm control. Materials impact on stored water (including bottled water). Microbiological control of water quality including Legionella & Pseudomonas aeruginosa.

Emma Carr - Director Emma Carr helps clients to avoid disputes and liabilities arising in the first place by providing clear advice on risk management from the outset. If disputes do arise then Emma helps to resolve them quickly and in the most cost-effective and commercial manner, whether that is via litigation or alternative means.

Specialist water treatment provision, for example revers osmosis plant requirements for dialysis support. Waste water issues such as discharge compliance an impacts on water courses. Chemical fate and behaviour relative to water quality issues, for example accidental poisoning and environmental impacts. Personal injury investigation relative to chemical exposure, liquid waste and drinking water quality Contaminated land impacts on water resources. Private water supply management and compliance assessment.

Sean Adams - Senior Associate Sean Adams is a senior associate, based in Birmingham, working in the commercial litigation group. His practice focuses on corporate and commercial disputes, including serious and complex fraud claims, and he works increasingly in the automotive sector. He focuses on helping clients resolve disputes with minimal impact on their ongoing business, whether through litigation, arbitration or Alternative Dispute Resolution (ADR).

Closed system water quality management, for example heating and chiller plant. M&L Ltd PO Box 235, Tavistock, Devon, PL19 1EU Area of work: Nationwide & Global

Tel: 0800 083 4610 or +44 (0)121 288 2386 Mobile: 07740 988 108 Email: tim.white@marquisandlord.com - Web: www.marquisandlord.com

Subscribe to our Journal we offer discounts for Expert Witness and EWI members

Gowling WLG (UK) LLP Two Snowhill, Birmingham, B4 6WR www.gowlingwlg.com

call 0161 834. 0017 Dr Elizabeth Soilleux Consultant Histopathologist MA, MB, BChir, PhD, FRCPath, PGCertMedEd, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certiﬁcate (Civil Law)

Dr Belinda Stuart-Moonlight is one of the UK’s foremost food safety and infectious disease experts, with over 15 years’ expert witness experience. She is tenaciously thorough, her growing reputation built on exacting attention to detail. Her numerous successful outcomes are grounded in scientific knowledge and ongoing experience of industry practice through her consultancy, training and auditing work. She frequently wins plaudits in her capacity as an expert witness in both criminal and civil cases:

Practising consultant haematopathologist and autopsy pathologist in Cambridge. Cambridge University lecturer and fellow/director of studies in medicine, Churchill College, Cambridge.

Why choose Dr Belinda Stuart-Moonlight as your Expert Witness? v Has worked on landmark cases v Cardiff University CUBS certificate in civil and criminal arenas v Every action instigated as EHO successful in Court v PhD in microbiological risk and its legal context v Daily experience of industry practice through consultancy, auditing and training work v In large outbreak cases, she is fundamentally a breach expert (reviewing systems), complimenting causation evidence of medics and microbiologists v Advisor to ABTA and Chartered Institute of Environmental Health (CIEH) for 10+ years

Expertise in: Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome,

Areas of work in the food safety arena include: Microbiological, chemical and physical contamination risk, food fitness, the due diligence defence, HACCP, staff training, travel related gastroenteritis, food poisoning incidents and outbreaks, food safety management and health risk criteria and statutory notices.

myeloproliferative disorders, benign conditions, including

Areas of work in the infectious disease arena include: Norovirus on cruise ships, Norovirus in other hospitality settings e.g. hotels, other infectious intestinal diseases of protozoal, viral and bacterial origin, food poisoning and infections caught during employment such as Leptospirosis

Autopsy (post mortem) pathology.

infections, molecular tests in haematopathology.

Contact:

Areas of work in health and safety include: Suitability of Health and Safety policy, general and specific risk assessment, employer’s and employees’ duties so far as is reasonably practicable, accidents and safe systems of work, safety in kitchens and food factories and health in kitchens and food factories.

Tel: 07798 643879 Email: expwitpathol@gmail.com Website: www.expertwitnesspathologist.co.uk

MOONLIGHT Environmental Web: www.moonlightenvironmental.co.uk. Email: office@me-ltd.biz Tel: +44 (0)1303 210004 Email: office@me-ltd.biz

EXPERT WITNESS JOURNAL

60 Cow Lane, Fulbourn, Cambridge, CB21 5HB

114

SUMMER 2019

Artifical DNA can Control Release of Active Ingredients from Drugs A drug with three active ingredients that are released in sequence at specific times: Thanks to the work of a team at the Technical University of Munich (TUM), what was once a pharmacologist’s dream is now much closer to reality. With a combination of hydrogels and artificial DNA, nanoparticles can be released in sequence under conditions similar to those in the human body.

large that they are unable to move in the hydrogel. However, when a saline solution is added, they separate from the DNA. They can now move in the gel and drift to the surface. “Because the saline solution has approximately the same salinity as the human body, we were able to simulate conditions where the active ingredients would not be released until the medication is applied,” explains Ceren Kimna.

It is becoming much more common for patients to be treated with several different medications. It is often necessary for the patient to take them at fixed intervals – a limitation that makes everyday life difficult and increases the risk of doses being skipped or forgotten.

The mesh-like DNA structure surrounding the iron oxide particles consists of two types of DNA: The first has one end attached to the iron oxide particles. The second type is attached to the loose ends of the first type. These structures are not affected by the saline solution. The iron oxide particles can only be released when the first clusters have dissolved. This event releases not only the silver nanoparticles, but also DNA, which eliminates the “connection DNA” of the second cluster without forming connections itself. As a result, the iron oxide particles can separate. This releases DNA fragments which in turn act as the key to the third DNA-nanoparticle combination.

Oliver Lieleg, Professor of Biomechanics and a member of the Munich School of Bioengineering at TUM, and doctoral candidate Ceren Kimna have now developed a process that could serve as the basis for medications containing several active ingredients that would reliably release them in the body in a pre-defined sequence at specified times. “For example, an ointment applied to a surgical incision could release pain medication first, followed by an anti-inflammatory drug and then a drug to reduce swelling,” explains Oliver Lieleg.

“The consistency of ointments makes them the most obvious solution for a hydrogel-based approach. However, this principle also has the potential to be used in tablets that could release several effective ingredients in the body in a specific order,” explains Prof. Lieleg.

One active ingredient after the other “Ointments or creams releasing their active ingredients with a time delay are not new in themselves,” says Oliver Lieleg. With the drugs currently in use, however, there is no guarantee that two or more active ingredients will not be released into the organism simultaneously. To test the principle behind their idea, Oliver Lieleg and Ceren Kimna used nanometer-sized silver, iron oxide and gold particles embedded in a special gellike substance known as a hydrogel. They then used a spectroscopic method to track the exit of the particles from the gel. The particles selected by the researchers have similar motion characteristics within the gel to the particles used to transport real active ingredients, but are easier and cheaper to make.

Dr Pamela Simpson

The special ingredient controlling the nanoparticles is artificial DNA. In nature, DNA is above all the carrier of genetic information. However, researchers are increasingly exploiting another property: The ability of DNA fragments to be combined with great accuracy, both in terms of the types of bonds and their strength, for example to build machines on a nonometer scale.

She has developed a broad knowledge of the application of microbial control techniques in product preservation and antimicrobial surface protection, process water control, and microbial issues within hot and cold closed systems for both healthcare new-builds and commercial premises. She is also an approved trainer for Legionella awareness courses for water treatment engineers.

C.Biol, M.I.Corr, M.W.M.Soc

Dr Pamela Simpson is a Chartered Fellow of the Society of Biology. She established Whitewater Technologies Limited in 1998, before which she spent over eight years working in the speciality chemicals industry, initially as a technical and European director of the Industrial Biocides Division of a major chemicals manufacturing and processing company.

Her recent work involved expert work for microbially-influenced corrosion in a range of commercial and healthcare buildings of hot and cold closed systems. She was on the Steering Group for the writing of BSRIA BG50/2013: Water treatment for closed heating and cooling systems. She is also acively involved in the CSCA committee and is involved in auditing of CSCA members.

The DNA cascade: compress and then release at the right instant The silver particles were released first. In the initial state, the particles were bound together by DNA fragments designed by Lieleg and Kimna using special software. The resulting particle clusters are so EXPERT WITNESS JOURNAL

Contact: Tel: 01384 441 851 Mobile: 0777 1788 048 Email: info@whitewatertech.co.uk Web: www.whitewatertech.co.uk Area of work Nationwide

115

SUMMER 2019

Lords inquiry says Forensic Science is Broken: Here’s How We Can Start to Fix it by Professor Niamh Nic Daeid, Mr Michael Marra, Dr Christian Cole, Dr Emma Comrie and Dr Heather Doran Many thanks to The Conversation for permission to reproduce this article. www.theconversation.com To find out more information on Leverhulme Research Centre for Forensic Science at the University of Dundee visit www.dundee.ac.uk/leverhulme admitted into courts, highlighting that most were scientifically not fit for purpose.

A free society is dependent on the rule of law which in turn relies on equality of access to justice. The evidence received by this committee points to failings in the use of forensic science in the criminal justice system and these can be attributed to an absence of high-level leadership, a lack of funding and an insufficient level of research and development. House of Lords Select Committee on Science and Technology report, April 2019

In the UK, The House of Commons Select Committee on Science and Technology produced two highly critical reports about the use of forensic science in 2011 and again in 2013. More recently, in 2016, the US President’s Council of Advisors on Science and Technology (PCAST) reiterated these concerns, and was clear that despite repeated warnings on the health of forensic science, little had been done to address them in the intervening years.

These failings, in the words of the Lords Select Committee on Science and Technology, were “embarrassing” and revealed “an abdication of responsibility”. This is the highly critical, even unusual, language contained in the report, Forensic Science and the Criminal Justice System: A Blueprint for Change. But for anyone following the story about the state of the UK’s forensic provision, it comes as no surprise. Such language may even be born of frustration.

In reading the House of Lords report, it is reasonable to ask how public and judicial confidence has survived for as long as it has in the face of repeated authoritative criticism. It is now clear that the risk to the stability of the justice system, should this latest report go as unheeded (as previous calls for reform have), will be significant. If no action is taken, there will be a collapse in both public and judicial confidence, which could manifest in miscarriages of justice.

The science presented in our courts is a vital tool to ensure justice is delivered for victims and society at large. The methods forensic scientists use must be valid, scientifically robust and understandable to the court – including the jury. Where that science fails or is unreliable, cases can be thrown out, collapse or even result in wrongful convictions or acquittals. It is in all of our interests to ensure that science does the job we need it to do.

Dearth of research Historically, the focus of forensic science research and innovation has mostly been associated with capitalising on preexisting technologies in other disciplines, such as analytical chemistry, material science or molecular genetics, where techniques have been developed in detection and analysis.

The current problem is that the science in our courts is not as robust, reliable and properly communicated as it needs to be. There is a growing recognition within government, parliament and the justice institutions, that the criminal justice system is not keeping pace with scientific advances, with particularly urgent needs in the digital domain.

This has given rise to unintended consequences and operational challenges, such as contamination prevention and increased sample complexity. In addition, the interpretation, evaluation and communication of evidence and its weight in the context of individual case circumstances remains at times very challenging, particularly in the absence of sufficient “ground truth” databases. In order to know what is unusual in a crime scene we must first know what is normal. The databases allow researchers to test and validate current and emergent technologies or algorithmic models.

Wider problem The UK is not alone regarding grave concerns about forensic science. In 2009, the US National Academy of Science (NAS) published a report that challenged the integrity and validation of evidence types being EXPERT WITNESS JOURNAL

116

SUMMER 2019

Outside of fictional dramatisations of forensic science, there is a lack of engagement with new technologies. The dearth of research funding and the undercutting race to win police contracts in England and Wales has stifled support of innovation and improvements in practice and science.

To positively disrupt an entire scientific community is no small challenge, but it is already clear from decades of trying, that if we carry on doing the same things with the same community partners, then we cannot possibly be surprised when we simply accumulate more of the same – that is, a failure to introduce robust science to underpin forensic evidence.

The House of Lords report offers a blueprint for change. In particular, urging a new way forward for research in forensic science that embraces an interdisciplinary approach and brings all parts of the community together to discuss, co-create and prioritise research questions and establish a vision in which all parties can be invested.

This, as the House of Lords reports, has not served well the application of the disciplines that make up forensic science or its pursuit of scientific robustness. The current research deficit in which forensic science finds itself, clearly highlights that “the same” is no longer acceptable and nor should it be. We need to embrace transparent practices and openly share advances for the benefit of the courts – the judges, magistrates, advocates, accused, defendants and jurors.

The way forward This approach has already been adopted by the Leverhulme Research Centre for Forensic Science at the University of Dundee where we bring scientists, the judiciary, police and forensic science practitioners together with others from outside of science to create brightspots of activity in an effort to properly address the issues as a community.

If we are to undertake the research that is needed by the forensic science ecosystem to properly serve justice, then we first have to identify the common perspectives of the challenges we face. We need to do this together, taking time to understand each other as an interdisciplinary community. We must be bold and brave, creating a new movement of research inventiveness that draws on all perspectives to energise a truly new culture of openness, trust, data sharing and knowledge creation. Justice and society demand no less.

These strategic conversations have begun to articulate the research needs of the community around DNA, digital evidence, transfer (how things move from one surface to another) and persistence (how long things stay on the surface they have moved to), and background abundance of a wide range of evidence types. Our work is laying the groundwork for the “ground truths” – using controlled experiments generating data from known starting points – that are required in order to then understand the weight of evidence recovered in casework.

EXPERT WITNESS JOURNAL

This article is a reprint from The Conversation please see; www.theconversation.com/lords-inquirysays-forensic-science-is-broken-heres-how-we-canstart-to-fix-it-116456

117

SUMMER 2019

Leica Geosystems Leads the way in Supporting ISO/IEC 17020 Accreditation for Police Crime-scene and Collision Investigations Leica Geosystems, pioneers of the surveying world for almost 200 years, has been invited to assist the National Police Chiefs Council (NPCC) with helping the 43 police forces across England and Wales to achieve compliance with the new ISO/IEC 17020 standard for crime-scene and collision investigation programmes. All such investigators, whether police or private, must conform to the new global standard by the deadline of 1 October 2020. Frances Senior, the NPCC’s specialist capability lead for forensic collision investigation, explained why it was Leica Geosystems she invited to work on the accreditation project. “They’re one of the main suppliers of scanning technology to policing, and they were very kind to accept – which is fortunate because they have lots of technology and people who really understand the process. They can guide the police through some of the difficult areas where we perhaps don’t have the expertise. They’ve been very generous and hugely supportive with the method validation work that we're undertaking.” Leica Geosystems is helping to standardise how surveying equipment should be used, since a significant part of the new validation process will involve how and when surveying equipment is calibrated, operated and maintained. At present, each police force in England and Wales has its own standard operating procedures and quality-management systems. Types and brands of equipment vary widely between forces, or two forces may have the same kit but use it differently. Equally, different individuals within the same force may calibrate and use the same piece of equipment differently. So despite the best of intentions, there is currently significant potential for widely differing results even if two investigators from the same force were to collect, process and store the forensic evidence from the

same crime scene. This can lead to unreliable evidence presented in court and, ultimately, to the wrong outcomes. Dr Anya Hunt is CEO of the UK’s Chartered Society of Forensic Sciences, and has been supporting police forces with their move to compliance with ISO/IEC 17020. “Leica Geosystems very much appear to be ahead of the curve at the moment in their understanding of the need for validation and verification,” she said. “They appear to be taking it incredibly seriously. They’ve already looked at the requirements for validation and verification for using particular types of equipment, in both static and dynamic situations, and for understanding the associated challenges.” She went on to explain that although initially timeconsuming, the accreditation process is vital for public confidence in a fair and accurate criminal justice system as well as for the self-confidence of police experts: “The witness box can be a lonely place. You stand there alone and all you have is the report you’ve written. Compliance with the standards will mean you can have more faith in your own work and feel a little less isolated.” Mike Skicko is Leica Geosystems’ UK public-safety lead for crime scene and collision investigation, and is in charge of the company’s participation in the validation project. “We’ve been working closely with police forces across the UK for some years now. We know investigators well and we understand what sort of challenges they’re up against on a daily basis. Validation is going to be an extra hurdle for them, so we want to help make it as easy as possible for them to achieve compliance and get back to the normal run of things. It’s a privilege to have been invited to assist, and I really do wish forces the very best in making the transition.”

New Forensic Centre to Support Police Investigating Homicide Professor Mark Williams of WMG comments: “It is a real privilege to be able to support West Midlands Police and formalise our relationship through the establishment of a research centre. The opportunity to apply state-of-art technology to support Homicide investigation is very exciting.

The new WMG Forensic Centre for Digital Scanning and 3D printing – a research hub supporting Homicide Investigation has secured investment from West Midlands police to scan injuries and produce 3D print outs for use in expert testimonies. The scans are 1000 times more detailed than hospital scans, and can detect microscopic injuries which could otherwise be missed by conventional medical CT scanners. 3D renderings are then produced of the injuries, and their age can be identified too. The renderings are used in court during trials to provide visual context and support the Pathologist’s testimony.

3D X-Ray scanners allowed us to identify multiple fractures to Teri-Rae’s ribs that had occurred over an extended period of time. The ability to produce highly detailed 3D images of these shocking injuries that could be presented at court helped establish the truth and show what had happened. It’s an honour for us to provide critical evidence in cases like this, and to be able to help the police investigate such an unfortunate tragedy.”

Facilities at WMG, University of Warwick, have been used to provide expert witness testimony in over 100 Homicide cases by 13 different police forces across the UK. Cases include strangulation, stabbing, blunt force trauma and bone fractures.

The technology itself has been used beyond the West Midlands, with police forces throughout the United Kingdom using the technology as part of their investigation.

A recent case study is the manslaughter of 9-weekold baby Teri-Rae. Researchers at WMG used the high resolution X-ray (micro-CT) scanner, to scan the toddler’s ribcage. They were able to detect microscopic injuries which could otherwise have been missed by medical CT scanners. The evidence produced helped reveal a total of eleven injuries of varying ages. 3D renderings of these injuries were shown during trial to support the bone specialist’s expert testimony.

Assistant Director Michelle Painter Head of Forensic Services for West Midlands Police comments: “The strategic partnership with WMG has enabled police forensics to access state of the art technology to progress investigations. In addition to the homicide cases being delivered through the centre, we are pushing research boundaries; combining scientific skill, knowledge and history with innovative technology and presentation techniques.

Above, A 3D printed skull in the micro-CT scanner. Credit to WMG, University of Warwick EXPERT WITNESS JOURNAL

119

SUMMER 2019

Additional PhD studies have commenced on dismemberment tools and we will soon be finalising further research projects including scanner fingerprint and footwear marks and assessing damaged digital devices for protected data sources. The research and partnership possibilities are endless and exciting!” West Midlands Police Detective Chief Superintendent Mark Payne, comments: “I’m delighted West Midlands Police has been able to provide funding to sustain and develop the fantastic collaboration between us and WMG. We’ve been working with the team for several years now and their advanced 3D scanning technology has proved crucial in helping us uncover the truth behind some of our most serious crimes. It has undoubtedly played a key role in convicting killers and helped us better understand the circumstances surrounding other deaths. It’s vital UK policing is innovative in its use of technology and embraces academic developments... this is a pioneering partnership with WMG and one that puts us at the forefront of police forensics.” Opposite, The scanning machine at WMG, University of Warwick. Credit to WMG, University of Warwick. Below, A group shot of academics from WMG at the University of Warwick and West Midlands Police. Credit to WMG, University of Warwick

EXPERT WITNESS JOURNAL

120

SUMMER 2019

‫‪GCC FORENSICS‬‬ ‫‪CONFERENCE & EXHIBITION‬‬ ‫ﻣـﺆﺗـﻤـﺮ وﻣـﻌـﺮض اﻟـﺨـﻠـــﻴــﺞ اﻟـﻌــﺮﺑـــﻲ ﻟـ دﻟــﺔ اﻟـﺠـﻨــﺎﺋـﻴـﺔ‬ ‫‪Ɛƒ ҃ ƐƓ ( ƑƏƐƖ | THE GULF HOTEL BAHRAIN‬‬

Nationwide Expert Witness provider to defence solicitors, family solicitors, barristers and privately funded clients. At Forensic Defence we specialise in providing expert witnesses in a number of disciplines. We provide experts that can assist in criminal and civil cases and we will always endeavor to provide a wide selection of experts to meet our clients needs. We at Forensic Defence understand the importance of meeting deadlines especially in legal cases, we therefore pride ourselves on an efficient and expedient service. Our experts have years of experience in preparing reports for Court purposes and will provide reports within the time and format required. Our expert witnesses include Psychologists, Psychiatrists, Accountants, DNA experts, Cell site experts, Phone/computer experts, Drug analysis, Facial Mapping, Voice recognition, Handwriting samples and more.

Our services include: CCTV Enchancement Computer & Mobile Forensic Examination DNA Reports Psychology Expert Witnesses Mobile Phone Analysis Firearms Drug Testing and Analysis Accident Reconstruction Reports

Cell Site Analysis Drink Drive bacs calculation Forensic Accountancy Reports Psychiatry Expert Witnesses Footwear marks Handwriting Analysis Dangerous Dogs Assessment Toxicology

Our staff have worked in the legal industries for over 10 years, they know exactly what solicitors, barrister and clients are looking for. We aim to obtain a quote within 1 working day of receiving instructions, as we know cases can be under time constraint.

Email: info@forensicdefence.co.uk Website: www.forensicdefence.co.uk Tel: 0121 288 3225 Forensic Defence, 71 Foley Road Birmingham, West Midlands, B8 2JT Available Nationwide