The Expert Witness

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ISSN 2397-2769

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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

LEGAL MIND PSYCHOLOGY AND EXPERTS - RICS

INTEREST RATE MISSELLING - ARBITRATION Vol 1 Issue 18 - Winter 2016/17 UK £5.00 €6.00

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H KOCH AD:Layout 1 1/24/17 2:39 PM Page 1

Legal Mind: Contemporary Issues in Psychological Injury and Law by Hugh Koch

Hugh Koch has written a brilliant guide to reducing the uncertainty, speculation and ambiguity that many personal injury and medical negligence events contain, so that judgments and decisions may be made with the contribution of valid psychological evidence.

Chapters Include: Understanding Psychological Injury, Evidential Certainty, Understanding the Experts, and Understanding Experts.

Pre Order your copy by emailing info@expertwitness.co.uk Also available from Amazon and selected legal bookshops.

Published by Expert Witness Publishing 2016 Registered with the British Libary ISBN - 1-902151-17-8

ÂŁ22.00 â‚Ź23.00 $30.00

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Welcome to the Expert Witness Journal Hello and welcome to the 18th edition of the Expert Witness Journal, and a Happy New Year to all our readers.

Some of the highlights in this issue are experts views on the Understanding, Interviewing Reliability and Expert Uncertainty by Psychologist Hugh Koch. Also Interest Rate Swap Misselling, by Peter Crowley, a topic which has taken up many hours of Court and House of Commons time, is, in essence, simple. A bank misleads its borrowing client into buying what the bank maintains is hedging, but what the bank knows is the opposite. This makes for a very interesting article. Plus we have our regular areas of Psychology, Surveying and Expert Witness matters in general.

As we were preparing to print we received news concerning the reduced use of expert witnesses in Irish court cases. This is being justified by the rising costs of compensation claims and insurance premiums. The proposed rules stop short of seeking specific caps on fees but they would require both sides in a legal dispute to limit the number of expert witnesses they employ and the time they will spend in court by justifying their contribution to the proceedings well before the case is scheduled to begin. Although this may be a way of increasing the use of Single Joint Experts it excludes concurrent evidence.

In our opinion it seems that instructing solicitors are being dissuaded from using experts and expert testimony which ultimately damages the court and process of just law.

It would be very interesting to see the breakdown of costs and how solictors communicate with experts, particularly in Personal Injury cases to see what imbalances, if any, there are.

Chris Connelly Acting 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’ 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 2016.

Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

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News & Events

Proposals to reform criminal defence advocates pay published ing in constructive dialogue with the profession through the Bar Council, Criminal Bar Association, Circuits and Young Bar. We are urging the Bar to respond to this important consultation. It provides a surer foundation for the future.

Plans to introduce a simpler and fairer pay system for defence advocates who work on legal aid funded criminal cases have been unveiled by the Ministry of Justice.

The new, modernised Advocates’ Graduated Fee Scheme (AGFS), will mean fees for barristers and solicitor advocates are no longer based on outdated factors such as the number of pages in a case, but instead on the seriousness and complexity of the work.

AGFS was last subject to reform in 2007 and is in need of modernisation. Detailed measures out for consultation include: ◆ a simpler, more streamlined calculation of fees, including a new detailed categorisation system based on complexity

A consultation on a range of proposals developed in consultation with the legal profession has been published today (5 January 2017).

The measures aim to: ◆ increase certainty and transparency for advocates ◆ ensure fair payment for work done ◆ reduce bureaucracy in the system to cut the burden on the taxpayer and advocates.

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reduced reliance on counting paper, instead focusing on actual in-court advocacy

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a move away from ‘bundling’ of fees into a base fee, improving transparency and certainty for all advocates, in particular junior advocates

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focus on ensuring these reforms are cost-neutral

Justice Minister Sir Oliver Heald QC said: As we take steps to update and modernise our criminal justice system, it is vital that the way we pay criminal defence advocates fairly reflects this new reality.

Our current payment system does not focus enough on the skilled work that barristers and solicitor advocates demonstrate every day in the Crown Court. I want to change that to ensure the system is simpler and fairer.

Andrew Langdon QC, Chairman of the Bar, said: These proposals for a new Advocates’ Graduated Fee Scheme represent a welcome improvement on the current position and go a considerable way towards restoring career progression at the criminal Bar. If implemented, this new scheme will mean the introduction of a fairer way of rewarding advocates for publicly-funded work in the Criminal Justice System, with payment based on the seriousness and complexity of the work. The Ministry of Justice’s proposed new scheme is rational, focusing on actual in-court advocacy, rather than counting paper which the current outdated scheme does.

The consultation, and proposed new scheme, is a positive example of the Ministry of Justice participatEXPERT WITNESS JOURNAL

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Contents

Some of the highlights of this issue

Mediation and Arbitration in the 21st Century

by Juris Resolution

page 12

Insight into the World of Arbitration

by CIARB

page 16

Medical Expert Opinion on Causation in Civil Claims

by Giles Eyre and Dr Linda Monaci

page 18

Understanding Interviewing Reliability and Expert Uncertainty

by Hugh Koch

page 25

Military Claims – Part of Our Duty of Care

by Simon Duffy

page 37

Ten Top Tips for Expert Witnesses in Clinical Negligence Matters

by Heather Beckett

page 40

Clive Stafford Smith at the Bond Solon Annual Expert Witness Conference

by Mark Solon

page 43

Concurrent Evidence

by Alec Samuels

page 46

The Expert and the Ultimate Issue

by Alec Samuels

page 50

What Has Caused the Recent Surge in Requests for the Removal of Permanent Make-Up and Conventional Tattoos?

by Dawn Cragg OBE

page 53

Thinking Outside the Box Enabling Development with Trees

by Mark Chester

page 55

The Future of ADR

by Martin Burns RICS

page 60

Interest Rate Misselling

by Peter Crowley FIA BSc MEWI

page 64

The Rise in Pension Disputes as Pensions Become More Costly and More Complicated

by Chris Parlour

page 70

Forensic Science – A Reality Check

by Joe Millington

page 75

A (Hi-Tech) Letter From America

By Ian Cullimore

page 77

All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert 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.

Printed in Great Britain 2017.

Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

EXPERT WITNESS JOURNAL

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News & Events Bar Chairman: Government must protect UK legal services' strength in Brexit process Responding to TheCityUK report ‘The impact of Brexit on the UK-based legal services sector’ (published on 20 December 2016),Chairman of the Bar, Chantal-Aimée Doerries QC, said: "TheCityUK's paper highlights, rightly, the value to the economy of the English and Welsh courts and of UK legal services. The legal sector's contribution of £25.7bn revenue and £3.3bn of net export revenue must not be put at risk by Brexit. In addition to this significant contribution, UK legal services and our courts underpin the success of UK financial services.

Ensuring that judgments of UK courts continue to be enforceable in EU Member States and beyond post-Brexit will be an important part of our continued success.

about 80 per cent of the 1,100 commercial claims issued, and in about 45 per cent of cases all parties were from outside the UK. This reflects the appeal of our courts, but also that of the barristers and solicitors who practise in them.

"The number of barristers handling work for clients based overseas continues to rise and, in 2014, over 10 per cent of the profession received instructions from overseas clients. In the same period, the Bar's international earnings grew by 9 per cent. Significantly, 30 per cent of the overall increase in the self-employed Bar's earnings in 2014 came from international work.

These figures understate the position - they do not include barristers who are working in-house as general counsel, for example, nor do they capture work on overseas matters for clients based in the UK. There is a clear trend. This growth in international work enhances the UK's reputation as a partner with which to do business. That growth must continue post-Brexit and the Bar Council is working hard to promote the Bar and the English and Welsh justice system to overseas markets."

"Echoing the sentiment of TheCityUK paper, we must not take for granted the high regard in which our courts and judges are held around the world, and the role this plays in our economic success. Our judiciary are seen as independent and incorruptible.

Our courts, in particular the Rolls Building courts, are a popular forum for commercial dispute resolution. In 2013-2014, a foreign party was involved in

Professor Charles Claoué

Mr Jeffrey S Hillman

Consultant Ophthalmic Surgeon

Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth

BA, BChir, MB, MA (Cantab), DO, MD, FRCS (Eng), FRCOphth, FEBO, MAE.

Specialising in; 1) Advanced Cataract Surgery: Surgery for Astigmatism, Multifocal and Accommodating Intra-Ocular Lenses; Small Incision Surgery (Phakoemulsification) and "No Needle No Patch No Stitch" Surgery.

I am a Consultant Ophthalmic Surgeon and was an NHS Consultant at St James's University Hospital and Hon Senior Lecturer in the University of Leeds for 25 years and continue in private practice. My interests are general ophthalmic medicine and surgery with special interests in cataract surgery, intraocular lenses and glaucoma as well as trauma and medical negligence.

2) Excimer Laser and other Refractive Surgery Techniques for Myopia, Hyperopia, Astigmatism and Presbyopia; PRELEX and LASIK.

I have been preparing reports supported by Literature references for over 20 years. Between 1992 and 2015 I have advised in 1330 cases, 70% for Claimants' solicitors, 27% for Defence solicitors and 3% on joint instruction

3) Corneal Disease and Surgery including Corneal Transplants/ Grafts, Anterior Segment Reconstruction.

Reports for medicolegal work are available, including personal injury and medical negligence cases. Professor Claoué is a Bond Solon and Professional Solutions trained medical expert witness in ophthalmology, and a Member of the Academy of Experts.

I have a rapid response facility for cases with tight time constraints.

Contact: 135 Wigton Lane, Leeds, West Yorkshire LS17 8SH Tel: 0113 268 9601 Fax: 0113 237 0884 Email: Jeffeye@btinternet.com Website: www.mrhillman.com

EXPERT WITNESS JOURNAL

Contact: Miss Nadia Bouras Tel: 020 8852 8522 Fax: 020 7515 7861 Email: eyes@dbcg.co.uk Web: www.dbcg.co.uk DBCG Legal Ltd 36 New Atlas Wharf, Arnhem Place, London E14 3SS

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News & Events Costs ordered against party that ignored efforts to discuss expert evidence Defendants who failed to engage in discussions about expert evidence, leading to the claimants having to go back to court, have been ordered to pay the costs of the hearing.

in the nature of a case management hearing.

Chief Master Marsh said: “In my judgment this is a plain case in which an order for costs should be made in favour of the claimants.

Chief Master Marsh said parties must always co-operate in efforts to focus expert evidence as much as possible.

“The failure of the first and third defendants to answer the letters from Mishcon de Reya has not been explained and the characterisation of the claimants’ approach as unduly aggressive bears no relation to reality. The letters to which there was no response were measured and sensible.

The ruling in UPL Europe Ltd & Anor v Agchemaccess Chemicals Ltd & Ors [2016] EWHC 2889 (Ch) followed an application relating to expert evidence in a case about the defendants’ trade in certain plant protection products.

“Furthermore, the claimants were encouraged to the view that expert evidence may not be needed. It was necessary for the issue to be brought to the court for a determination because there was a lack of engagement by the first and third defendants.

The date for exchange of experts’ reports was 14 October 2016 but on 8 September 2016, Mishcon de Reya, acting for the claimants, wrote to the first and third defendants’ solicitors and suggested there was no longer any need for expert evidence.

“It was then necessary for there to be a hearing in view of their apparent attempt to wrong-foot the claimants by producing expert evidence without any consideration of its scope and the methodology for its production.”

They asked for detailed proposals regarding the defendants’ expert evidence, but there was no reply to two letters to that effect. A third letter said that if there was no response by 7 October, an application would be made seeking an order that the defendants could not rely upon expert evidence. Again there was no reply and the application was issued on 10 October.

Master Marsh said: “In almost every case where expert evidence is permitted by exchange of reports, it is desirable for there to be discussion about the scope of the issues under consideration; and in a case where scientific analysis is needed an attempt should be made to agree what is to be analysed and by what method (unless the approach is well established and unlikely to be contentious).

Eventually the defendants’ solicitor served a witness statement saying that his clients were well advanced in the preparation of their expert evidence.

As a result, at the hearing the claimants did not press for the order they threatened; instead, the hearing allowed the court to give further directions on the expert evidence. The question was then who should pay the costs of the hearing.

The claimants asked for their costs on the basis that the application was necessary, they were successful and it was unreasonably contested.

“This is to ensure that, as far as possible, the reports are properly matched or, as it is sometimes put, they are not as if ‘ships passing in the night’. This engagement may incur modest additional cost but is likely overall to save costs. Whether the discussion is best held between the lawyers or between the experts (or both) will depend upon the case and the issues which arise.

The defendants sought either no order for costs or costs in case, saying the claimants had not obtained any of the relief they sought, they took an unduly aggressive stance and that the hearing, in the event, was

“It is clear, however, that in every case the parties must co-operate in the process of producing expert evidence with a view to ensuring, as far as possible that the exercise is properly focused. The result

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News & Events should be that the reports are shorter and deal only with the core issues upon which expert evidence is required.”

Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA

Here it should have been clear to the defendants that “active discussion was required before the experts produced reports and it is unacceptable that they ignored letters and proceeded without any proper engagement”.

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.

They also failed to comply with their duty under CPR 1.3 and he said the court was entitled to take their conduct into account when considering the costs of the application.

Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2015.

Though the primary relief sought was not pursued at the hearing, the master said the secondary relief sought in the alternative was not very different to the order made by the court. Making a “modest adjustment” to take this into account, he ordered the defendants to pay 85% of the claimants’ costs of the application. On summary assessment, this led to an order of nearly £15,000.

Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert.

He covers Manchester, Liverpool, Leeds, Birmingham & London.

Other locations and Domiciliary visits can be arranged.

Contact: Lorna Brindle, 07711 963 200

Tel: 0161 449 7442 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Hospital Manchester, Russell Road, Whalley Range, Manchester M16 8AJ

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News & Events

New crackdown on whiplash claims set to cut insurance premiums Millions of motorists could see their car insurance cut by about £40 a year thanks to plans to crackdown on the epidemic of whiplash claims.

Economic Secretary Simon Kirby said: One whiplash claim is paid out every 60 seconds and it is unacceptable that responsible motorists have to pick up the tab. We are tackling the incentives which have created this compensation culture so that all drivers can save money on their motor insurance policies.

In November, The Ministry of Justice launched a consultation on proposals which will reduce the unacceptably high number of whiplash claims and allow insurers to cut premiums. Insurers have pledged to pass on savings to drivers - worth a total of £1 billion.

The announcement delivers on the government’s pledge to tackle the high number and cost of whiplash claims as made by the former chancellor in his 2015 autumn statement. The latest ABI premium index, which was published on 31 October 2016, reports that the annual premium paid rose in the third quarter by 9% compared to the same period in 2015.

This means that the average premium paid in the third quarter of 2016 is £440.

Whiplash claims are 50% higher than a decade ago, despite the UK having some of the safest roads in Europe and a fall in the number of accidents. This has been fuelled by a predatory claims industry that encourages minor, exaggerated and fraudulent claims, driving up the costs of insurance premiums for ordinary motorists.

The consultation paper outlines plans to scrap the right to compensation or put a cap on the amount people can claim for minor whiplash injuries. Capping compensation would see the average pay-out cut from £1,850 to a maximum amount of £425. Compensation would only be paid out if a medical report was provided as proof of injury.

These new reforms will build on significant steps already taken by this and the previous government to reduce legal fees and to strengthen medical evidence. All claims would need a medical report provided by a MedCo accredited medical expert before any pay out.

Other measures include: Introducing a transparent tariff system of compensation payments for claims with more significant injuries

D & H B Associates Ltd Experts in Road Traffic Offences

Raising the limit for cases in the small claims court for all personal injury claims from £1,000 to £5,000

◆ ◆

Banning offers to settle claims without medical evidence. All claims would need a report from a MedCo accredited medical expert before any pay out.

◆ ◆ ◆

Justice Secretary Elizabeth Truss said: For too long some have exploited a rampant compensation culture and seen whiplash claims an easy payday, driving up costs for millions of law-abiding motorists.

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Stolen Vehicle Examination and Identification Vehicle and Component Examination Locus Reports, Scale Plans and Photographs Statement Taking Tyre Technology - We are affiliated to New Law Associates Ltd (Tyre specialists)

We work with both Civil and criminal cases and are experts in accidents involving all types of vehicles including cars, motorcycles, buses and heavy vehicles.

These reforms will crack down on minor, exaggerated and fraudulent claims. Insurers have promised to put the cash saved back in the pockets of the country’s drivers.

Contact: Douglas Boulton Tel/Fax: 01538 722 544 Mob: 07973 289 162 Web: www.dandhb.com Email: mail@dandhb.com

The government’s commitment to tackle the whiplash epidemic has previously been welcomed by the Association of British Insurers (ABI), with leading insurance firms including Aviva and LV pledging to pass 100% of savings onto motorists.

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Accident Investigation and Reconstruction, both Criminal & Civil Road Traffic Offences from Speeding to Causing Death by Dangerous Driving and Death by Careless Driving Tachograph Analysis

D & H B Associates Ltd. 14 Cavendish Road, Tean, Stoke-on-Trent ST10 4RH New Offices open in Northern England in the Carlisle area please contact for more details

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News & Events

Virtual reality is being used to recreate crime scenes in the courtroom present a one-sided narrative, thereby giving the jury a biased perspective.

Cinematographers, video game designers and journalists are already incorporating virtual reality into their work, but another somewhat surprising group of professionals is also starting to use it: lawyers.

“Imagine recreating a murder scene. I could show you that murder scene from the perspective of the victim, or I could show you that murder scene from the perspective of the killer. And whichever way you see it is going to give you a completely different perspective of that crime,” Schofield tells Codebreaker host Ben Johnson.

The immersive technology offers a way for members of a jury to look inside a crime scene or watch a simulation of an accident with a level of detail that photographs and witness testimonies can’t capture. Using VR, jurors can watch 3D reconstructions of an event or scene. Some versions even allow them to interact with the elements inside, picking up objects or examining a situation from different angles.

That means whichever side of the trial can afford to pay for the VR technology ‘which is priced pretty prohibitively’ might have a better shot at winning. Schofield acknowledges, however, that wealthier parties already have an advantage in court, since they can afford better attorneys, graphics, and expert witnesses.

Because of its potential for the legal field, researchers and legal scholars around the world are investigating VR’s courtroom applications. In December 2014, a team of researchers at the Institute of Forensic Medicine at the University of Zurich in Switzerland published a paper about the use of the Oculus Rift to examine 3D computer reconstructions of events or crimes. And a project at Staffordshire University in England has been experimenting with similar VR applications that could change how crime scenes are documented and shown to jurors.

But a technology that helps to provide more information about a crime or controversial incident could nonetheless have a positive impact on our justice system.

But using virtual reality in the courtroom is not a completely new concept — the first VR-like experience was actually first used in a case nearly 25 years ago. The 1992 lawsuit, Stevenson v. Honda, was about the safety of a motorcycle, with riders suing Honda after an accident.

Honda recreated the scene of the accident from the point of view of the rider, showing the rough terrain beneath the wheels and the speed at which he was travelling. The jury wound up siding with Honda, agreeing that the driver was going too fast for the conditions.

This, of course, presents an obvious problem about using VR in a courtroom: depending on how the video or scene is designed, it can easily EXPERT WITNESS JOURNAL

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Events Advanced Medico-Legal Course (for those who want to update their knowledge): 11th May 2017 – London 6th December 2017 – London

Accord Training Medico-Legal Expert Witness Training Report Writing & the Role of the Expert Course dates: tbc 2017 To register your interest or obtain further information about all forthcoming dates Please call us on 01656 860644 or email us on: admin@accordtraining.co.uk

Court Room Skills Medico-Legal Course (mock court sessions with realistic cross examination): 2nd February 2017 – London 15th September 2017 – London

This medico-legal expert witness training course is designed for doctors undertaking preparation of medicolegal reports in personal injury and clinical negligence litigation cases. Experts will receive an overview of the Civil Procedure Rules (CPR) with an in-depth look at part 35 and the Practice Direction to Part 35 as well as considering the Guidance for the Instruction of Experts in Civil Claims 2014. You will be introduced to the legal framework to put your role as an expert into context and be given background information on how the criminal law differs from the civil law. We will look at the hierarchy of the court structure and consider where an expert fits into that structure. There will be detailed consideration of the issues of breach of duty and causation. You will learn how to prepare excellent quality reports that will withstand scrutiny and be CPR compliant.

Mediation Training Course (5 days or can be split into 3 Modules - please call for details): 9th - 13th January 2017 Manchester 6th - 10th Feb 2017 London 23rd - 24th Feb Aberdeen 07th - 09th Mar Aberdeen 03rd - 07th Apr Birmingham For further information about our courses or to book your place direct, please contact me, Lisa Cheyne on 01423 727721 or email me at lisa@specialistInfo.com or visit www.specialistinfo.com

Bond Solon Civil Law and Procedure Starting 13th Oct 2016 09:30 in London

While this is a stand alone course, delegates may find it useful to combine this course with the Courtroom Skills for the Medical Expert course.

Qualification: Certificate of attendance

Court Room Skills The witness box is a lonely place. Many expert witnesses feel they’re on trial, standing in the dock rather than giving independent testimony to assist the court. Often, experts are unfamiliar with this environment, as few cases go to a full trial.

Starting 21st Feb 2017 09:30 in Manchester Starting 07th Feb 2017 09:30 in London Starting 09th Mar 2017 09:30 in London Starting 27th Apr 2017 09:30 in London

Course Overview: * Introduction to the Legal Framework * An understanding of the legal process * Consideration of the issues relating to breach of duty and causation * Principles of compensation * Requirements of the Civil Procedure Rules (Part 35) * Consideration of the Guidance for the Instruction of Experts in Civil Claims 2014 * Preparing a well-structured CPR compliant report * Your duties as an expert * The Jackson Reforms * Training provided by an experienced Judge

Excellence in Report writing An expert witness’s report is a vital element in litigation.

It must be clear, succinct, independent and well presented.

Many experts develop their own report-writing style or adopt other people’s. But they’ve rarely received constructive feedback from lawyers on what’s actually required from their written evidence.

Starting 06th Feb 2017 09:30 in London Starting 20th Feb 2017 09:30 in Manchester Starting 08th Mar 2017 09:30 in London Starting 26th Apr 2017 09:30 in London

Specialist Info Standard (Personal Injury) Medico-Legal Course (a general overview for anyone starting a medico-legal practice): 31st January 2017 – London Clinical Negligence Medico-Legal Course (we recommend moving onto this course only after some basic training has been completed): 1st February 2017 – London

EXPERT WITNESS JOURNAL

Cross Examination Day The Cross-Examination Day is a follow-on course to the Courtroom Skills Training.

Starting 22nd Feb 2017 09:30 in Manchester Starting 08th Feb 2017 09:30 in London

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Events Starting 10th Mar 2017 09:30 in London Starting 28th Apr 2017 09:30 in London

The Academy of Experts Foundation Course for Expert Witnesses January 17th to 18th Venue: The Academy The Expert Witness Foundation Course course is an intensive study through both the theory and more practical aspects of being an Expert Witness.

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.

Starting 18th May 2017 09:30 in London

Into Court 2nd Feb 2017 and 30th Mar 2017 Venue: The Academy of Experts As an Expert you will be judged on the quality of your evidence - not just the quality of your opinion.

Family Law and Procedure This course provides family court expert witnesses with a comprehensive understanding of their requirements under Part 25 of the Family Procedure Rules and practice direction 25A. Starting 15th Jun 2017 09:30 in London See more at: www.bondsolon.com

Report Writing Masterclass 6th Mar 2017 Venue: The Academy of Experts An advanced course open only to experienced Expert Witnesses. Limited numbers only for this advanced training course.

RICS Expert witness training Training Manchester and Edinburgh, 13th Mar 2017 This high level and practical course will equip you with the detailed knowledge and skills you need to work confidently as an expert witness and to apply for listing on the RICS International Register of Accredited Expert Witnesses.

Expert Determination Training 9th - 10th March 2017 Venue: The Academy of Experts This is a technical course which will deal with all you need to know to get started and run an Expert Determination. It is a pre-requisit for those wishing to become a TAE accredited Expert Determiner.

Built Environment professionals are often called upon to act as expert witnesses in court or arbitration proceedings.

They may need to give evidence either as a written report or by way of oral evidence – frequently subject to aggressive cross examination.

Foundation Course for Expert Witnesses 14th - 15th March 2017 Venue: The Academy of Experts The Expert Witness Foundation Course course is an intensive study through both the theory and more practical aspects of being an Expert Witness. www.academyofexperts.org/training-courses

The standard of expert evidence varies considerably, and even highly qualified professionals will benefit from developing a full understanding of the pressures, expectations and legal and ethical duties of an expert witness to the instructing party, the other side and most importantly, to the courts.

Professional Solutions Our expert witness training workshops are held in Central London 3 to 4 times per year. We limit the size of the workshops to allow plenty of time for interaction and discussion during the presentations and breaks. Many of our presenters have worked with us for over 15 years and have developed and refined our workshops as the role of experts has evolved and changed.

Expert witness training Training London, 11th-19th May 2017 Professionals within the built environment are often called upon to act as expert witnesses in court and legal proceedings. The standard of expert evidence varies considerably and even highly-qualified professionals can benefit from developing a full understanding of the pressures, expectations and legal and ethical duties of an expert witness to the instructing party, the other side and most importantly, to the courts..

Writing Expert Reports – Introduction 18th Jan 2017 - 09.30-16.30 Venue: London Lynden Alexander

The standard of expert evidence varies considerably, and even highly qualified professionals will benefit from developing a full understanding of the pressures, expectations and legal and ethical duties of an expert witness to the instructing party, the other side and most importantly, to the courts. www.rics.org/uk/training-events/trainingcourses/expert-witness-training-/london/ EXPERT WITNESS JOURNAL

Writing Expert Reports - Advanced 19th Jan 2017 - 09.30-16.30 Venue: London Giles Eyre & Lynden Alexander

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Successful Communication at Experts’ Meetings & Preparing to Give Oral Evidence in Court 20th Jan 2017 09.30-16.30 Venue: London Giles Eyre & Lynden Alexander

Northumbria Centre for Evidence and Criminal Justice Studies.

Expert Witness (Open to Expressions of Interest Spring 2017) The School of Law is offering three training courses: Expert Witness CPD (Family Proceedings), Expert Witness CPD (Civil Proceedings) and Expert Witness CPD (Criminal Proceedings). These courses are designed for people who are, or wish to become, expert witnesses in civil, criminal or family court proceedings. The training will not cover any substantive expert specialisations because these are inevitably so diverse. The aim is to help expert witnesses understand their duties to the court as expert witness; to become familiar with the requirements of criminal, civil or family court procedure rules; provide advice on report writing; develop oral evidence skills; and to understand the causes of expert bias.

Giving Evidence in Public Inquiries 09th & 10th Feb 2017 - 09.30-16.30 Venue: London Simon Randle & Lynden Alexander Writing Evidence in Planning Appeals 21st April 2017 - 09.30-16.30 Venue: London Lynden Alexander www.prosols.uk.com/expert-witness For more information, please call Lynden Alexander on 020 7421 7476 or email him at lynden@prosols.uk.com

To express your interest please contact us using the details below, please include details of the (a) Stream; (b) Course length; and (c) Location that you are interested in : Contact: Dr Michael Stockdale Email: m.w.stockdale@northumbria.ac.uk

The EWI Report Writing 24th Feb 2017 This seminar deals with the fundamental skills needed to write high-quality expert reports. The framework of court rules and procedure that form the context for expert reports will be explained, as will the fundamental evidential writing skills necessary to produce reports that fulfil all the requirements of the litigation process.

Finally, extracts from expert reports will be discussed to highlight the differences between well and poorly drafted expert opinion in reports.

Open Forum Events Mental Health: Forward Thinking – The Implementation Plan A major transformation programme for mental health is underway, an unprecedented and decisive step towards closing the treatment gap for mental health. The roadmap for change ‘Implementing the Five Year Forward View’ sets out how services will help reach a million more people a year by 2020/21. So how do we make the plans a reality?

How to book: Contact The Expert Witness Institute, 159-161 Temple Chambers, 3-7 Temple Avenue, London EC4Y ODA Email events@ewi.org.uk or call on 020 7936 2213 Cost: EWI Member Rate: £260 Non-member Rate: £290 including lunch

Venue: The Bridgewater Hall Lower Mosley Street, Manchester, M2 3WS Date: March 16th - Time: 8:30 am - 4:45 pm Phone: (0161) 376 9007 Email: tickets@openforumevents.co.uk Website: www.openforumevents.co.uk

the hampden consultancy Building services (mechanical & electrical) consulting engineers Expert witnesses / Expert advisers / Expert assessors 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 01494868868 or 07768497005 or visit our website on www.thehampdenconsultancy.com for more details.

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Mediation and Arbitration in the 21st Century

by Juris Resolutions Sometimes, the resolution of a dispute may require the payment of money from one party to another, but, on other occasions, more creative, non-monetary solutions, can effect a settlement that benefits all parties to the dispute. Mediators have more flexibility than judges to achieve creative dispute solutions but, if a settlement is reached, the settlement agreement can be enforced through the courts, if necessary.

What is Mediation?

Mediation is a process whereby an independent, neutral person (the mediator) helps disputing parties to find a mutually acceptable solution to their dispute.

The mediator does not operate like a judge and does not impose solutions on the parties. On the contrary, the mediator will discuss the issues with the parties and help them bring about a solution to their dispute.

Thus, mediation gives the parties a stronger voice than the courts in resolving their dispute.

What is Arbitration?

Arbitration is a process whereby a neutral person (the arbitrator) decides a dispute between the parties in accordance with applicable law.

Any type of dispute can be mediated and mediation is often more effective than litigation. First, it is quicker and less expensive. Instead of taking years for a dispute to wind its way to trial, mediation can end cases quickly and effectively. This saves the parties considerable time and substantial expense.

Second, because the mediation process is informal, confidential and private, it avoids the emotional distress of having parties go to court and parade their dispute before strangers. In this way it can also save or heal relationships that court based litigation destroys.

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The arbitrator may be appointed in different ways.

Sometimes a contract provides for the appointment of an arbitrator; other times, the parties may agree to appoint their own arbitrator. The arbitrator is a skilled practitioner who will decide the dispute and provide a reasoned decision which will be final and binding on the parties and can be enforced through the courts.

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Traditionally, mediators and arbitrators have, either by themselves or with the assistance of the parties and their lawyers, made all of the arrangements essential to the completion of the proceedings. This means, however, that part of their time and energy is spent on administrative details rather than focusing on the dispute to be resolved.

The rules of the arbitration may be set in advance, agreed by the parties or set by the arbitrator. The parties generally bear the costs of the arbitrator’s services equally but the arbitrator has the power to order that the costs of the arbitration be allocated in a fashion that is just and consistent with the final award which is typically issued within 30 days of the hearing.

Juris, on the other hand, frees the mediator or arbitrator and the parties from the burdens of administration. Thus, all of the administrative arrangements essential to a successful mediation or arbitration are handled by Juris professional case managers. This administration is cost effective and not only avoids delays and difficulties in organising the proceedings but also gives the parties a case manager with whom to discuss concerns about the dispute without the risk of harming the neutrality of the chosen mediator or arbitrator.

There are many advantages to arbitration over litigation. Arbitrations are quicker, cheaper and more focused than a court trial. The arbitrator will manage the dispute at a pre-hearing conference and streamline the issues, witnesses and evidence to insure an expeditious and efficient hearing. Delays are avoided because, unlike the courts, there are no other trials or competing judicial proceedings to delay the hearing.

Because arbitration proceedings are less formal than the courts, parties and witnesses are often more at ease.

There are many practical advantages in using Juris administrative services. First, it is possible to make all the arrangements online through the Juris website at www.jurisresolutions.com. There is 24/7 online access plus telephone support during business hours which makes the entire process efficient and user-friendly.

The Advantages of Using Juris Resolutions for Mediation and Arbitration Juris Resolutions offers a panel of distinguished former judges and experienced lawyers who are trained and qualified as mediators and arbitrators.

These experienced, independent professionals are committed to providing fair and impartial services to everyone who uses them. Their profiles and fees are accessible online at www.jurisrsolutions.com.

In addition, Juris provides a secure, password accessed and encrypted, online portal that allows each side to file and serve its written materials and upload its evidence for presentation at the hearing. This saves the time and expense of preparing old-fashioned

We resolve disputes efficiently and effectively from first contact to final resolution. We provide a panel of fully qualified and skilled mediators and arbitrators who will manage and resolve your dispute in a private and professional manner at a convenient location. Our personal and online services make the entire process simple, efficient and client friendly.

Our mediation and arbitration services offer parties the opportunity to resolve disputes relating to employment, contract, commercial, professional liability, insurance, family and matrimonial matters.

The Mount 2 Woodstock Link Belfast BT6 8DD Tel: 02890 730168 Email: casemanager@jurisresolutions.com Web: www.jurisresolutions.com

Mediation Save the time, expense and stress of going through the courts.

Resolve your dispute privately and creatively.

Arbitration Our outstanding panellists will decide your dispute justly, efficiently and privately.

Our encrypted, secure, online portal allows you to upload, deliver and display your entire case without the wasted time, expense and inconvenience of paper files.

Other Services Free mediation suitability evaluations.

Early neutral evaluation of your case by our experts.

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paper bundles and allows hearings to proceed efficiently with parties having immediate electronic access to all documents.

6. Don’t wing it. Come prepared to mediation. There are many aspects to being prepared. Here are a few: • Submit a mediation brief explaining your case to both the mediator and the other side. You will need to persuade both to resolve your dispute favourably.

Juris mediation facilities have been carefully chosen and are convenient, professional and comfortable.

Conference rooms are equipped with WiFi for laptops and tablets and presentation equipment is available on request. Refreshments and food are provided for all those attending the proceedings.

• All parties must be present. Without them, the dispute will not resolve. Corporate parties must have decision makers present and any representative should have authority to make settlement decisions.

The representative must also have immediate access to anyone who needs to provide authority at unforeseen levels.

Juris case managers are top level professionals ready to assist the parties with information on the many questions that arise in preparing for mediation or arbitration.

• If there is information critical to evaluation and settlement, it should be known or at least demonstrable to all sides. If someone has “a smoking gun”, it is wise to remember that late in the day surprises are rarely as effective as the holder believes. Early disclosure of important evidence is usually helpful to persuading people to change positions.

All of these services and facilities come as part of a complete package that is efficient and cost effective.

All fees and costs are displayed on the website so that parties can be certain of the cost of their resolution proceedings from the outset.

Tips for Successful 21st Century Resolutions There is no doubt that for reasons of efficiency, economy and practicality, mediation and arbitration will continue to be used increasingly in the 21st century. The Juris website offers valuable information about preparing for successful mediation and arbitration.

• Parties must have information about costs to date and forecasts of future costs in the case. Without such information, the economic risks of failing to resolve a dispute cannot be fully evaluated.

• If uninvolved but important third parties are essential to a final resolution, they should be consulted in advance of the mediation and be available in some fashion to contribute as needed.

For those with little or no experience of mediation, we provide the following advice to enhance the prospects for success.

For those with little or no experience of arbitration, we provide the following advice to enhance the prospects of success.

1. The timing of mediation is critical to its success.

Unless all opposing sides believe they are ready to discuss a resolution to the dispute, there is no point in forcing parties to mediate.

1. The most important decision is choosing the arbitrator. He or she will not only decide the case but will also manage its progress towards the hearing.

Select the arbitrator with whom you feel comfortable.

2. Good faith is essential. No matter how far apart in their views of the dispute, unless parties approach the mediation willing to listen to the views of the mediator and each other, it is unlikely to be successful. At the beginning, attitude is as important as assessment.

2. The preliminary hearing is very important as it will confirm the choice of law and case management rules, establish the key issues and set an outline of the preparation needed to bring the dispute to a hearing. Be prepared to contribute meaningfully to this proceeding.

3. Reasonableness is the key to negotiations. No one expects a party to begin negotiations with their “bottom line”, but settlement proposals should be reasonable to encourage concessions by all sides.

3. Work cooperatively with opposing parties to maximise the benefits of arbitration such as streamlining your discovery needs, eliminating unnecessary issues and proofs and utilising an online server, such as Juris provides, to upload and access documents for your hearing.

4. Hostility never works. Sometimes there is a history of animosity between the parties or their legal representatives. This must be parked out of sight and mind because it stifles the spirit of compromise essential to reaching a deal. If you won’t let go, you won’t settle.

5. Choose the right mediator. The chosen mediator should be someone who is considered trustworthy and suited to the dispute by all parties. Experience, style and reputation are all relevant factors to consider. Sometimes using a mediator who knows the area in dispute can be helpful but that is not always essential, Sometimes, a ‘fresh pair of eyes’ can see things in a different, but helpful, perspective.

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We look forward to assisting you in dispute resolution.

Martin Blake and Kathy Sinclair Directors of Juris Resolutions Contact us through Juris Resolutions at www.jurisresolutions.com

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ADR Mediation

Company Profile Juris Resolutions, a full service mediation and arbitration company, commenced business in October 2016 in Belfast, Northern Ireland. Its directors and managers are Kathy Sinclair and Martin Blake. As is evidenced by its website www.jurisresolutions.com, the company has a clear vision of providing a 21st century level of alternative dispute resolution (ADR) services.

Lord Justice Briggs who has an impressive legal career, was appointed Deputy Head of Civil Justice on the 1st January 2016. Briggs predicts that mediation will become the norm if plans for a new online court comes into existence. The online court would deal with monetary claims up to twenty-five thousand pounds.

Kathy, a solicitor with over 30 years’ litigation experience and an ACAS accredited mediator since 2010, was one of the first in Ireland to write and deliver a university course in Alternative Dispute Resolution at the University of Ulster. She brings a seasoned legal, practical and academic interest to the company’s approach to providing ADR services.

In September 2016, Briggs told the Chartered Institute of Arbitrators’ mediation symposium his recommendation for a court with a three stage process, will for civil dispute resolution hopefully bring adr mediation, alternative dispute resolution into the forefront.

Martin, an attorney and former barrister, has over 30 years’ experience of ADR in California where he acted as both a private mediator and settlement judge. Martin has been listed for the last 10 years in the authoritative publication ‘Best Lawyers in America’ and is a former chair of the International Practice Section of the American Association of Justice.

It is contended that mediation would not become mandatory, the hope being that it would align, bring the alternative dispute resolution, adr mediation community closer together with the court service, with the aim of civil dispute resolution through a suitable and primary route.

It was said that mediators and the courts worked alongside one another providing mediations in many of the county courts on a vast array of civil disputes.

Indeed the mediation service worked well till the decision to close the National Mediation Helpline in 2011.

The national and international legal experience of both directors supports their aim to make Juris Resolutions the leading private provider of mediation and arbitration services in the UK. States Kathy: “It is our intention to expand our operations throughout Ireland as quickly as possible. Once established, we look forward to helping clients throughout the UK.”

Dr David Roger Thomas Consultant Forensic Psychiatrist MB BCh FRCPsych A Consultant Psychiatrist since 1988 and Consultant Forensic Psychiatrist at the Caswell Clinic, Medium Secure Unit, Bro Morgannwg NHS Trust since 2000 (also Medical lead since 2007), involved in inpatient and outpatient work, tertiary assessments, the development of an Addiction Treatment Programme and working as an Assessor and Supervisor for the General Medical Council for sick doctors and continuing my role on the Mental Health Review Tribunal. I have also functioned as a tutor for psychiatric trainees and examined for the Royal College of Psychiatrists.

I have published extensively in peer review journals and been engaged in a considerable amount of medico-legal work over the last twenty years in both the civil and forensic fields, acting as an independent psychiatric assessor for both Claimant and Defendant. I have experience in attending court in all manner of cases, including Personal Injury, employment disputes and family law cases.

South Wales Forensic Psychiatric Service Caswell Clinic, Glanrhyd, Bridgend, South Wales, CF31 4LN Tel: 01656 662 179 Email: r.thomas@wales.nhs.uk

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Insight into the World of Arbitration The Chartered Institute of Arbitrators (CIArb) is a leading professional membership organisation representing the interests of alternative dispute resolution practitioners worldwide. It has more than 14,000 members across the globe and 37 branches internationally.

Founded in 1915, CIArb was granted a Royal Charter in 1979. Today it is the leading membership body overseeing the global promotion, facilitation and development of all forms of private dispute resolution.

select a neutral forum for the settlement of their dispute. It also provides for both international arbitration agreements and arbitral awards to be enforced transnationally pursuant to the New York Convention 1958.

CIArb provides:

Whether arbitration is the best option for the ‘average commercial dispute’ will depend on the nature of the case and the needs of the parties. Commercial disputes can be submitted to both arbitration and mediation. Both procedures involve the presence of neutral and impartial third parties and both provide a more flexible framework than litigation. International commercial arbitration remains a popular option when dealing with high value and complicated international commercial disputes.

• A dispute appointment service comprised of highly trained and experienced ADR practitioners that deal with both commercial and civil disputes • Globally recognised education and training for arbitrators, mediators and adjudicators • Practice Guidelines, Protocols and Rules to generate a better standard of ADR practice worldwide

Your Dispute Appointment Service (DAS) offers a range of ADR methods. What makes it the ‘go- to’ service out there?

DAS is a pivotal part of CIArb, providing quick, confidential and cost effective methods of settlement or resolution of domestic and international disputes.

• Access to respected books, journals, papers and reports produced by the Institute • An international centre for practitioners, policy makers, academics and those in business concerned with the cost-effective and early settlement of disputes.

We offer a complete range of ADR methods including arbitration, adjudication, mediation and independent expert determination and can deal with many types of disputes in diverse areas. DAS primarily acts as an appointing body through its Presidential Appointments Service, but it can also recommend suitable dispute resolvers for party agreement.In a ddition, DAS offers institutional rules and bespoke ADR schemes for specialist areas or low value disputes.

We speak with Olivia Staines, Head of Marketing and Communications at CIArb, to discuss the benefits of arbitration, CIArb’s Dispute Appointment Service (DAS) and the Institute’s Business Arbitration Scheme.

What are the benefits of arbitration as an alternative to litigation? Is arbitration the way forward for the average commercial dispute?

In the current climate of rising court fees and overloaded court systems, arbitration has been praised for its procedural flexibility, limited grounds of appeal, speed and cost-efficiency. It also offers confidentiality, a key advantage for businesses who want to preserve trade secrets and avoid the public eye.

The Presidential Appointments Service is made up of highly trained and experienced ADR practitioners (Presidential Panels) selected from our membership that can deal with both commercial and civil disputes.

Members of the Presidential Panels of Chartered Arbitrators, accredited mediatiors and accredited construction adjudicators must have demonstrated to the Institute that they have a high level of knowledge, skill and experience in their discipline, that they have undertaken an appropriate programme of

With the surge in foreign direct investment and global trade, international arbitration is the most widely used dispute resolution method for conflicts involving big businesses, states and investors. International arbitration offers parties the opportunity to EXPERT WITNESS JOURNAL

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continuous training and personal professional development, and that they are committed to high ethical and professional standards.

and timely resolution of disputes of low to medium monetary value (£5,000 - £100,000), by arbitration before a sole arbitrator.

DAS is particularly popular with users as it charges for its services on a fixed cost basis (as opposed to ad valorem or time based charges), giving the parties certainty about the administrative costs from the outset. DAS will appeal to those parties who want ad hoc proceedings, with the benefit of a reputable and neutral appointing body to select their dispute resolver.

Crucially, BAS is a fixed fee scheme administered by DAS, giving the parties’ certainty as to costs. A fixed fee of £1,250 + VAT is payable by each party on commencement of the arbitration, to cover CIArb’s administrative costs and the arbitrator’s fees. BAS also offers a final and legally binding award in less than 90 days from the appointment of the arbitrator.

The scheme is simple enough to allow most businesses to present their own case without legal representation, and the costs recoverable have been limited to protect parties against liability for their opponents’ high legal bills.

How do you create and maintain a better standard of alternative dispute resolution (ADR) practice worldwide?

CIArb’s Practice and Standards Committee (PSC) is responsible for creating a better standard of alternative dispute resolution practice, on a worldwide basis.

To cater to the needs of parties, formal procedural steps are kept to a minimum (exchange of statements of case, documents and evidence), which shortens the timetable and reduces the expense of preparing the case. The process is private and confidential and parties can rest assured that the award is enforceable in the same way as a court judgement.

The Committee develops and publishes arbitration, mediation and construction adjudication guidelines of good practice and the Institute’s principal rules and procedures for the practice and delivery of private dispute resolution. The PSC also develops our Code of Ethics.

Olivia Staines Head of Marketing and Communications The Chartered Institute of Arbitrators (CIArb) Email: ostaines@ciarb.org Telephone: +44 (0)20 7421 7483 Web: www.ciarb.org

Can you tell us more about the Business Arbitration Scheme (BAS) and its benefits for users?

The Business Arbitration Scheme (BAS) was developed by CIArb to provide simple, cost-effective,

Dr David Nathaniel-James Consultant Clinical Neuropsychologist HCPC Registered Clinical Psychologist, Chartered Scientist BA, MSc, PhD, DClinPsy, CPsychol, CSci, AFBPsS

Specialising in the assessment and treatment of neuropsychological and emotional changes resulting from acquired brain/head injury, neurological disease, learning disability and psychiatric illness.

Dr David Nathaniel-James holds Doctorates in both Neuropsychology and Clinical Psychology. He has extensive experience in neuropsychological assessment and treatment.

On average he prepares 65 medico-legal reports a year which includes people who have suffered a brain injury arising from a road traffic accident, medical negligence, or an industrial accident.

Additionally he has provided reports for employment tribunals and in high profile cases.

Rare specialist expertise in: Vocational Assessment and intervention.

Consulting rooms in Harley St. London and Rodney Street Liverpool.

Contact: 10 Harley Street, London W1G 9PF Tel: 020 7467 8476 Fax: 020 3609 6788 Mob: 07930 608 158 Email: dnjdrdr@gmail.com

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Medical Expert Opinion on Causation in Civil Claims Clinical Opinions Must Apply Legal Tests and Legal Principles to be of any Assistance to the Court

by Giles Eyre and Dr Linda Monaci lawyers and the court in determining the value of a claim and a fair settlement.

Introduction Cases involving traumatic brain injury (TBI) are often very difficult to assess for litigation purposes, even more so if there is a pre-existing condition which may contribute to cognitive deficits whether at the time of assessment or in the future. To do so effectively requires the medical expert as well as the lawyer to have a good understanding of the applicable legal tests and principles.

This article seeks to illustrate the importance of being aware of the legal principles and legal tests in a case arising out of a claim for damages for personal injury resulting from a TBI on a man with pre-existing multiple sclerosis (MS). It also shows the importance of lawyers including in letters of instruction proper guidance in relation to those relevant principles and legal tests.

The Civil Procedure Rules 1998 (CPR) clarify requirements in relation to form and content of expert witness reports in civil claims; the overriding objective of the CPR is to deal with cases ‘justly’ and in line with the principle of proportionality. The CPR do not describe the legal principles and the legal tests that are the key issues in establishing compensation as knowledge of those on the part of the experts is simply assumed. It remains of fundamental importance that experts are fully aware of these principles and are able to apply them when writing their reports so that the experts’ opinions are meaningful to the EXPERT WITNESS JOURNAL

Case Study: Multiple Sclerosis and Traumatic Brain Injury A man suffering with MS was involved in a road traffic accident when 45 years old in which he sustained orthopaedic injuries, from which he has made a good recovery, as well as a head injury with loss of consciousness. In order to illustrate the key issues in his article we will assume that he sustained a moderate brain injury (i.e. sufficiently severe to cause a degree of permanent cognitive problems).

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At the time of the accident his MS had been diagnosed as Relapsing-Remitting; he had been diagnosed at age 37. This is relevant because although cognitive deficits can be detected early in the disease, they are typically present as the diseases progresses and are particularly severe in patients with chronic progressive or secondary progressive MS.

Multiple Sclerosis MS is an inflammatory and neurodegenerative disease involving the central nervous system, typically characterised by periodic inflammations that result in demyelination and eventually axonal loss and grey matter atrophyi. Cognitive problems are common in patients with MS (43 to 70% of casesii), typically domain-specific cognitive deficits are present rather than an overall cognitive decline. Cognitive dysfunction typically involves attention, speed of processing, working memory, verbal and visuospatial memory and executive skillsiii .

At 18 months after the accident he could not be discharged home as he could no longer live independently. He was placed in a care home that specialised in adults with severe cognitive problems, although he could be re-housed in the community if he had sufficient care arrangements in place. After 8 weeks of inpatient neurorehabilitation he received 12 weeks of weekly community rehabilitation.

Traumatic Brain Injury Traumatic Brain Injury (TBI) involves sudden acceleration / deceleration and can lead to both focal and diffused lesions, due to the effect of brain rotation.

Areas particularly vulnerable to damage are the frontal and temporal lobes, which are involved in executive functioning and memory, as the soft brain accelerates inside the skull and on impact hits the body projections at the base of the skull. Brain rotation can also lead to axonal shearing, where axons can be severely damaged, which causes degeneration of the surrounding brain, commonly named ‘diffuse axonal injury’ iv. In TBI the brain is affected not only by primary brain injury, but also secondary injury, which can occur as a result of brain swelling, raised intracranial pressure and intracranial bleeding. A history of brain injury is a predictor of poor outcome.

His safety awareness was poor and he struggled with impulse control and maintaining social relationships.

He was broadly independent with his toileting needs but required assistance with most activities of daily living such as washing and dressing; he needed assistance to go out of the home due to poor safety awareness and he was unable to manage even small amounts of money. His needs for support were significant, but he could still make some improvements and become more independent in his everyday life. and become more independent in his everyday life.

The legal principles involved in this case Based on the clinical issues involved in this case, it is relevant to consider the following legal principles or legal testsx.

Attention, memory and executive function problems are common after TBI, with executive dysfunction including impaired motivation, initiation, inhibition, emotional regulation, planning and problemsolvingvi. Mood disturbances are common after acquired brain injuryvii, but mood can also be altered through the effect of the organic injury or awareness of disability caused by itviii. Insight is often compromised; although others may notice changes in behaviour in individuals with a brain injury, they may fail to perceive any differences or view them as insignificantix.

Causation 1). The ‘Egg-Shell Skull’ principle means that someone who causes injury to another person must take that other person as they are. If, therefore, the injured person has a particular vulnerability, which means that the impact of the accident or injury on them is more severe than would normally be expected, the person who causes the injury is responsible for all of the consequences. The Claimants’ pre-existing condition is likely to have made him more vulnerable to the effects of an injury. While a moderate TBI is likely to cause permanent cognitive problems, arguably this is even more likely in an individual whose cognitive reserve had been diminished by the MS. Damages will not be reduced because of this increased vulnerability – the Defendant is liable for all of the consequences of the injury as they arise in this individual.

The Claimant At the time of the accident the Claimant lived a fairly independent life. He was single with no children and lived alone in a privately rented flat (2nd floor with a lift). He used a wheelchair to mobilise outdoors but was able to walk indoors for brief distances. He was able to maintain part-time employment in a clerical role with the local authority, he lived alone and he managed self-care. He had support every week with house cleaning and some house chores. He did his shopping on line and had a limited social life whereby he met a stable group of friends at the local pub or cinema every week. He had no forensic history, no previous history of mood disorders and he did not abuse alcohol or take illicit drugs.

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2). However, due to the nature of the Claimant’s pre-existing condition, his functioning is likely to decline over time in any event. The key question therefore in any claim for damages is ‘What would the Claimant’s functioning have been over time had the road traffic accident not taken place? Or ‘but for’ the accident’ what would the Claimant’s functioning 19

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have been? While the Claimant lived an independent life prior to the accident, due to his pre-existing condition it is likely that his physical and cognitive functioning would have declined over time, but it is difficult to say at what point this might have occurred.

Therefore, damages will be assessed taking into account where applicable that the Claimant’s postaccident condition, or parts of it, would have arisen in any event because of his pre-existing condition.

Other issues involved in settling this claim Prognosis and future risk Where an accident has long-term effects it is necessary to continue to compare the situation into the future as it would have been in the absence of the accident with what it will now be. Whilst to the date at which the expert reports, the ‘but for’ situation is established on the balance of probabilities, that is as being more likely than not, and compared with the actual situation as obtained from any clinical examination, from the claimant’s account, from medical records and from any other available evidence.

The expert must seek to clarify the difference between the situation consequent on and after the accident (and the likely future prognosis) and the situation as it would have been but for the accident, and therefore how the Claimant’s life has been affected by the index event.

When looking into the future it is necessary, as best one can, to compare the hypothetical ‘but for’ position with the less than certain future situation as a consequence of the accident. The balance of probabilities is no longer the test and the likelihood of both situations (the ‘but for’ situation and the situation consequent on the accident) should be addressed. Damages are awarded according to the level of risk and therefore it is necessary to use, so far as is possible, a range of percentage chances rather than the vagaries of language (such as a “small”, or “significant”, or, worse still, “not insignificant”, risk).

‘Acceleration’ and ‘Exacerbation’ The terms ‘acceleration’ and ‘exacerbation’, although not medical or legal terms of art, are sometimes used in the medico-legal field to describe the relationship between the situation since the accident when compared with the likely progression of a pre-existing condition (both temporal and qualitative differences).

3). The use of the term ‘acceleration’ would appear to require that the injuries, symptoms and effects that the Claimant suffered as a result of the accident are exactly the same as those the Claimant would have suffered in the absence of the accident, but experienced earlier (their inception is at an earlier date) due to the index event. However that is rarely the case.

This may require the expert to report on the future likelihood of the development of symptoms or to consider possible future risks and complications of the Claimant’s condition. Again, and for the same reasons, the chance of such future risks and complications should be addressed, using so far as is possible a range of percentage chances, and the effects and consequences of each such risk and complication should be described.

4). The use of the term ‘exacerbation’ would appear to require that the injuries, symptoms and effects that the Claimant suffered as a result of the accident are exactly of the same type as those the Claimant would have suffered in the absence of the accident, but more severe due to the index event.

Life Expectancy The Claimant’s life expectancy in the situation that exists following the accident may well be relevant to the assessment of continuing future losses, such as loss of earnings, or the cost of care. It may also be important to compare this post-accident life expectancy with the life expectancy in the absence of the accident, although this is unlikely to sound in significant damages.

While these two terms can be helpful in appropriate, and therefore in limited, cases, the expert should be very circumspect in using them to describe the situation from a clinical point of view and should rather review the symptoms, signs and effects of the accident. General statements, such as “the symptoms were accelerated by 3 years”, are rarely helpful to the lawyer seeking to assess damages. The lawyer needs to have described the development of symptoms which have been experienced post- accident together with their likely effect and consequences and a comparison of that situation with the symptoms and their effects and consequences had the accident not taken place. That may in some cases include reference to the period by which symptoms have been brought on earlier as a result of the accident. In a similar way, in relation to any ‘exacerbation’ of symptoms, the lawyer requires a comparison of the symptoms as they would have been in the absence of the accident and a comparison of those symptoms, and their effects and consequences following and consequent on the accident.

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In contrast with prognosis and future risks and complications, life expectancy is decided ‘on the balance of probabilities’. The issue to be answered is to what age, or for what period, is the claimant more likely than not to survive. This is established as a present fact, not as a future risk. Life expectancy is based on the present known facts.

Applying the legal principle to this case The following shows an example of how the issues raised by this case should be addressed in order to provide the legal team, and the court, with the opinion necessary in order to carry out a proper assessment of damages. We recognise that on complicated issues such as in this case there could well be a significant variation in opinion from different experts instructed.

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The expert starts by addressing what the situation would have been in the absence of the accident, seeking to describe how the Claimant would have been both now and into the future. The expert then describes the situation as it now is and will be, and thereby provides an opinion and description of the difference that the accident (and TBI) has made.

Emotional / Neuropsychiatric problems 6. Research has also found that the association between cognitive test scores and burden of disease was higher than between measures of physical disability and disease burdenxvi. Individuals affected

by MS not only experience cognitive problems and the well-known physical disability, but also emotional and neuropsychiatric symptoms, such as depression (clinical or subclinical depression may be present in up to 50% of MS patients and in 20-25% depression becomes so marked that it requires treatment by a specialist), bipolar disorder (relatively rare but more common in MS than in the general population) and euphoria (after a long disease duration usually coupled with marked physical and cognitive deficits)xvii .

Opinion on Causation What would the situation have been in the absence of the TBI given the Claimant’s pre-existing MS? 1. At the time of the accident the Claimant had relapsing-remitting MS (he had been diagnosed 8 years earlier at age 37). While relapsing-remitting MS is associated with periods of relapse followed by recovery, typically over time the disease deteriorates into secondary progressive MS.

What impact would these problems have had on the Claimant’s everyday life?

2. The Claimant had not received immunomodulatory drugs and therefore his condition was highly likely (90% chance) to change into secondary progressive MS within 20-25 years from onsetxi. Most commonly the transition from relapsing-remitting to secondary progressive took place after 21 yearsxii (some variability was present in their sample, ranging from 1 year to more than 50 years).

Employment 7. Severity of cognitive problems varies and there is no general consensus as to what is an acceptable measure of cognitive impairment (vs. a mere dysfunction). Employment can be regarded as an objective measure of cognitive abilities and independent functioning (cognitive functioning and fatigue levels mediate the relationship between physical disability and employment statusxviii).

3. Therefore the Claimant was highly likely (90% chance) to develop secondary progressive MS some 12 to 17 years after the date of the accident (at age 57 to 62). Once a secondary progressive course has been established, MS starts to deteriorate steadily and individuals typically experience a slow and unremitting deterioration in their functioning.

8. The likelihood of employment differed depending on the type of MSxix; individuals with relapsingremitting had the highest employment rate vs. those with secondary progressive MS. In the overall sample, 66.1% of individuals with relapsing-remitting MS were employed either part-time or full time, but only 24.3% of the individual with secondary progressive. Based on this research, once he had developed secondary progressive MS, the Claimant would have been unlikely (say 75% probability) to continue in employmentxx. Therefore, 20-25 years after the initial diagnosis of relapsing-remitting MS (at age 57 to 62), with the onset of secondary progressive MS the Claimant would have entered a period when he would have had only about a 25% chance of remaining in employment.

Physical functioning 4. MS is well known to cause physical symptoms and disability, including decline/loss of mobility, pain, fatigue, spasticity, dysarthria (difficulty with uttering speech and incontinence) and dysphagia (difficulty with swallowing). The assessment of these symptoms is the province of Neurologists with a specialism in MS. Cognitive functioning 5. Although MS has for a long time being considered predominantly a condition that caused physical disability, the cognitive problems associated with MS have become the focus of research within the last 20 yearsxiii. Studies report that cognitive impairment is common in MS . While cognitive problems in MS are a major factor in unemployment, impairment of everyday functioning and social problemsxv, it is not possible to accurately assess how these would impact on everyday life functioning because of the several variables at play, including pre-morbid personality, social and practical support available, and the presence of co-morbid psychiatric disorders.

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Care needs 9. As MS developed he would have been likely to have increased care needs. The assessment of this will require the input of a Neurologist with a specialism in MS and a suitable care expert.

Social functioning (and intimacy)/hobbies/activities 10. There is variability in how cognitive problems associated with secondary progressive MS impact on the ability to work, as individuals have different pre-morbid abilities and different jobs involve variable cognitive involvement. Secondary progressive MS also impacts on physical abilities. In this particu-

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lar case, the Claimant had ‘average’ intellectual abilities pre-morbidly and probably at about the time he was no longer able to work due to secondary progressive MS, he would not have been able to drive his vehicle (even with adaptations).

MS (that is at age 57 to 62). Therefore the difference between the Claimant’s situation as it would have been in the absence of the accident, that is effectively as it was prior to the accident, and how it will now be is entirely attributable to the consequences of the accident and the TBI.

11. The Claimant, who is not married and does not have children, was at high risk for social isolation due to the MS and as a consequence of the physical, cognitive problems and emotional problems due to MS, he would have been likely to struggle with continuing to enjoy leisure time and meet his friends after he developed secondary progressive MS. MS also interferes with sexual functioning (after an average of 15 years from diagnosis the most common sexual problems in men was a loss of libido, prevalence of 70.4%xxi).

Post age 57 to 62 16. Following the development of secondary progressive MS (age 57 to 62) the difference between the Claimant’s cognitive state without and with the TBI will diminish. It is not appropriate to simplify this development by describing it as “acceleration” of inevitable symptoms of MS by a number of years as the development and onset of the symptoms is likely to be more gradual and to involve fewer areas of cognitive deficit than has been the case following the TBI. 17. He would have been likely in any event to have experienced disruption to his everyday functioning to an extent that he would have been unlikely to continue to be able to work and would at some point not be able to continue to drive.

Quality of life 12. MS affects quality of life and in particular physical, cognitive and emotional symptoms all contribute to an individual’s clinical situation. Although there is an absence of data on this aspect, based on my experience and expertise had the Claimant not sustained the TBI, his quality of life would have been significantly reduced by MS at some point which I would estimate as being some 5-10 years from secondary progressive diagnosis, that is about age 62 to 72.

18. Although it is not possible to exactly quantify this, it is likely that the Claimant’s cognitive and physical problems would have made him at risk of social isolation and neuropsychiatric disorders, to a much higher extent that the general population. It is impossible to state at what stage from a cognitive viewpoint he would have required residential care or substantial or 24 hour home care but his care needs from a cognitive viewpoint would significantly have increased.

Present Situation 13. As set out above, at 18 months after the accident the Claimant could not be discharged home as he could no longer live independently. He resides in a care home that specialises in adults with severe cognitive problems, although he could be re-housed in the community if he had sufficient care arrangements in place. He is no longer in employment.

In old age 19. As the Claimant was already affected by MS, were he to develop dementia, his cognitive and everyday functioning would have been affected sooner than had this not been the case (due to a reduced cognitive reserve). As the Claimant also sustained a moderate TBI, his cognitive reserve has been lowered further.

Over time as the MS progresses, his functioning is likely to decline more rapidly than had he not sustained the moderate TBI.

14. The Claimant’s safety awareness is poor and he struggles with impulse control and maintaining social relationships. He is broadly independent with his toileting needs but requires assistance with most activities of daily living such as washing and dressing; he needs assistance to go out of the home due to poor safety awareness and he is unable to manage even small amounts of money. His needs for support are significant. There is likely to be some slight further improvement in his cognitive state up to about 24 months post-accident, but the overall picture and need for support is unlikely significantly to change.

Future risks as a result of the TBI 20. There will be an increased risk of epilepsy as a result of the moderate brain injury, this increase reducing with time. This is a matter to be addressed by a neurologist or other appropriate expert with appropriate specialisation.

What difference has the accident/TBI made?

From accident to age 57 to 62 15. The difference between his situation prior to the accident and now is entirely attributable to the consequences of the accident and the TBI. His cognitive state was almost certain to have remained the same during this period but for the TBI, and was most likely (say 75% probability) to have continued the same until 20 to 25 years of the initial diagnosis of EXPERT WITNESS JOURNAL

21. There may also be an increased risk of mortality (reduced life expectancy) as a result of epilepsy and/or the combined effects of the MS and TBI (including reduced mobility) and again the existence of such risk and the attribution of it to the effects of the TBI are matters to be addressed by a neurologist or other appropriate expert with appropriate specialisation.

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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.

Summary It is as important for clinical experts to be aware of the applicable legal principles in their medico-legal practice and to apply them in providing opinion as it is for the lawyers in their instructions to experts and in seeking to assess damages. Whether dealing with a complicated and involved case, such as this example, or a straightforward minor injury, the same process should be followed in every medico-legal report. A failure to do so will result in a sub-standard report and an inaccurate valuation of the claim.

Assessments can also be carried out in Italian.

Consulting rooms in Surrey, London (Harley Street and London Bridge) and other locations. www.monaciconsultancy.com References i Motl R.W., et al. (2011) Lifestyle physical activity and walking impairment over time in relapsing-remitting multiple sclerosis: results from a panel study. American Journal Physical Medicine and Rehabilitation 90: 372–379.

Giles Eyre Barrister, Associate Member of Chambers at 9 Gough Square, London.

Co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (Eyre & Alexander)(2nd edition 2015), published by Professional Solutions Publishing (www.prosols.uk.com)

ii Rao S. M., et al. (1991). Cognitive dysfunction in multiple sclerosis. I. Frequency, patterns, and prediction. Neurology. 41(5): 685–691. iii Zakzanis K. K. (2000). Distinct neurocognitive profiles in multiple sclerosis subtypes. Archives of Clinical Neuropsychology. 15:115–136.

Blogs at www.Medico-LegalMinder.net Gives training and seminars to and holds workshops for experts on providing effective expert reports and giving effective evidence in court.

iv Hannay, H. J. et al. (2004). Neuropathology for Neuropsychologists. In M. D. Lezak, D. B. Howieson, D. W. Loring (Eds.), Neuropsychological Assessment (pp.157–285), New York: Oxford University Press.

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

• Post-concussion syndrome

• Stroke

• Anoxia

• Epilepsy

• Dementia

• Alcohol and drug abuse

• Neuropsychiatric conditions

• Mental capacity & fitness to plead assessments Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can be carried out in Italian. Dr Monaci also has a good knowledge of the Swedish language and has experience of working through interpreters.

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 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

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v Thornhill S., et al. (2000). Disability in young people and adults one year after head injury: prospective cohort study. British Medical Journal, 320: 1631–1635.

Neurosurgery and Psychiatry. 81(9): 1039-1043. xiii Amato M. P., et al. (2001). Cognitive dysfunction in early-onset multiple sclerosis: a reappraisal after 10 years. Archives Neurology. 58(10): 1602–1606.

vi Hannay, H. J. et al. (2004). Neuropathology for Neuropsychologists. In M. D. Lezak, D. B. Howieson, D. W. Loring (Eds.), Neuropsychological Assessment (pp.157–285), New York: Oxford University Press.

xiv Rao S. M., et al. (1991). Cognitive dysfunction in multiple sclerosis. I. Frequency, patterns, and prediction. Neurology. 41(5): 685–691.

vii Fleminger S., et al. (2003). The neuropsychiatry of depression. Neuropsychological Rehabilitation, 13, 65–85.

xv Halper J., et al. (2003). Rethinking cognitive function in multiple sclerosis: a nursing perspective.

Journal of Neuroscience Nursing. 35(2): 70-81.

viii Brown R.G. (2004). Psychological and psychiatric aspects of brain disorder: Nature, assessment and implications for clinical neuropsychology. In L. H. Goldstein & J. E. McNeil (Eds.), Clinical Neuropsychology: A practical guide to assessment and management for clinicians. Chichester: John Wiley & Sons.

xvi Hoffmann S., et al. (2007). Cognitive Impairment in MS. Current Opinion in Neurology. 20(3): 275-280. xvii Wyss D. & Kusselring J. (2008). Neuropsychological problems: cognitive and affective disturbances in multiple sclerosis. In D. Wyss D. & J. Kusselring (Eds.), Cognitive Neurology (pp.367-382). United States: Oxford University Press.

ix Flashman L.A., et al. (1998). Lack of awareness of deficits in traumatic brain injury. Seminars in Clinical Neuropsychiatry, 3, 201–203.

xviii Cadden M. & Arnett P. (2015). Cognition, Fatigue, and Motor Functioning: Factors Associated with Employment Status in Individuals with MS. International Journal of MS care. 17(6): 284-291.

x Eyre G. & Alexander L. (2015). Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd ed– www.prosols.uk.com).

xix Boe Lunde H. M., et al. (2014). Employment among Patients with MS – a population study PLoS One. 9(7).

xi Troiano M., et al. (2003). The transition from relapsing-remitting MS to irreversible disability: clinical evaluation. Neurological Sciences. 24 (5): 268-270.

xx Kisic-Tepavcevic D., et al. (2015). Sexual dysfunction in multiple sclerosis: A 6-year follow-up study. Journal of the Neurological Sciences. 358: 317–323.

xii Koch M., et al. (2010). The natural history of secondary progressive MS. Journal of Neurology,

Dr Dawn Bailham Consultant Clinical Psychologist MSc Forensic Psychology DClinPsych Doctorate in Clinical Psychology BSc (Hons) Psychology

Dr Dawn Bailham is a Consultant Clinical Psychologist with over 14 years experience working in Child and Adolescent mental health inpatient and community settings, Forensic mental health with adults, adults with learning disabilities, and younger adult males. In her current position Dr Bailham is Lead Psychologist in a low secure CAMHS inpatient service for adolescents aged 12 – 16 years with emerging personality disorders.

Dr Bailham has considerable experience spanning 10 years of assessing parents and children within the family courts and preparing reports. She has experience of conducting forensic assessments particularly for domestic violence, sex offending and physical violence.

She has attended court as an expert witness on numerous occasions giving evidence in the family courts, and on a number of criminal law and personal injury cases. She completed the University of Cardiff Bond Solon Certificate for expert witnesses working in criminal law in September 2013, as well as additional modules in family law.

Tel: 07801 266 010 Email: dawnbailhan@icloud.com Area of work Northamptonshire and Nationwide.

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Understanding Interviewing Reliability and Expert Uncertainty

by Hugh Koch,clinical Psychologist and visiting professor to Stockholm University Law School. This is an extract from ‘Legal Mind’ published 2016 “Listening to the claimant’s description of feeling low, I had several dilemmas facing me – how depressed is depressed (severity), what and why did this start (causation), what backs this up (validity) and, putting all the evidence together, was my opinion consistent with that of “ten other similarly experienced experts” (certainty)”.

The courts in the UK, Canada and USA are increasingly looking to accurately assess the credibility of claimants, and whether evidence is reliable and valid.

A medico legal expert frequently interviews a claimant to establish the injury, psychological or physical, that has occurred, and whether this is attributable to the index event.

The seven key medico-legal questions is repeated in Fig XXXII below. Interview information, witness statements and medical and occupational medical records, provide the expert with an array of ‘data’ which he/she diligently considers in order to arrive at the most logical opinion.

The reliability of a diagnostic process refers to its replicability, or the stability of its diagnostic outcomes i.e., similar results should be obtained from one assessment to another of the same subject, both over time (assuming no real change) and with different evaluators.

Fig XXXII: The Key Medico-legal questions 1) What, if any, injuries or medical conditions resulted from the claimants’ accident?

Validity is the degree to which a diagnostic process assesses what it purports to assess. The validity of a diagnostic process is closely bound to the validity of the diagnostic framework it operationalizes, process, encompassing much more that measurement or psychometrics (1). For example, if the concept of the diagnosis of the particular condition in those circumstances in ICD-10 or DSM-V is flawed, this will fundamentally undermine the validity of the diagnostic process. This may be particularly true when symptoms are presented in the context of litigation.

2) Are there injuries and conditions consistent with attributable to this accident?

3) Are there any symptoms that relate to pre-exiting conditions, and to what extent have these been exacerbated by the accident or made the claimant vulnerable to the accident related injuries?

4) What was the course and duration of these injuries and medical conditions to date were these within the expected range?

Both these processes are to some degree involved in the medico-legal situation in that ultimately it is only the Court/Judge who has the right to determine fact, ‘truth’ and certainty (see Figure XXXIII below).

5) Was any absence from work in light of the injuries sustained reasonable?

6) What treatment has already been received and/or is likely to be needed in the future for these conditions?

Fig XXXIII:

7) What is the likely extent and duration of any continuing disability?

Reliability

The opinion is then ‘tested’ via claimant response, lawyer clarification and debate, followed by between-expert discussion, before occasionally being tested in Court.

Throughout this process there are two factors which the expert must grapple with to arrive at a ‘best-fit’ opinion – reliability and validity.

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NTY C E RTA I Validity

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Use of Structured Interviewing To assess the presence and level of psychological symptoms or disorders a comprehensive interview should be carried out. The experienced clinician screens areas for investigation based on: • Open ended clinical interview.

• Self-report biographical and factual information.

• Specific closed questioning for enhanced focusing.

- Claiming symptoms which are experience by most of the general population (e.g. losing objects, forgetting names occasionally).

Thorough clinical interviewing and data gathering The expert clinician, like the expert lawyer, develops skills over time in “listening” to available information and organising a “picture” of an individual containing:(a) facts about the trauma and its after effects;

Presence of symptoms must be accompanied by evidence of severity and duration of symptoms. Clearly the statement “I don’t sleep well now” can refer to several different types of sleeping pattern. Were this being assessed by a very simple check box approach, a ‘tick’ would appear in the positive box and an opportunity for further information would be missed. Instead the positive response needs a follow-up series of questions in respect of whether the problem is falling asleep, waking up, lack of restorative sleep or disturbance by mental activity or physical pain.

(b) the individual’s perception of his/distress (physical and psychological); (c) significant other’s perception of the individual (e.g. family, other experts, GP); (d) an appraisal of reliable behavioural data on ability and disability; “I can’t lift things” or “I can’t drive” must be backed up by examples of previous behaviours which are now avoided (partially/totally) and frequency of such avoidance to reflect level of disruption.

Structured and semi-structured interview formats help clinicians focus their data collection and increase the reliability and validity of their opinion. However, experienced clinicians do not need to solely follow a prescribed structured scheme as they will learn their own questioning pattern, often known as the phenomenological approach.

(e) ‘Networking’ with other experts and/or available reports to try and not only present one expert view, but also facilitate a development of the overall picture of an individual across clinical disciplines/functions (e.g. orthopaedic, neurological or psychological).

The use of DSM-V and ICD-10 classifications of mental disorders have significantly improved the reliability and validity of diagnosis of emotional distress, where symptoms can be aligned to a ‘best fit’ diagnosis which can be communicated and discussed between experts and with the Court. However, the Courts should be encouraged to compensate individuals according to disability (i.e. actual loss) and disruption rather than, purely a technical diagnosis.

In the case of psychologists and psychiatrists, both use one or other of the two classification schemes available to them: The two diagnostic classification systems of DSM-5 (American Psychiatric Association) and ICD-10 (WHO) allow clinicians (psychologists and psychiatrists) to assess two aspects of trauma – the type of reaction (e.g. stress, anxiety, depression) and levels of severity (acute/chronic and sub clinical or not clinically significant). This has crucial implications for both prognosis and treatment, and quantum assessment. Certain diagnoses, such as post traumatic stress disorder (PTSD) and chronic pain, need extra careful assessment as they have very significant effects on occupational, social and psychological functioning and also have higher quantum implications.

Within the interview, the clinician listens for descriptions of symptoms which appear unsound or unreliable. The most common indicators of unreliability are shown in Fig XXXV below.

Fig XXXV: Indicators of unreliability (a) “Blanket” problems and gross symptoms claiming - Almost all areas of enquiry produced claiming discomfort.

The use or application of one of the two main clarification systems (DSM-5) or (ICD-10) is an ‘Expert System’ i.e., the criteria need to be considered in a dimensional manner (i.e. along a continuum) and in conjunction with clinical judgement and other objective information.

(b) Selective Recall - Poor recall of pre-accident traumas (e.g. previous accidents or minimising of pre-accident stress).

- Difficult acknowledging evident recent improvement in distress or functioning.

“My client does avoid car travel – this disrupts her life surely this is a specific phobia DSM-5.300.29?” – This statement needs to be set in the context of neck pain (preventing driving anyway) absence of car to drive, no need to drive and evidence of hire car provision and driving.

(c) Magnifying Recall - Use of a single example only to reflect apparent consistent and sustained distress (e.g. when I drove the first time after the accident it was awful). (d) Discrepancy between self-report and other evidence - between client and GP information.

- between client and work information.

- between client and relative information.

Use of neuropsychological and psychometric tests Claimants often present with neuro-cognitive complaints, irrespective of any cerebral impact or damage. These include memory, concentration, problem-solving and general distractibility. In addition to a clear and succinct clinical and functional description of these difficulties, a

(e) Production of rare or common symptoms - Claiming unusual, strange, atypical or preposterous symptoms.

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Evidential Reliability – the legal perspective When assessing evidential reliability, in 2011 the Law Commission (5) stated that experts should have regard to a number of factors including: a) The extent and quality of the data on which the opinion is based;

neuropsychological assessment is frequently sought to provide statistical, organised and more objective opinion about the severity of neuro-cognitive impairment. In addition, some tests used are also helpful in assessing “effort and engagement” – it is important to know that an individual has provided full and appropriate effort throughout the assessment (e.g. word memory test, visual scanning test.

b) If the opinion relies on an inference from any findings, and whether the opinion explains how safe or unsafe the inference is;

Questionnaires and rating scales are predominantly used to assess consistency of reporting across different areas by claimants. For example, a claimant who at interview describes severe depression, yet on testing denies the typical symptoms of depressed mood is probably illustrating a use of ‘magnified’ language not consistent with psychological disorder.

c) If the opinion relies on the results of the use of any method (for instance, a test or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin or uncertainty, affecting the accuracy or reliability of those results; d) The extent to which any material upon which the opinion is based has been reviewed by others with relevant expertise and the views of those others on the material;

In addition to the above, some tests purport to specifically address fabrication of symptoms. These are an additional aid to the clinician in building up the widest picture:1. Minnesota Multiphasic Personality Inventory (MMPI) ‘F’ scale – This consists of similar questions asked in different ways which ‘truthful’ clients would answer consistent on and/or without exaggeration or ‘false positives’.

e) The extent to which the opinion is based on material falling outside the expert’s own field of expertise e.g. organicity of pain. f) The completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion.

2. Gough Dissimulation Scale (2).

3. Gudjonnsen Suggestibilty Scale (3).

All such test data needs careful interpretation They have been the subject of research attempts at validation in the legal context; many often quoted tests (e.g. Beck DI, Beck AI, HADS, Hamilton, Impact of Events etc.) are not validated in the legal context for diagnostic purposes and need to be used with caution in order to avoid misleading the Court.

g) Whether there is a range of expert opinion on the matter in question; and if there is, where in the range of opinion lies and whether the expert’s preference for the opinion proffered has been properly explained.

The law commission are developing further the concept of the ‘Reliability Test’ in assessing evidence; such test are also know already in the USA (Daubert test in supreme court; Frye test in federal court).

When a claimant presents his/her case for scrutiny, initially via interview with medical-legal experts, it is difficult to disentangle the validity, reliability and truthfulness of the alleged injury and its circumstances. In ‘testing the evidence’ the information given must be examined critically to establish if it is consistent with the possible diagnosis and causation.

Credibility and Truthfulness Ultimately the outcome of a personal injury case will turn on whether the claimant has been, or seen to be, truthful in the presentation of their claim.

Credibility involves the assessment of the trustworthiness of a claimant’s testimony based upon the veracity or sincerity of the claimant and the accuracy of the evidence provided – this includes consistency of recall, harmonization with independent evidence, reasonableness of testimony, and the claimant’s general demeanour and presentation.

It is difficult for a Judge, or two medico-legal parties, to articulate with precision, the complex interaction of various versions of index event related issues.

Validity, reliability, credibility and truthfulness and certainty are overlapping concepts. They have all become somewhat confusing terms, not well defined and interpreted differently on different occasions. The more precise variables such as they are defined, the more utility they have.

A distinct problem arises in this area when physical causation is disproven. This leads to the conclusion that causation is psychological – whether conscious or unconscious.

Ascertaining which type of motivation pertains is crucial to a valid assessment and opinion.

Cases in which challenges involve one or more of these variables must be mounted on substantial, clear evidence and not merely speculation or personal intuition (Murray and Jamieson, 2011). Collateral evidence (disinterested witness or contemporaneous medical) is often the key to ascertaining credibility and certainty.

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Untruthfulness and malingering both require a degree of intentionality, more than just unreliability or inconsistency.

As the evidence for dishonest, conflicting responding increases, so the level of likely untruthfulness increases.

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On this continuum claimants commonly display the following characteristics: 1. Omission of key information.

The clinical assessment of malingering is complex and requires multiple sources of converging evidence. Experts have an ethical responsibility to report assessment results fairly, accurately and objectively.

2. Exaggeration of information (i.e. depth, quantity, severity) and over generalising.

‘Malingering’ is a term used by many which, according to DSM-5 (V65.2) involves four criteria to be considered: • Is the information being gathered part of a medico-legal context.

3. Inconsistency of approach between two or more areas.

4. Suggestibility for producing erroneous accounts under interviewing or interrogatory conditions.

• Is the claimant suffering an ‘Antisocial Personality Disorder’ (or has antisocial traits).

The Mental State Examination Many expert assessors undervalue the mental state examination, mixing it with the patient’s history of presentation and account of symptoms. However, the mental state of a subject offers a plethora of objective information about an individual, which can then be compared with their subjective account.

• Is there a discrepancy between the self-report complaints/system and other more objective findings.

• Is there a lack of cooperation or effort?

“Her evidence of inability to drive her car due to intense fear was inconsistent with surveillance evidence showing her driving her children to /from school every day”.

The objective assessment of mood allows comparison with the individual’s account of their affect. Are they depressed?

Do they laugh if the interview becomes light-hearted? Do they only cry when discussing their depression? Is this emphatically understandable or part of crude ‘play-acting’?

Are they demonstrably restricted by pain, or do the present histrionic pain behaviour. Do they use crutches/sticks or other aids appropriately. How have they been in the waiting room?

As above, the concept of malingering can be confused with specific psychological disorders such as chronic pain disorder and somatoform disorders where seemingly unreliable data is motivated by unconscious and involuntary processing rather than intentional fabrication.

Inconsistencies or discrepancies in the patient’s self-reported symptoms include:1. Self-report history with documented history.

Cognitive testing (at a clinical level) can also be revealing.

Can they perform normally on tests of attention and concentration whilst complaining of severely curtailed attention? Are they able to remember? If they cannot, is this in accord with the full account that they have just given?

Is there evidence of exaggeration, such as with poor immediate recall or the so-called ‘Ganser questions’ (Factitious Syndrome).

2. Self-reported symptoms are discrepant with known patterns of brain functioning.

3. Self-reported symptoms are discrepant with behavioural observations.

4. Self-reported symptoms are discrepant with information obtained from collateral informants.

5. Evidence of exaggerated or fabricated psychological dysfunction.

Comparison of claimant history and symptoms with GP records The expert is typically presented with several different sources of medical and occupational records. However, frequently the most useful is the GP medical record of attendance (typically computerised for more recent years).

This gives the expert the opportunity to compare what the claimant has disclosed either through interview or witness statement about: a) their condition and b) their GP attendance.

Over reliance on self-report information Self-report information is an important aspect of any psychological evaluation. Mental health professionals often proceed on the assumption that clients will provide an honest and complete description of their symptoms.

However, this sort of forthrightness cannot be taken for granted. Assessment of malingering is crucial; failure to examine patterns of dissimulation can render an assessment redundant.

One key question remains: whether the Claimant would attended their GP for diagnosis and treatment if they had a clinically significant psychological injury? Some clue to this can be found in their previous records; if they previously attended for psychological problems, there is unlikely to be a post index incident reason why they have not attended unless their condition is very mild or absent.

Clients provide information about their truthfulness from the very start of the litigation process. Written communications, telephone conversations and face-to-face meetings provide invaluable information concerning a client’s motivation to be open and honest.

Truthfulness like most other behaviours is a continuum as shown below:Telling the Selective truth validly truthfulness and reliably and lying

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A formal GP chronology (typed and complete as far as possible) is essential to enable the experts on both sides to sensibly and logically, answer pertinent questions in a nonpartisan, objective manner. What does the pattern of attending indicate about: 28

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• • • • •

During this process, there is a search for the ‘best fit’ opinion.

Pre-accident status Immediate post accident experience Diagnostic and treatment provided Other factors cited (related or unrelated) Duration of symptoms and treatment?

With regards to increasing objective and contemporaneous information, if all Claimants are expected to have attended their GP or equivalent at the earliest possible time postindex accident, this would provide a contemporaneous and independent record from the GP of physical or psychological injuries and causation. It seems suspicious when the trail of complaint only begins with the commencement of litigation.

“His allegation of continuing high levels of pain was inconsistent with only one attendance at his GP in the 24 months since he returned to factory work”.

Despite some gender differences (male/female) with emotional expression and symptom disclosure, one would expect “on the balance of probabilities” that any individual with a significant psychological injury would attend their GP, in the first instance, for help and guidance. This comparison is therefore essential to provide information on the validity and reliability of the claimant’s circumstances.

It should be remembered that it is encumbent on the claimant (or his/her representatives) to “prove” the case of attributing injury to index event. However, the role of single event trauma can be over emphasised and co-existing psychosocial factors which are unrelated to the trauma may be both critical and under estimated.

Careful exploration, in interview, of the claimant’s decisionmaking and rationale, with regards to whether or not they sought professional support, can be particularly illuminating in relation to this issue. Consideration of the response also provides further insight into the way in which the claimant perceived, construed, evaluated and ‘managed’ their postaccident injuries.

It is important to place and compare the claimant’s overall ‘picture’ into the context of epidemiology, normality and what is called a ‘default mode’ or ‘real world perspective’ (14) – in plain English, what sort of reaction would be expected to be found in the general population. This must be particularly the case when dealing with adjustment reactions/disorders, or where a whole family complain of the same psychopathology.

Testing certainty via joint opinion discussion The aim of the joint discussion is to help the court clarify levels of agreement and disagreement between two experts on opposing sides. In doing so, it encourages the testing of robustness of the evidence, in terms of its reliability and validity. It is an invaluable process which clarifies pre-accident vulnerability, pre-existing symptoms, range of diagnostic opinions, post accident duration and attribution, and prognosis.

In this context it is important to remember and apply the ‘But For’ test to decide objectively the relevance of pre-index event history. However, claimant’s may have difficulty recalling their history comprehensively, thus making the expert’s ability to apply the ‘But For’ rule difficult and consequently, less reliable.

Vignette: “I am struck by the inconsistency between Mr X’s testimony in medico-legal interviews and GP record chronology. He displays pre-accident symptoms and exaggerates current severity. He over attributes symptoms to the index accident and for which there are other explanations” Judge B (Balance) Act.

How can reliability and validity be enhanced?

Ultimately, any ‘certainty’ of evidence depends on whether the it is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. Findings of credibility and reliability require a comprehensive and critical examination of the evidence as a whole – not only one element to the exclusion of others.

The expert is explicitly placed in the role of impartial, neutral and objective assessor of evidence, as stated in the Statement of Truth, and their opinion will be subject to further scrutiny and review. The Expert is therefore driven to consider the evidence before them, and their synthesis of it, in such a way that the ‘best fit’ test must hold true for their conclusions from multiple perspectives. This will be applied in different ways in different medical specialities.

When investigating characteristics of reliability and validity in claimant’s interviewing content and style, there are several aspects of the patient history which are addressed: • Pre accident condition and psychosocial context.

• Index trauma and peri-traumatic context (soon after).

• Immediate short term reaction and level of disruption.

• Natural improvement.

• Prognosis and change/treatment expectations.

The current litigation process increases ‘evidential certainty’ as it progresses. The typical ‘trail’ (Figure XXXV) is shown below: Fig XXXV: Claimant Statement

defendant obtained medical report EXPERT WITNESS JOURNAL

claimant –obtained medical report

GP record review

claimant legal Team Analysis

defendant team analysis

Joint opinion

Mediation or Court hearing

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In striving to achieve this, the expert must analyse all of the information available to them in such a way that they are constantly seeking to triangulate the data and to assess the degree to which the evidence ‘hangs together’. If it does not, then this must be their next focus of enquiry and warrants comment within the body of any report produced. It follows, as part of the process of assessment, that it is incumbent upon them to state their view of the degree to which the data does fit together and the degree to which the conclusions reached are reasonable, based on consistent data (that is ideally collected from multiple sources) and within the range of expected reactions to traumatic events.

2. Evidence of other life events and non accident-related symptoms reinforced by GP attendance that could explain reactions to index event or indicate exacerbation of index event difficulties.

3. Evidence of pre-existing symptoms in the 12 months immediately prior to the index event that could indicate the possibility of aggravation of already existing symptoms.

4. Evidence of earlier psychological symptoms (more than a year prior to the index accident) indicative of vulnerability to later symptoms when stressed, or likely occurrence of later symptoms irrespective of further events.

This burden of responsibility will, rightly, continue to propel experts to pursue the ‘holy grail of certainty’. In so doing, the nature and process of ‘best practice’ in assessment will continue to develop and evolve.

In general, evidence of inconsistencies between the claimant’s account and the medical records needs to be considered in forming an opinion on the claimant’s credibility. One specific point on forensic history, if a person denies a forensic or criminal history that is present in the GP records, this is evidence of untruthfulness. Also GP records are not totally accurate records of a criminal history, and GPs will sometimes omit embarrassing forensic information as not medically relevant.

Current research into evidential reliability I am currently investigating in specialty-specific detail what variables are most prone to unreliability in the two clinical areas of psychology/psychiatry and orthopaedics. Experts in these two fields are being asked to provide information on which aspects of their opinion are most prone to variability, either within their own practice or between them and other experts (e.g. when joint opinions are prepared).

Categorising GP entries GP entries can be sub-categorised as follows (Fig XXXVI): Fig XXXVI: 1 Pre-accident c. “Accident” Specific i.

Previous traffic accident symptom description ii.

Diagnosis by GP iii.

Treatment by GP

Reviewing Medical Notes Access to a claimant’s medical records from their GP/Family practitioner is one of several major and essential sources of information used in formulating an expert opinion for civil litigation purposes alongside claimant self-report, psychometric testing, robust history taking and other sources of information (family or occupational).

How GP data helps opinion formulation Expert opinion formation is enhanced by: 1 Legible records, preferably computerised.

d. Symptom Specific i.

Depression ii.

Anxiety

2 Clarity of symptom type, site, frequency, intensity, duration, onset and course over time

e. Additional (one year pre-index accident) information i.

Adverse life events ii.

Medical disorders

3 Specificity of intervention (medical and psychological)

f. Personality or coping style

4 Motivational factors, especially in relation to employment continuity

g.

Forensic Data

5 Pre accident annual frequency rates of GP attendance 2 Post Accident – Accident-Specific a. First Month i.

A/E Hospital attendance; GP description of RTA; Stress; Mood disturbance (including nightmares), situational anxiety ii.

Diagnosis by GP iii.

Treatment by GP (reassurance, psychotropic medication; behavioural advice, referral for counselling or CBT therapy).

Given that much psychological and medical opinion is based initially upon the account of the claimant, one way of checking their credibility is by comparing their account of pre-accident and post-accident injuries with the medical attendances recorded. Experts should understand the various degrees of attendance inconsistencies when providing an opinion.

A careful analysis of GP records will be followed by a set of conclusions about the significance, presence of absence of GP entries, both before and after an index event. The type of conclusion drawn will include: 1. Evidence of disorder reinforced by accident-related GP attendance, diagnosis and treatment, plus duration of difficulties EXPERT WITNESS JOURNAL

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Further, ongoing symptom description ii.

Diagnosis iii.

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3 Non-Accident Specific a. First Month b. Subsequent months i.

Symptom description (stress, mood disturbance, anxiety) ii.

Diagnosis by GP iii.

Treatment iv.

Adverse life events noted v.

Medical disorders

symptom severity and GP attendance. Thus a lack of GP attendance is taken to denote mild symptoms even though a claimant may report symptoms that are severe and disabling. There are multiple factors that disrupt the relationship between symptom severity and GP attendance.

Specifically, there are many reasons other than a claimant having mild symptoms that account for a lack of GP consultation post-accident. These include: having a poor relationship with one’s GP, having previous negative or dismissive consultations with the GP, a belief that a GP is not psychologically minded and therefore will have little interest in psychological symptoms, an expectation that a GP’s response to report of psychological symptoms will be to prescribe psychotropic medication, shame and embarrassment about reporting psychological symptoms (particularly relevant in men), not wishing to have psychological symptoms detailed in one’s medical notes, a belief that one’s symptoms are trivial relative to the GP’s other patients and having an independent coping style such that going to one’s GP takes place only as an absolute last resort, reinforced by difficulty getting a GP appointment and also cultural issues.

The above reasons explain why, in many cases, individuals do not consult with their GP and live instead with severe and enduring accident-related symptoms, sometimes years post-accident. Thus although an absence of GP attendance can be viewed as weakening a claimant’s case, there are many reasons why this is not necessarily so.

Why do claimants visit their GP? Individuals typically visit their GP in the immediate aftermath of a significant accident (i.e. within the first 48 hours) to establish any physical injuries and need for appropriate treatment at primary or secondary care levels. They may also express their psychological distress, which the GP may or may not note in his computerised attendance note. At this stage sympathetic listening and reassurance with a review, if necessary, in one to four weeks are the appropriate interventions. Over the next four to 12 weeks, the individual will attend or not attend. These two behaviours need careful interpretation in the medico-legal context as they can occur for several significantly different reasons, some consistent with valid psychological distress, some not. g) Attendance At face value repeated attendance for psychological symptoms (e.g. sleep disturbance, mood variability, anxiety) requiring medication and/or psychological therapy and associated occupational dysfunction requiring certification are consistent with a level of disability. Causation will usually be noted by the GP (e.g. accident, other adverse events related or unrelated to the accident). Most GPs are skilled biographers and will note their patient’s account of other adverse events and where the patient has drawn no link between other events and the index accident this speaks for itself, despite when claimants subsequently recall to the contrary. Claimants are typically more accessible to expressing mood and sleep symptoms (depression) to their family doctor rather than travel-related anxiety and nervousness. The former has historically been more “medicalised” and, in the absence of other rapid psychological interventions, treated with medication, whereas the latter travel anxiety is thought to be “non-medical” and less the province of the overstretched GP.

j) Delayed attendance post-accident Why do claimants delay informing their GP of their psychological symptoms until several months post-accident?

The various possible interpretations include: • Initial precedence of physical pain over psychological distress • Later distress as reaction to unremitting pain and disappointment with lack of recovery • Genuine “delayed” psychological reaction • Litigation factors e.g. discussion with medico-legal experts; waiting for lawyer to arrange medical assessment k) Interpretation of GP attendance notes With the passage of time, an individual’s recall of what they said to the GP many months or years previously becomes less reliable. Claimants are psychologically predisposed (often unconsciously) to the following assumptions: assuming attendance occurred; assuming it occurred “soon after” the index event; and/or assuming no other events or stressors had occurred.

h) Non-attendance Again, at face value, non-attendance post-accident is consistent with low level of disability post-accident. This is especially valid in excluding serious depressive illness and Posttraumatic Stress Disorder (and its related condition, Acute Stress Disorder). By definition, significant occupational dysfunction will have required certification and hence lack of attendance indicates reasonable work adjustment.

However, non-attendance does not preclude any of the following: mild, variable depression; phobic travel anxiety; mild adjustment reaction; and mild work difficulties.

These may or may not concur with what the GP has actually recorded. Concurrence or inconsistencies help clarify ambiguity in medico-legal terms. l) When medical notes say “PTSD” A common finding in psychological reports is for GP and therapy notes to diagnose PTSD but the expert does not.

This apparent anomaly can be explained by a tendency in clinical settings to focus on symptom presentation with much less consideration of the traumatic event itself. Thus if an individual presents with the trauma symptoms of

i) Severity and GP attendance It is often assumed that there is a linear relationship between EXPERT WITNESS JOURNAL

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intrusive thoughts, nightmares, dissociative flashbacks, avoidance behaviours and mood disturbance, a diagnosis of PTSD is frequently made regardless of the nature of the triggering event. In contrast, the medico-legal expert pays greater attention to the nature of the trauma itself. Criterion A of a Posttraumatic Stress Disorder, as defined in DSMIV-TR, states that the triggering event involves, ‘experiencing, witnessing or being confronted by actual or threatened death or serious injury, or at threat to physical integrity of others. Thus it is factual. If this criterion is not met, PTSD should not be diagnosed, irrespective of all the other PTSD criteria being met. Symptoms arising from accidents that are relatively minor therefore, or which posed a low risk of serious injury being sustained, should not be diagnosed as PTSD. Even where serious accidents have been experienced, a diagnosis of PTSD in GP records may be invalid if it is written in the notes within the first month of the accident as PTSD cannot be diagnosed until the symptoms have persisted for over one month.

whether post-accident symptoms are accident-related or wholly unrelated to the index event.

Technical problems with GP records These comprise: 1. Illegibility of handwritten notes 2. Non-sequential notes 3. Notes on both sides of sheets and/or upside down, making frequency and sequence difficult to assess 4. Miniaturising or magnifying of poor quality records 5. Presentation on dark pages 6. Use of short hand 7. Non-dated notes Most GP records and correspondence including that of treating clinicians are there contemporaneously for objective clinical purposes, not for litigation purposes. Their contemporaneity is far less subject to the intrinsic unreliability of recall in an interview months or years after an accident, hence their significant utility to the expert and the court.

Typically, a more reliable descriptive phrase is that of “Acute Stress”, rather than the full diagnostic label.

A robust psychological opinion requires careful and rigorous analysis of GP records, whether the purpose/context be preparation of an assessment report, a joint opinion discussion or a court hearing attendance. In some cases, no GP records will be available. However, where these are in existence and available, the lawyer is best advised to obtain a legible chronology of GP attendance to clarify with the claimant what occurred and to highlight to the expert the “facts” of pre-litigation and post-litigation attendance. The expert can make a significant contribution to the legal process by carefully considering the meaning of different GP attendance records, thus reducing unnecessary ambiguity. The GP meanwhile soldiers on and can make an invaluable contribution with accurate records keeping and clinical observation untainted by lawyer or expert!

Psychological symptoms after road traffic accidents are difficult to communicate in brief notations. Posttraumatic Stress Disorder (PTSD) is sometimes used generically and incorrectly, when it is a specific and complex disorder.

Indeed, in psychiatry, there is a danger of PTSD being devalued by its over-use. In addition to these distinctions being important for a medico-legal context, they are also important for treatment recommendations.

Pre accident depression An individual who has experienced and been treated for three discrete episodes of clinical depression is at significant risk of having a fourth. The occurrence of a fourth episode following an index accident will raise a range of opinions.

A de-novo episode precipitated by the index event

Although GP’s are not trained in either psychology or psychiatry and therefore cannot be expected to obtain the detailed types of data that one would typically obtain from a psychologist or a psychiatrist, the GP’s timely and reliable records are invaluable to the court’s deliberations.

1. An episode that, although accelerated by the event, was likely to occur at some time anyway 2. An episode that, but for the index event, probably would have occurred anyway (being the fourth of a series of depressive episodes).

Although GP’s are not trained in either psychology or psychiatry and therefore cannot be expected to obtain the detailed types of data that one would typically obtain from a psychologist or a psychiatrist, the GP’s timely and reliable records are invaluable to the court’s deliberations.

This discussion applies equally to other psychological states such as anxiety.

The flow of attendance to a GP may be consistent with a tendency to: • “Somatise” distress into physical symptoms • Over-emphasise, magnify or exaggerate pain • Anxious/avoidant responses to stressful situations • Negative or angry responses to conflictual situations

Specific medical-legal issues in child assessment Six issues are worthy of mention for the lawyer considering the need for a psychological assessment of a child who has recently been involved in an accident.

1. A psychological assessment should be thorough and comprehensive using a structured approach which results in a “multi-axial” summary which explicitly cites: • A diagnosis (if present) using DSM-5 or ICD 10 categories; • Predisposing or pre-existing psychological or social factors;

The concept of the “egg shell skull” is widely used to decide whether or not the psychological condition would have occurred, taking into account the claimant’s personality or coping-style. Again, rigorous analysis of what is contained in the GP attendance notes, both immediately prior to and immediately after the index event, allows an opinion as to EXPERT WITNESS JOURNAL

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• •

Attribution of symptoms to index accident; Prognosis and need for treatment.

develop their own notions of what ‘certainty’ means in theory and practice in this context.

The concept of ‘certainty’ The court need to demonstrate that expert opinion rests upon a properly laid evidential foundation (6) which can withstand cross examination to ‘discover the truth’. The use of a second expert (defendant) and the Joint Opinion process is used to buttress, impugn or confirm the legitimacy of an opinion. Phrases typically used to represent levels of evidential certainty include: ‘on the balance of probability’, or ‘reasonable degree of certainty’.

2. This assessment should be carried out in a manner which reassures the child and parent(s) and effectively manages any distress inherent in the process of revisiting accidentrelated experiences. The process from initial correspondence, to interview procedure and final briefing of family should be seen by the family as helpful and non-intrusive.

3. Instructions whether they originate from the claimant’s or defendant’s solicitor or joint instructions should be clearly explained to the parents by both the instructing solicitor and then the instructed psychologist to allay any fears of the interview process itself being unnerving for the child (or parent).

The concept of ‘certainty’ in expert deliberations is explored, in order to help experts clarify the quality of their opinion with ‘true conviction as opposed to vaguely understood incantations’ (7).

4. The process from instruction of expert to receipt of report should be short and typically of the order of six to eight weeks. This is not only to meet demanding legal timescales but also to keep family anxieties to a minimum and to provide advice, if and where appropriate, as soon as possible.

In my experience undertaking extensive medico legal assessments in Personal Injury clinics, the typical areas of their medico-legal work which caused most uncertainty include both cognitive processes (e.g. logical, illogical, confusion when faced with inconsistent data) and emotional processes (e.g. unhappy and anxious) about inability to be clear about the task in hand (e.g. diagnosis). In my view, the top 13 causes of uncertainty were: 1. Inconsistency between sources of data (e.g. self report/GP records)

5. In child cases, malingering, total invention of symptoms and disability for obvious gain, is uncommon. Inconsistency of data is typically related to parental anxiety and lack of interviewer clarity. Magnification is common and, again, typically attributable to parental anxiety and can be modified sensitively but rapidly by careful questioning and data collection.

7. Unusual symptoms reported (inconsistent with widely understood clusters of symptoms) 8. Magnified or exaggerated symptom self-report.

6. Causation and attribution in child assessment must be in the basis of the available evidence whether clinical or medical record based. The experienced clinician will be aware of and, at times, make explicit the “range of possible opinions” before stating the final (or provisional) opinion which “best fits” the available facts.

9. Borderline symptoms (clinically significant/diagnostic or not) 10. Differential disruption (social/psychological but not occupational disruption) 11. Lack of confirmatory GP attendance history

Children, like adults, experience the stress and trauma of being in a traumatic event such as a road traffic accident. As such, the assessment of such stress should be reliable, thorough and multi method. In undertaking assessment of children, the clinician should make the process as non-threatening as possible for both child and parent and should provide them with reassurance and where appropriate, practical advice on their continuing coping strategies and/or new coping strategies. Finally, the overall assessment should address the medical-legal issue of reliability, truthfulness, causation and attribution in ways which stand scrutiny and debate and which are independent and assist the court in its final decision.

12. Differential diagnosis between clinicians 13. Interpreting unreliable information from claimants 14. Understanding the interaction between pain and mood 15. Proportionality and multiple causality (e.g. two accidents) 16. Effects of litigation-maintaining symptoms 17. Interpreting poor response to therapy 18. Differentiating between different diagnosis I intend to develop a typology of areas of uncertainty in due course but a preliminary model consistent with the above views is shown below: • Diagnosis • Causation • Prognosis • Self-report unreliability • Between-source inconsistency

Managing Uncertainty in Experts: What are the key issues?

Conducting a medico-legal interview and preparing a comprehensive report for the court, consistent with CPR rules and culture, involves a rigorous approach to data collection. Experts are aware of the importance of working with evidential complexity and differential sources of information (claimant self report; medical records; changing course of symptoms over time). As a result of this challenging task, experts in civil proceedings have to EXPERT WITNESS JOURNAL

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Developing or changing my opinion?

In everyday decision-making, individuals tend to initially gather relevant information and formulate an opinion based on that information. They then are open to modifying this opinion when additional information is available.

mation is provided. In this regard it is prudent for experts to clearly document any future information which might require their opinion to be altered such as ‘my opinion is based on the premise/supposition that Mr X leg injury was the consequence of the fall at work, if the court were to have reason to bring this into doubt, my opinion would require amendment’. Secondly, if and when new or additional information is provided, the expert retains the right to consider it and, if appropriate, alter his opinion to accommodate the new information. It is helpful to the court if experts are clear in such circumstances as to the reasons for their altered opinion… such as ‘in light of video evidence / recent research it is my opinion there is credible reason to alter my opinion to include this information.

Thirdly, if the expert is ordered to take part in a joint statement discussion, the aim is to compare and contrast his evidence with that of his opposite number and advise the court of areas of agreement and disagreement, and reasons for the disagreement. It is not a ‘battle of wills’ between the experts with the aim of one expert ‘brow beating’ the other. Emotional forcefulness or, at times, belligerence by one expert does not have a place in this joint opinion process and should be ignored and/or withstood. In such circumstances it is prudent for the expert to take a leadership on the drafting of the joint report and ensure that the basis of the disagreement is clearly articulated, however, it is noted that the introduction of liability for experts may be detrimental to experts being willing to engage in the litigation arena, or worse, to belligerently defend their opinion through fear of litigation. It is likely that ensuring clarity in communicating the experts position is key in mitigating these concerns to ensure the validity of opinion offered. (9) (10).

In litigation, the same situation prevails although with some caveats.

In his blog article ‘The Inconsistency of experts and the failure to apply the Legal Tests’, Giles Eyre, barrister, quotes a recent High Court Case (Pullen v Basildon and Thurrock University Hospitals (8)) EWHC 3134 where an expert who changes his or her opinion is at risk of being found an unreliable expert. He states that a change in opinion needs rational justification, whether it occurs after own side formal questions, conference with counsel or CPR 35-6 questions from the other side. The judge in this case, where one expert altered his view, noted that the court can accommodate a frank change of opinion as long as this is rational, credible and logical and occurs at the earliest opportunity.

In this circumstance, a changed opinion can carry weight in court (Eyre, 2015). However there are dangers! The case of Jones v Kaney (2011) UKSC 13 involved a psychologist (Kaney) acting as an expert witness in a case of a road traffic victim claiming damages for physical and psychological injuries. Kaney diagnosed PTSD, but during a joint statement discussion in November 2005 she conceded ground significantly both in terms of diagnosis severity and also reliability. This resulted in a pre-trial settlement at a lower than expected quantum. In 2009, the claimant (Jones) brought a claim for damages for professional negligence against Kaney for reduced quantum settlement. The supreme court deliberated long and hard about the ‘immunity for experts’ issue. This case resulted in expert witnesses losing their immunity from being sued in negligence if their performance fell well below the standard expected of an expert, their duties and obligations. The supreme court’s conclusions were a landmark ruling, and lead to further professionalising of the expert witness indemnity. It raised the possibility that experts might be discouraged from the expert witness process for fear of facing litigation. The nub of the issue is how and when should an expert reissue, amend or change substantially their opinion. In everyday life, we as individuals may change our opinion when any of the following conditions occur:

Here we see the tension between the initial search for certainty and subsequent need to manage uncertainty.

Researching Intolerance of Uncertainty In addition to eliciting qualitative views from experts about their dilemmas in medico-legal work, I plan to assess with my colleague Katie Newns quantitatively how experts tolerate uncertainty. To begin with, we want to explore whether experts vary in terms of their personality and general intolerance of uncertainty, before then addressing the same variable specifically in their medico-legal practice.

A short form scale based on the Intolerance of Uncertainty scale (11) was developed by Carleton (12) which measures responses to uncertainty, ambiguous situations and the future. The 12 items of the short form are each rated on a 5-point Likert Scale ranging from 1 (not at all characteristic of me) to 5 (entirely characteristic of me). For example, statements included:

1. We learn new information.

2. We hear alternative points of view about the same shared information or new information.

3. We are persuaded by the strength/emotional resilience or forcefulness of an opposing, different opinion.

1. Unforeseen events upset me greatly 2. It frustrates me not having all the information I need

4. We feel uncertain of the merits or thoroughness of our own opinion.

We have adapted this scale (9) to specifically tease out views on uncertainty when undertaking medico-legal work.

For example, statements included: -

Acting as an expert witness is different to ‘everyday life’!

Firstly, an expert analyses available evidence with the proviso about missing information or the possibility that his/her opinion might change if new or additional inforEXPERT WITNESS JOURNAL

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in personal injury cases. CDL. Vancouver Canada.

5. Law Commission (2011) Annual Report 2011-12 HMSO. June.

6. Drogin EY, Commons ML, Gutheil TG, Meyer DJ & Norris DM (2012) Certainty & expert mental health opinions in legal proceedings. Int. J. Law. Psychiatry 35(5-6), 348-553.

7. Drogin EY (2015) Special Issue on New Challenges in Psychology & Law. Int. J. Law & Psychiatry, 42-43. 1-188.

8. Eyre G (2015) Inconsistency of experts and failure to apply the Legal Tests. www.legal-minder.org.

9. Koch HCH & Newns K (2016) Intolerance of uncertainty scale: modification for assessing experts. (Research ongoing).

10. Koch HCH & Thorns T (2016) Change your opinion casually at your peril. Legal Mind Case Commentary. Personal Injury Brief Update Law Journal. July.

11. Freeston M, Rhéaume J, Letarte H, Dugas MJ & Ladouceur R (1994). Why do people worry? Personality & Individual Differences, 17, 791-802.

12. Carleton RN, Norton MA & Asmundson, GJG (2007). Fearing the unknown: A short version of the intolerance of uncertainty scale. Journal of Anxiety Disorders, 21, 105-117.

13. Gill D (2007) Hughes’ outline of modern psychiatry. Wiley.

14. Milchman (2015) Weighing evidence in psychological experts opinion. Paper presented to IALMH conference. Vienna.

15. Vrij A (2000) Detecting Lies and Deceit. Wiley, Chichester

1. Uncertainty keeps me from having confidence in my opinion giving 2. I dislike being take by surprise e.g. new information, part 35 questions We anticipate sampling a group of 25 – 30 experts who regularly undertake medico-legal assessments and aim to report on results in approximately 6 month’s time.

Weighing up evidence and coping with uncertainty There is a broad consensus amongst lawyers and experts that experts should use the scientific method to formulate and test alternative hypotheses, using evidence from multiple sources to seek collaborative or disconfirming evidence (13). Scientific or logical reasoning can identify limitations in evidence, using consistency as the basis for reasoning from evidence to opinion.

The problem with aiming for logical answers is that inconsistency will occur! How should experts deal with case-specific evidence that is inconsistent? Important principles (Milchman, 2015) are: 3. The meaning of inconsistent evidence, no matter how little there is, may diminish the weight of the consistent evidence, no matter how much there is.

The above is a chapter from LEGAL MIND. Hugh Koch has written a brilliant guide to reducing the uncertainty, speculation and ambiguity that many personal injury and medical negligence events contain, so that judgments and decisions may be made with the contribution of valid psychological evidence.

4. An expert opinion has the highest level of validity: a.

When it accounts for consistent and inconsistent evidence. b.

When most of the evidence supports the opinion, no evidence contradicts it, and inconsistent evidence can be explained so that it no longer reasonably calls it into question.

LEGAL MIND places high quality delivery of medico-legal opinion as a central requirement of justice and a civilised society. Hugh Koch combines practical method and highly experienced insight to define the best quality expert opinions on psychological issues.

This ‘Step-Down’ analysis attempts to assess internal validity underpinning an expert’s opinion and considers the relationship between consistent, inconsistent, and contradictory case-specific evidence.

This book should be required reading for all those who provide or rely upon expert evidence as well as those training to be a practitioner in the civil justice field. He offers, throughout this text, good sense and sound advice. Chapters include; Undertanding Psychological Injury, Evidential Certainty, Understanding the Experts, and Understanding Experts.

Crucially, it counteracts claims that expert opinions are based on intuition, are inscrutable, and not subject to rational analysis. As such it makes expert reasoning more transparent (14).

This chapter sets the scene for qualitative and quantitative research we plan for 2016 and beyond. Experts have the skills to manage and tolerate the uncertainty and either use it, like a therapist, to identify problems or inconsistencies in what they are being told or as a sign that additional information or analysis is required. It is anticipated that this research will also have clinical and legal training and CPD implications, for experts, lawyers and barristers, as well as on the postgraduate courses for all three.

ABOUT HUGH KOCH Hugh Koch is a chartered clinical psychologist who has had a varied career working in the NHS as a psychologist, then working as a senior health services general manager of mental health services (Somerset) and medical services (Cheltenham) before setting up his unique medico-legal service in Cheltenham. This now comprises 40 psychologists and one orthopaedic surgeon working in 105 cities and towns in the UK providing the courts with psychological and orthopaedic reports.

He is currently a visiting professor to Stockholm University Law School, and has professional links with law and psychology centres in the UK, North America, Amsterdam and Moscow.

Chapter 7 References: 1. Antony MM & Barlow DH (2002) Handbook of assessment and treatment planning for psychological disorders. Guilford. New York.

2. Gough HG (1957) California psychological inventory manual.

Consulting Psychologists Press. California.

3. Gudjonnsen GH (1997) The Gudjonsson suggestibility scales manual. London, UK: Psychology Press.

4. Murray AL & Jamieson M (2011) A tangled web – credibility

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The book is available from Amazon or by emailing info@expertwitness.co.uk Published by Expert Witness Publishing 2016 35

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Need an Expert Exp pert in Psychiatry Psychiatry y yo orr P Psychology? sychology y gyy? y

We are a well establish We established hed company company,, with a panel of reputable Experts selected for their experience in the field of mental health. Expert iin n Mind Ltd has a strong workin working ng relationship with all panel members, m offering a one stop interface between instr instructing ructing party and Expert.

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Military Claims – Part of Our Duty of Care

by Simon Duffy, BA (Hons), Dip Arch, R.I.B.A, Member of the Expert Witness Institute, Cowan Architects of Care Simon Duffy, Expert Witness at Cowan Architects explores the current climate for military claims and how an understanding of discrete and adaptable design solutions can help our war veterans start a new life in the comfort of their own home. rejected leading to calls that the system could be being abused. Certainly, a Google search on Military Claims produces several pages of website offering legal specialists in the area.

Setting Military Claims in Context According to Help for the Heroes, 750,000 people served as regulars in the British Armed Forces between 1991 and 2014 and recent research suggests that 1 in 11 (some 66,000) of these need help and support, either now or in the future. They will suffer from either or both mental health issue and physical disabilities, often requiring claims for compensation or legal challenges in Court to ensure that their homes are suitably adapted and their caring needs are provided.

The Legal Position Whatever the veracity of some of these claims, the UK’s roles in the Middle East theatres of war and the modern asymmetric nature of warfare have led to an increasing number of Military Veterans who have suffered life changing injury or post traumatic stresses that need our care and attention.

“A man who is good enough to shed his blood for his country is good enough to be given a square deal afterwards”, so said Theodore Roosevelt on the 4thJuly, 1903. This feeling is at the heart of the Military Covenant and the Armed Forces Compensation Scheme.

If you had served in the armed forces and suffered an accident or disease arising out of your service before 1987, you would have been prevented from bringing a claim for damages because of the Crown Proceedings Act. But since 1987, changes to this Act have allowed members of our Armed Forces to pursue a claim against the Ministry of Defence if they have been injured either in the UK or overseas in an accident that was not their fault. There is the complication of ‘combat immunity’ where injuries sustained during an active operation or ongoing combat cannot be claimed but these situations are rarely clear cut.

However, since 2005, when the Armed Service Compensation Scheme was introduced, it is claimed that more than 16,000 military personnel have been paid in excess of £340 million in compensation for injuries sustained on the battlefield and in training. A total of 36,470 compensation claims were made between 2005 and 2012 of which 11,000 were EXPERT WITNESS JOURNAL

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experts that have many years’ experience in designing environments for both physical and mental disability so that they can assess any individual and ensure that their housing needs are met creatively and with empathy.

The Military Covenant The Military Covenant is a term introduced in 2000 to refer to the mutual obligations between the nation and its Armed Forces. Britain has a duty of care to its armed forces and the unspoken pact which existed between society and the military dating back some 400 years was formally codified in this covenant.

Understanding the System At a time when they feel most inadequate and vulnerable, these servicemen and women are then asked to deal with a complex legal system that assesses, decides and allocates funding. The Armed Forces Compensation Scheme can be limited in its application and a civil claim may take much longer to get a result. A critical part of being able to rebuild a life, is to be able to live in a house that is home. It must be practical, functional and above all, an area of comfort and support.

The Military Covenant Soldiers will be called upon to make personal sacrifices – including the ultimate sacrifice – in the service of the Nation. In putting the needs of the Nation and the Army before their own, they forego some of the rights enjoyed by those outside the Armed Forces.

In return, British soldiers must always be able to expect fair treatment, to be valued and respected as individuals, and that they (and their families) will be sustained and rewarded by commensurate terms and conditions of service.

The Role of an Accommodation Expert For the majority of Experts, the assessment of the claimant provides them with the information that they require in order to form an opinion, however the Accommodation Expert has a much more reactive role as their opinion will be formed not only by the claimant and their environment but also the opinions of other experts from the medical, care, occupational therapy and physiotherapy teams as well as the specialists in assistive technology. Anyone who is advising on how best to provide adapted housing for someone who is facing sudden disability, cannot ignore this medical dimension. Often, clever architectural rearrangements can keep them in their own home, but sometimes a new property will be needed.

This mutual obligation forms the Military Covenant between the Nation, the Army and each individual soldier; an unbreakable common bond of identity, loyalty and responsibility which has sustained the Army throughout its history. It has perhaps its greatest manifestation in the annual commemoration of Armistice Day, when the Nation keeps covenant with those who have made the ultimate sacrifice, giving their lives in action.

James Rowley QC, a barrister at Byron Street Chambers, says that ‘In the UK, the MoD has now accepted that, when not directly in combat, it owes a similar duty to that between employer and employee to take care for the health and safety of personnel, covering premises, equipment, personnel, systems of work including supervision and, where appropriate, medical supervision, care and support’.

The typical, and natural, ‘solution’ for wheelchair access may be a bungalow accommodation with a ramped pathway. Sometimes, however, a shortage of single-level, bungalow availability necessitates the need to ‘think outside the box’ for a answer to disability housing. Geographical location compounds this too; in Central London and certain parts of Wales there are no bungalows or single level accommodation and in some coastal towns both the topography and demographics dictate that two storey houses are the only available option.

Accommodation Needs Any member of the Armed Forces is at risk of a wide variety of possibly serious injuries both during training and in the field –brain injury, chest injury, spinal injury, loss of sight, burns /scalds and cold injury. Specialist personnel may be open to an even wider source of potential harm. Military personnel may be discharged with a variety of different traumas that can affect them both mentally and physically.

Whether they are dealing with a Traumatic Brain Injury, Post Traumatic Stress Disorder or loss of limbs, the personal adaptations that they will have to make may seem insurmountable to both them and their families and friends.

It’s not just physical disability that needs to be accommodated as there are plenty of design techniques that can help combat the mental stresses of military life such as PTSD. Such individuals are oversensitised by their training and their condition so that they react very differently to visual, environmental and noise stimuli. Living areas that are open-plan with limited textures, colour palettes and ‘hidden’ areas will provide a more calming influence as will elements of sound attenuation to lessen loud noises.

Sensory outdoor spaces with water features and fragrant plants are also calming.

It’s important that they know that they can trust their advisors to provide sound advice based on experience and understanding of their particular condition.

Cowan Architects has a team of accommodation

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difficult circumstances and to ensure any adaptations do not appear too obvious. We know the importance of the clinical care setting and facilities should be designed to enable any necessary carers to work in an unobstructed environment but discussions with claimants show the importance to them of getting back home and if “home“ feels just like the hospital then it sets back their rehabilitation. One of our overriding design objectives is that guests to the house should not realise immediately that they have come to a home where somebody is disabled. We must provide design solutions that are discrete, adaptable and sensitive to the needs of the entire family.

Interestingly, Cowan Architects is also looking at how Passivhaus Technology may be used in homes to help those where a constant temperature environment is of particular benefit, such as those suffering from the worst cases of Non Freezing Cold Injury (NFCI) where there can be a permanent increased sensitivity to cold and changes in temperature.

What does the Architect need to do?

Initially when we visit the claimant we are formulating an opinion on their spatial needs in order to provide the basis for our recommendations. We would check these space requirements against the size of the current home in order to draw a conclusion on whether or not they are able to stay and convert their current property. Sometimes the current properties are totally unsuitable with little or no hope of extension or adaptation and this means searching for potential future properties which is best done by an architect who understands the living requirements.

It is an unfortunate consequence that sudden disability is a real threat in the military environment.

Whatever the circumstance, a life changing injury or mental trauma can be a hard reality and the dream of coming home, a thought to hang onto. Understanding the specific nature of military injuries and designing a living space that allows Veterans to return to a life approaching normal, is an essential part of their rehabilitation and one that we, as a society, have a duty of care to provide. â–

Having identified a range of properties that have the right potential, the levels of adaptation and extension that they will require need to be assessed, together with and probably most importantly a confident estimate of the costs involved.

Lastly we need to give an assessment of the various annual costs that they will incur in living in a larger and possibly more expensive property. This is an area where the use of Passivhaus Technology might provide an attractive comparison in lowering energy levels and significantly reducing running costs.

Purchase Options There are two equally effective options available to the claimant where the first is to buy a larger house that only requires adaptation and the second is to buy a more modest property that needs both adaptation and extension.

In the first option, the largest part of the cost is being met through the Roberts & Johnstone formula and a quick look at the maths shows that there will always be a shortfall in the sums allowed in the case, which has to be made up from other heads of claim. Since the judgement in Eeles v Cobham Hire Services where periodic payments were formalised, the capital sums available and the room for manoeuvre has been considerably reduced.

In the second option, the cost of purchase is reduced thereby reducing the shortfall whilst the cost of the extension to make up the difference in area is recoverable in full.

Adaptation Options Military claimants can present with an enormous variety of injuries and many will often also involve families in some way. One of the important criteria is to try and maintain a semblance of family life in these EXPERT WITNESS JOURNAL

Above, Accommodation Experts can assess how design adaptations at home can be used for those facing sudden disability 39

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Ten Top Tips for Expert Witnesses in Clinical Negligence Matters

by Heather Beckett, a Barrister, Registered Specialist in Restorative Dentistry and Expert Witness The reason for including each of these “top tips” is because I have seen and continue to see all of the issues they address as a recurring theme, even from the most experienced experts. It’s always worth reviewing your established mode of working.

2. Know the Guidance for Instruction of Experts in civil claims This document, dated August 2014 and produced by the Civil Justice Council, should be familiar to all experts. It is really helpful, encapsulating and explaining as it does both CPR 35 and the associated Practice Direction. However, there is another reason why you should be aware of it: Practice Direction 35 at 3.2 (9) (b) makes it clear that an expert’s report must “contain a statement that the expert is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014”.

1. Know and keep in mind the appropriate legal test for the matter in hand Although as a clinical expert witness you are not expected to be a lawyer, it is important and necessary to know at least the main legal tests for the matter in hand. Failing to do that can mean that the solicitors relying on your report make an unrealistic assessment of the case and formulate an inappropriate pre--action Letter of Claim, or worse still proceed further with the matter and issue proceedings based on an erroneous premise.

The use of the word “must” means just that, yet a surprising number of expert reports still don’t meet the requirement.

Since the report has to contain that statement, it goes without saying that you should make sure you are actually aware of the requirements of Part 35 and the associated Practice Direction. There are stories of barristers cross--examining experts on Part 35 in the light of the signed statement in their report.

Example: Failure to complete appropriately detailed contemporaneous clinical records is a breach of the standard expected of a reasonable clinician. It is also, perhaps unsurprisingly, a breach of a specific standard expected by the various healthcare regulators. However, it does not, in and of itself clearly lead in causation to a patient suffering loss. The test for negligence has three basic stages:

3. Check and check again that you have the appropriate expertise Remember, you may, just may, have to give oral evidence in court. It’s unusual in a clinical negligence case, but it happens. If you step outside your area of expertise you are likely to be found out in cross examination. There is also a risk that you may be reported to your regulator.

i. the alleged tortfeasor must owe a duty of care; ii. they must have breached that duty of care; iii. and (causation) this must have led to the loss alleged.

So suppose someone alleges that they suffered terrible pain following a procedure. They say that they were not told that they would need to take painkillers and given advice as to what they should take. Failing to write up the records does not necessarily mean that the person was not told, nor does it mean that even if they had been told they would not have suffered pain. You, the expert, were not there.

You don’t know what was said. You do know what should be said and what a failure to give that advice could lead to. Failing to write up the records may not assist the treating practitioner in showing that appropriate advice was given but it doesn’t actually in and of itself constitute the cause of the pain.

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Example: An expert was being cross examined about the surgical aspects of dental implant placement. This expert was, indeed, an expert in respect of the restorative aspects of dental implant treatment, but did not personally undertake the surgical aspects of this treatment. His report talked about the surgical aspects. He gave oral evidence about the surgical aspects. The expert on the other side leaned forwards and passed a Post--It note to the cross--examining barrister. The next question was “How many implants have you personally placed?”. The expert’s answer was “Me?”. “Yes, you” came the response, sensing weakness. The expert’s answer: “None”.

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He tried to repair the damage by explaining that he did a lot of planning and had seen a lot of implant surgery, but it was too late. His credibility was severely harmed and that undermined all the evidence that he was otherwise able to provide.

Instead of: “Mr X’s entire attitude to Y’s treatment was appalling.

I always do Z. Mr X’s treatment was woefully inadequate by my standards.”

6. Be as definite as you can Remember that the civil burden of proof is “the balance of probabilities”. Is it more likely than not?

So the barrister in conference or preparing the pleadings really wants to know whether something is “probable” rather than that it is “possible”. It’s a subtle difference that makes all the difference in this context.

Far better to identify the problem yourself early on, tell those that instruct you, explain in your report why it is that you are expert. Your CV as part of your report is your opportunity to do this. Make sure it is appropriate for the task in hand.

4. Don’t tickle it if you are not prepared to tackle it They will come back to you and want more. They will want revisions of your report. The other side will ask Part 35 questions. Instructing solicitors may start to make grumbling noises about wasted costs through having to make applications to the court because of the imminent expiry of deadlines. There are serious sanctions which the court can apply if a party fails to complete an appropriate step on time, including striking out all or part of their case.

Example: The patient suffered toothache. The X--ray shows that there were two very decayed teeth, one upper and one lower on that side of the mouth.

The dentist took the upper tooth out. The patient went on suffering toothache until the lower tooth was taken out. The allegation is that the dentist misdiagnosed the cause of the toothache and so the patient suffered pain for longer than necessary. It is also alleged that the upper tooth was unnecessarily taken out and could have been saved by an ordinary filling.

Is it possible, or probable that the upper tooth could have been saved by an ordinary filling? This may make the difference between the patient being compensated for loss of a tooth and any treatment required to replace it or not. So explain the possibilities and then explain why you think that one of these is more probable. If it is not possible to do this, say so and say why.

So make sure when accepting instructions that you have time to do the work and do it thoroughly and to a good standard. Always bear in mind that once you have started, you will have to stick with the case if it progresses. Occasionally cases take many years with a new task seemingly popping up out of the blue.

If you are going to have to take a bit longer than you thought to complete some work, let the instructing solicitors know. Asking for an extension of time before a deadline has expired is significantly more straightforward in the majority of circumstances than trying to do so retrospectively.

7. Explain why you are of your opinion a. Set out the facts. b. Set out the range of accepted reasonable opinions, as appropriate..

However, you may also have to be prepared to burn the midnight oil to get work done.

c. Explain the source of the range of opinions, for example, general undergraduate training at the appropriate time (not when you or the practitioner were undergraduates, but when the treatment under consideration took place), or relevant guidelines from reputable sources, or textbooks. Mainstream journal publications can be helpful. Obscure scientific papers are not particularly helpful if they would not easily be within the knowledge of a reasonable relevant practitioner. Also, beware of trying to find a published paper to support your opinion which does not stand up to reasonably robust critical appraisal. Your own experience is a reasonable resource on which to draw, but you need to explain that this is the source. It is usually better to have something in addition to your own experience, but of course it is not always possible.

5. Try to avoid using hyperbole Example: “Mr X’s woefully inadequate management of Y”.

Judges can use hyperbole in their determinations.

It adds colour and explanation for their reasoning.

Solicitors use hyperbole when they are writing to the other side. It’s part of the adversarial nature of proceedings in this country.

Experts should stick to the facts, the appropriate standard and whether the facts meet the standard. It assists in showing you are independent and measured, someone whose opinion is to be taken seriously and relied on.

d. Explain why it is that having considered the facts and the range of reasonable opinions, you are of your own opinion.

Example: “Mr X did not do Z. The appropriate standard which Y could have expected is Z because…Therefore in my opinion Mr X fell below the appropriate standard in his treatment of Y”.

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with at the end of the day in relation to the particular case under consideration, but if it is properly reasoned, they are unlikely to criticize you for holding it and they will still take notice of what you say. Failing to do it this way may mean that they don’t understand why they should agree, and also then disregard pretty much everything else you say.

really quite a modest distance away, a day spent writing reports often runs up less than 500 steps.

If nothing else, you will risk putting on weight, never mind the effect on your overall health. You may also become less productive. Don’t let that happen.

10. Always remain independent It is your duty as an expert if you are writing reports addressed to the court. You sign the Declaration and Statement of Truth at the end of your report. Everyone knows this. Yet unless you have been instructed as a single joint expert, you will have been instructed by solicitors representing one or other side. Almost “automatically” you will have become either the “Claimant’s expert” or the “Defendant’s expert”. But you are, in reality, neither. Never forget this.

8. Be businesslike It is always sensible to have clear arrangements in place regarding your terms. Solicitors sometimes send letters of instruction that confirm that they will be responsible for the expert’s “reasonable fee”. Do you really want to get into an argument with a solicitor about what is reasonable once you have done a whole lot of work? Do you want to have to give money back to the solicitor if a costs judge, at the end of the day, says that your bill was too high? Do you want solicitors to be telling colleagues that they would never instruct you again because you put in such an outrageously high bill? The overriding objective at CPR 1 requires all litigation to be proportionate. That is clear.

However, it is really, really sensible to have agreed terms in place with the instructing solicitor before starting work. Keep a proper record of the time taken to do the work, even if you have agreed a fixed fee so that you can refer to the time taken not only in your feenote, but if someone challenges you on it later. And make sure you chase up payment within the time agreed. Often it is more fruitful to contact the finance department than the specific instructing fee--earner themselves. Many Medical Reporting Agencies have “payment runs” at specific times of the month. If you leave chasing up an outstanding feenote, it can then, at best, be delayed for up to a month further. Keep on it.

If possible, when writing a report, or taking a view, ask yourself, “What would I be saying about this if I had been instructed by solicitors acting for the other party?” If you can honestly answer that you would say the same, that’s a good indicator of your independence.

It is also a good idea to make it a rule not to agree to carry out treatment for someone on whom you have written a report in a clinical negligence matter.

It underlines your absolute independence. In my experience, people understand why you are declining to take on their case for treatment if you explain it to them and they respect you for it. Just as importantly, so does everybody else.

Heather Beckett is a barrister at 1 Gray’s Inn Square, London with particular interest and expertise in dental negligence claims, underpinned by a long career in dentistry, including 16 years as an NHS Consultant and experience of NHS and private general and specialist referral practice and civil expert witness work.

9. Get some exercise When you have to go out to work, inevitably you do some exercise, however minimal, getting there. If you spend the majority of your time writing medico-legal reports at home you will be surprised at how little exercise you actually do. There is an App on some phones which measures how many steps you take, without the trouble of having to buy a pedometer. Take it from me, whereas it’s pretty easy to get your 10,000 steps a day when walking around hospital corridors or to and from work even if it is

She can be contacted through the clerks at 1 Gray’s inn Square on 0207 405 0001 and is able to take instructions from solicitors and also under the Direct Public Access scheme.

Professor J. Peter A. Lodge

MD FRCS

Recognised internationally as an expert in complex surgery for disorders relating to the liver, gallbladder 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 enquire via my website, www.peterlodge.com Email: peter.lodge@nhs.net Telephone: Secretary +44-(0)113 2065175 Fax: +44-(0)113 2448182 Mobile: +44-(0)7775 825934 Address: HPB and Transplant Unit, St James's University Hospital, Leeds LS9 7TF

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by Alec Samuels

Clive Stafford Smith at the Bond Solon Annual Expert Witness Conference 4 November 2016 Clive Stafford Smith is a British solicitor who specialises civil rights and working against the death penalty in the United States. He has worked to overturn death sentences and helped to found the Louisiana Capital Assistance Centre in New Orleans. He was a founding board member of the Gulf Region Advocacy Centre based in Houston. He has represented more than 100 of the detainees held as enemy combatants since 2002 at the US Guantanamo Bay detention camp and is the Legal Director of the UK branch of Reprieve. Expert witnesses have played a vital part in many to the matters he has been involved in and their opinions matter.

He spoke at our conference in November and achieved the distinction of being the first male speaker not to wear a suit (he denied having one) and the first to use the f word. He spoke passionately and engagingly and suggested to the 450 experts present that the case of the paediatric neuropathologist Dr Waney Squier raised serious issues that affected all experts.

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In March 2016, Dr Squier was struck off the GMC register for her conduct as an expert witness in shaken baby cases. The tribunal found that she “deliberately and dishonestly misled the courts by putting forward theories insufficiently founded upon the evidence, by giving evidence outside your own field of expertise, and by misquoting research and literature so that it appeared to support your 43

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opinion when it did not.” The Court of Appeal overturned the decision on 3 November 2016, just a day before the conference, and ruled that her views were not misleading, but she had failed to work “within the limits of her competence, to be objective and unbiased and pay due regard to the views of other experts”. Mr Justice Mitting said she should be allowed to return to her work her work as a doctor but would not be allowed to act as an expert witness for 3 years.

they are expected to show respect for it? He argued that is bad for the legal system and bad for justice if experts cannot challenge a majority view in court.

Clive opened his address to discuss forensic hair analysis. He has questioned the validity of this field for many years and the FBI has now agreed that the science is not sound and is revisiting the cases affected.

But would this have happened if the FBI and the courts had only listened to the Forensic Hair Analysts?

Clive told the experts present:

But other expert witnesses in controversial areas will wonder if they are doing enough to explain the range of views and give a balanced view of the relevant research. At a time when expert witness budgets are being squeezed and experts are being asked to keep their reports short, many with sympathise with Dr Squier’s argument that her report would be far too long if she had included all of the research.

Again, not everyone will agree with Stafford Smith. If you don’t acknowledge the range of views in your field, can you say that you are fulfilling your role as an independent and objective educator or the court?

Many experts have found ways of acknowledging and respecting the other views whilst challenging them.

‘There is no-one in forensic hair analysis who looks down a microscope all day long and says to him or herself “my life is pointless, what I am doing is total rubbish”… Everyone who is a technician in forensic hair analysis believes in it, obviously, and they were trained to believe in it… When you want to challenge it in a courtroom you can’t find an expert who is an expert in how forensic science means nothing.’

During his presentation, Clive conducted a quick poll.

He asked experts what level of certainty was meant by “beyond reasonable doubt”. The median response was a 95% level of certainty, but the range of responses was very wide.

This raises the possibility that we mean very different things when we say “I’m sure”. When you give an opinion to the court, how sure are you that your opinion is correct? In your professional career, how certain do you have to be to make a decision or diagnosis? If that is different from the level of certainly the court requires to make a judgement, do you state that?

In America, Clive has testified twice about forensic hair analysis: with a scientific background he is allowed to challenge forensic hair analysis even though he has never analysed hair himself. In Britain he would have been prevented from giving evidence outside his area of expertise.

Clive was reassured that the audience’s definition of ‘beyond reasonable doubt’ was higher than the Cambridge Institute of Criminology, who state “It is generally agreed that BRD should be interpreted as a .91 probability”. Too many innocent people are being imprisoned because of this definition of ‘beyond reasonable doubt’, he told the audience.

Many experts would disagree: miscarriages of justice can also occur when an expert strays from their area of expertise. Professor Sir Roy Meadow, a highly respected paediatrician, strayed into interpreting statistics when he told a jury that that the chance of two cases of cot death were one in 73 million in a family like Sally Clark’s. He made a basic and obvious error because he had no training in statistics.

Clive has written extensively in support of Dr Squier.

This included a piece in the Guardian, claiming that the GMC’s case against her was ‘something akin to a re-enactment of the trial of Galileo, precisely four centuries after the original’.

But do experts know when to say “no”? Medical experts especially, deal with overlapping and unclear boundaries every day. Few legal cases can afford an expert in every relevant specialism

Clive warned that the Dr Squier case has eliminated shaken baby critics from the courtroom. In his experience many doctors are critical of shaken baby syndrome but none are now willing to say so in a British courtroom.

‘You are in real jeopardy when going into a British courtroom,’ Clive told the experts. Although critical of the American judicial system, he argued that in one respect it is much better than the British system. In America expert witnesses may give their professional opinion as long as ‘the expert – the expertise – is valid’ even if is a minority view; in Britain an expert must ‘respect the opinion of these other folk and explain what it is’.

How can experts question the mainstream view if EXPERT WITNESS JOURNAL

Sweden is holding a review of shaken baby syndrome; the Los Angeles District Attorney has instituted a process where their number one question of wrongful convictions is shaken baby syndrome. Clive 44

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Stafford Smith believes that shaken baby syndrome is unsound.

Dr Ian Starke

Consultant Physician in Stroke Medicine, Medicine for the Elderly and General Medicine

When orthodoxies are not questioned and when critics are not represented then wrongful convictions will occur, he warned. Expert witnesses play an important role in court. Clive’s presentation showed that there is still disagreement about what that role should be.

MSc, MD, FRCP (Lond), FRCP (Edin)

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

Dr Starke undertakes expert examinations and reports for fitness to practise and medical negligence cases in stroke medicine, geriatric medicine and general medicine.

Mark Solon 21 December 2016 Mark Solon | Chairman Wilmington Legal Wilmington plc | 6-14 Underwood Street London United Kingdom N1 7JQ Office: +44(0)207 324 2323 E mail: mark.solon@wilmingtonplc.com Website: www.wilmingtonplc.com

He provides expert examinations and reports for solicitors, 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

Need an expert fast call our free searchline in 0161 834 0017

Dr Gordon Williams Consultant Cardiologist MB BCh FRCP FACC Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT Tel: Fax: Mob:

0113 218 5943 0113 218 5987 07702 550 758

Email: sandra.ellerbeck@spirehealthcare.com Member British Cardiac Society Consultant Cardiologist at Yorkshire Heart Centre, Leeds General Infirmary and York Teaching Hospitals NHS Trust, involving all aspects of congenital and acquired cardiology, the management thereof and invasive and non-invasive diagnostic procedures.

Civil aviation approved cardiologist.

Medico-legal expertise in Invasive and non-invasive investigations, Diagnostic techniques, Coronary artery disease, Hypertension, Heart failure, Congenital heart disease, Sudden cardiac death screening and General cardiology.

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Concurrent Evidence

by Alec Samuels The instructed expert will rarely need to appear at trial. Along the line the case will be withdrawn or conceded or settled. The expert may have made his report; he may have been in contact with his opposite number; there may have been a meeting of experts; there may have been a joint report; but in the event the case did not come to trial. If the case did come to trial the traditional procedure was probably followed.

The expert called by the claimant was examined in chief by counsel for the claimant, or the expert’s report was tendered, and the joint expert report was available. The expert was cross-examined. The expert perhaps did not find the experience very satisfactory. The cross-examination may have been insinuating, subtly or not so subtly casting aspersions on the integrity, experience, standing and competence of the expert; or aggressive, challenging everything, and perhaps not in a very well-informed manner. The counsel may not have appeared to be too well briefed, not too well acquainted with the subject matter, not too well prepared, and constantly needing to refer to his solicitor and his expert. The judge might also have been getting “tetchy”. When the expert for the claimant has left the witness box there may have been an interval of hours, or days or even weeks before the same procedure was followed with the expert from the other side. Although the lawyers believe that the adversarial system is the best method for eliciting the truth of the matter the expert may feel uncomfortable, trapped in a system not compatible with his scientific methods, such that he was not able to give of his best. The artificiality of the process seems to him to be alien to his professional approach to the resolution of difficulties and the search for the scientific truth. The lawyers are very much in control of the system, practising in their customary forensic environment, namely the court.

So a different and comparatively new system of the giving of evidence by the experts is beginning to EXPERT WITNESS JOURNAL

emerge, namely concurrent evidence (sometimes unhelpfully called “hot-tubbing”), encouraged and commended by the Civil Justice Council.1 Concurrent evidence is commonly used in arbitration, and is familiar in specialist areas such as those tried in the Technical and Construction Court TCC. The concept behind concurrent evidence is that the two experts should give their evidence concurrently, together, simultaneously, preferably sat side by side at a table in front of the judge, with space for their laptop and materials. The questioning at the trial will probably be led by the judge, taking the evidence issue by issue, probably using the joint expert report as a basis, and putting the same or very similar questions to each of the experts in turn.

The judge is likely to appear to be, and in fact to be, less aggressive or less hostile than counsel, though no doubt he will be “searching”. The independent, impartial and objective judge will show appropriate respect to the independent, impartial and objective experts. The experts are usually permitted or encouraged to question each other, in an orderly manner, and the process will take on more of a dialogue or conversation. The experts will feel more comfortable, more at ease. A good judge can be and should be both flexible and penetrating in his questioning, and in the conduct of the entire process. The experts should feel less defensive, more willing to engage in open discussion, more ready to agree. The crucial issues for the experts may more readily be identified, helping all concerned, making the respective tasks of the respective experts and the lawyers and the judge easier. The quality of the evidence should be better. As the experts move closer together in their opinions on the main issues so the opportunities for settlement or a sound decision improve.

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As experience is gained, the maximum flexibility should be built into the system. As always, careful co-operative and timely case management promotes the effective trial. The judge may order concurrent evidence but still prefer counsel to lead the questioning. He has to play a much more interventionist role, and must beware of the risk of subconsciously falling into his former role as a forceful advocate for a party.

He may be willing for the experts to engage in mutual dialogue, or he may prefer all the questions and answers to follow the more traditional process and he may require all answers to be addressed to him. In concurrent evidence the uncontrolled expert witness could wander off into irrelevant matters, at least legally irrelevant matters.

Unsuitable There are situations where concurrent evidence would appear not to be suitable. Goodwill must be a feature of successful concurrent evidence. Therefore if a party wishes to challenge the integrity or credibility of the opposing expert, the challenge is more than a professional difference of expert opinion, there is animosity in the air, then much better to follow the normal traditional process, keeping the expert witnesses well apart. The matter should be raised pre-trial.

Where the expert does not have the character and personality and reputation of the expert on the other side, or does not readily engage in inter-expert dialogue, then concurrent evidence is to be avoided if possible.

Whether or not concurrent evidence for the experts is followed in any particular case is for the judge.

Ideally the judge should be experienced and well disposed to the process, the parties should agree, and the forward preparation of some sort of agreed agenda will prove to be useful, based on a clearly written joint expert report. For the judge to impose the process upon the lawyers acting for the parties, and without giving good reasons, would probably be unwise, as friendly co-operation greatly smooths the process.

Cross-examination The lawyers, especially the advocates, or some of them, are sceptical or dislike or are positively hostile to concurrent evidence. The advocate likes to control the conduct and the presentation of his case, and likes to control his witnesses, so as to ensure the most favourable impact upon the judge. If the judge has led the questioning, and the experts have engaged in forensic dialogue, further cross-examination may have little point, the opportunity to undermine the expert for the other side has greatly diminished.

In order to make concurrent evidence a success the judge will need to be familiar with the relevant area of the law and the special field of expert knowledge, e.g. construction or shipping or accountancy or personal injuries, so an appropriate judge should be allocated to the case by the listing officer, and preferably a judge able and willing to participate in the concurrent process. Also careful and thorough pre-trial preparation by the judge will be essential. He cannot come “cold” to concurrent evidence.

Encourage the expert In view of the difficulty in finding an expert to accept instructions, perhaps because of dislike of the traditional process and a feeling that the system does not enable him to give of his best, as well as the fee problem, the emerging concurrent evidence system may encourage the reluctant expert to accept instructions and to feel that he can comfortably give of his best.

Costs All the indications are that the time taken for the experts to give their evidence is shorter under the concurrent system than the traditional system. The shorter the time taken in the court room the less the direct and indirect costs. Though the longer the time taken in pre-trial preparation the more the direct and indirect costs in the pre-trial process. So concurrent evidence may be better evidence, but compared with the traditional procedure may in fact be cost neutral.

The modern online digital court 2 As the modern on-line digital court envelops the legal system the participants in the trial will no longer need to meet together in the court room. Skype or skype model 2 will enable the judge, counsel, solicitors, witnesses and experts all to remain in their office or home and fully to participate, a process starting in the smaller value claims, up to £25,000, but inevitably in due course covering the larger value claims, where the experts appear. Concurrent evidence will be well suited to the new legal age.

Expert prepared If concurrent evidence is to be followed the expert should be informed at the earliest possible moment so that he may not be taken by surprise and may prepare himself accordingly. He must be prepared to engage in dialogue with the expert on the other side and the judge, and to appreciate when a modification of opinion or a concession is or is not called for by the science of the discipline involved.

References 1 Rule 35, Practice Direction and Guidance Note. Concurrent Expert Evidence and “Hot-tubbing” in English litigation since the Jackson Reforms, Civil Justice Council, 1 August 2016. Changes to the rule, practice direction and guidance are expected in 2007, with a new Information Note for Expert Witnesses. Body of Evidence, Alec Samuels (2016) New Law Journal 16 September 2016 p 21.

2, Civil Courts Structure Review, Lord Justice Briggs, 27 July 2016.

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The Academy of Experts In this issue we focus on The Academy of Experts (TAE). Now located in Gray’s Inn Square in London, TAE was founded in 1987 with the objective of providing, for the first time, a professional body for Experts to establish and promote high objective standards. Although there is representation on the Academy’s Council from the legal profession the majority of the officers, including the Chairman, are practising Experts TAE is run by Experts for Experts and those using them. All applicants to The Academy who wish to become Accredited Practising Expert Witnesses undergo a rigorous vetting procedure to ensure standards of excellence are maintained.

Procedure Rules The optimum timing is as soon as convenient after attending the Foundation Course. Because this course covers the procedures which must be followed, it should be ‘sooner’ rather than ‘later’.

Attendance on the Foundation Course or suitable prior experience is advisable to gain maximum advantage from this course.

Practical Law for Experts This is not a particularly time sensitive course in that it supplements knowledge of a general legal nature and so it can be taken at any time.

The Academy offers a comprehensive range of training programmes to enable members to develop their expert skills, and undertake Continuous Professional Development activity.

Courses range from basic Role and Responsibilities through to the requirements of Procedure Rules and the practice of Giving Evidence. The Academy is also a training and accreditation body for ADR Neutrals, including Mediators, Conciliators and Expert Determiners. It publishes and maintains The Register of Qualified Dispute Resolvers and awards the designatory letters QDR to those achieving the approved standard. Standards are enforced in exactly the same way as for experts.

This course can be of value to you in everyday commercial life as well as for your Expert practice.

Into Court…

There is more than one ‘best’ time for this course.

This course is designed for those starting their Expert careers although everybody benefits from honing their skills.

Into Court... should not normally be undertaken before the Foundation Course or without some other appropriate experience.

The Academy’s training courses for Expert Witnesses cover a wide range of subjects all valuable for the practising Expert Witness from the experienced to the new practitioner. Expert Witness journal takes a look at some of the of courses available at TAE.

You will gain the greatest benefit by attending this course shortly after the Foundation Course and/or as a refresher/confidence builder just before a court or arbitral appearance.

Expert Determination Expert Determination is a form of Alternative Dispute Resolution involving the use of an independent Expert to investigate the referred matters and to give his Determination which is binding on the parties.

Foundation Course This is a two day course before for those who have not undertaken any Expert Witness work before, It would probably be useful to attend this course before you accept instructions.

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Although not strictly an ‘Expert Witness’ training course Expert Determination is included here as it is a valuable adjunct to the other courses.

Details of all the courses available can be viewed on the Academy’s website www.academyofexperts.org which also has information regarding TAE, its work, and membership along with many resources useful to the practising expert; courses are also available as in-house or bespoke courses. ■

This can be undertaken at any time but ideally before accepting an Expert Determination appointment!

The Judicial Committee TAE’s Judicial Committee is chaired by a former Supreme Court Judge, and consists of Lords Justice of Appeal and other Senior Judges from the United Kingdom (including Northern Ireland) and Hong Kong.

The Judicial Committee has been responsible for a number of important documents and guidance notes for experts.

The Judicial Committee’s publications have included: The Model Form of Expert’s Report (as commended by Rt Hon Lord Woolf), Guidance Notes on The Meetings of Experts and Guidance Notes on Contingency Fees for Experts.

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The Expert and the Ultimate Issue

by Alec Samuels The expert witness may give his opinion because his expertise derived from study, qualification, knowledge and experience goes beyond the experience of the jurors, the ordinary men and women who came to court on the Clapham omnibus. His function is to assist the jury to clarify and to understand the technical or complicated or difficult elements in the case as they assess and evaluate the strengths and weaknesses of the presentations by the prosecution and defence, and ultimately determine the issue, guilty or not guilty. The expert gives his opinion so that the jury can form their own opinion and decide accordingly. However, the expert is not entitled to express an opinion on the ultimate issue, that is for the jury and the jury alone. The expert must not be permitted to usurp or supplant the jury. We do not want trial by experts. The danger is that the jury may see an expert as so impressive, persuasive and authoritative that they take his opinion as the unalterable truth, as the answer to the ultimate issue.

They must not think that he has given them the answer and all they need to do is to endorse his opinion.

Identification All of us spend our lives identifying other people, so we do not need expert evidence on that matter.

However, eye witness testimony has been the subject of much scientific research, which may be helpful.

How well do we in fact accurately identify, as opposed to confusing resemblance with identity? We have all been mistaken by the “lookalike�. What should one look out for if claiming accurate identification? In looking at a photograph or CCTV picture what are the relevant features for identification? How about a video, possible disguise and facial mapping evidence?

R v Stockwell (1993) 97 Cr App R 260.

Other forms of identification need expert evidence if in dispute, e.g. blood, DNA, fingerprints, footprints, shoeprints, ear prints, voice, handwriting. The margin of difference in these matters between A and B can so easily be very small and easily mistaken.

Is the confession reliable?

Was the witness telling the truth?

The jury have to decide whether the confession by D, allowed in evidence by the judge, is or is not reliable.

Or whether a witness was or was not telling the truth.

It is not for the expert psychologist to say that the confession was reliable or unreliable, or that the witness was or was not telling the truth. But he can say that D or the witness is suffering from certain personality or psychological or psychiatric problems which in his opinion can lead to certain consequences, such as a propensity to lie, or to be vulnerable to pressure or suggestion or particular circumstances, e.g. when under stress, or under arrest, or in police interrogation, or in the witness box. The expert should not say that D or the witness was lying or was telling the truth. He should say that in his opinion all the indications for the reasons given are that D or the witness was or was not telling the truth. The expert does not assert or decide; he simply gives expert evidence, reasons based on his particular expertise in the matter of psychology of behaviour Pora v R [2015] UKPC 9, paras 27-34.

The duty of the advocates and of the judge is to control the expert witness. The expert must be kept within his expertise and must justify his evidence Meadow v GMC [2006] EWCA Civ 1390, [2007] QB 462. The expert may not be fully aware of the niceties of the law of evidence, nor perhaps should he be expected to be aware. He is a psychologist or psychiatrist or doctor or forensic scientist or engineer or whatever. But he should be conversant with the Criminal Procedure Rules and the essence of his role.

In a blatant case the judge may exclude the evidence as inadmissible. The advocates should carefully phrase the questions so that the answers are confined to the relevant expertise and do not stray into expressing an opinion on responsibility and liability, guilt or innocence. They should not induce the expert to give an answer on the ultimate issue.

In directing the jury the judge must make it clear what is the ultimate issue, what it is that the jury have to decide, and what is the role of the experts, namely to help them decide but not to decide for them. They must consider the expert evidence, but they are not bound by it.

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Child protection Jurors, a number of whom will be parents, are likely to well understand the need to protect children, for example from the horrible pornography that pervades society, often directed at children. However, 50

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be very much a jury question, with reference to normality, the objective approach, because jurors from their own life experience understand capacity for tolerance and self restraint, the desire for revenge, the “slow burn” of a woman in a violent or oppressive relationship. But there appears to be a subjective element in that the circumstances of D have to be considered. So it is possible to bring expert psychological evidence to say that as a result of examination of the circumstances the indications are that for reasons of mental illness or traumatic experience or low intelligence or whatever D suffered from a very low capacity for tolerance and self-restraint.

science has researched the effects upon children and expert evidence may be relevant and admissible and cogent DPP v A and BC Chewing Gum Ltd [1968] 1 QB 159, 164A-165B. Criminal negligence The law of criminal negligence is notoriously vague and uncertain R v Adomako [1995] AC 1, R v Misra [2004] EWCA Crim 2375, [2005] 1 Cr App R 21. R v Sellu [2016] EWCA Crim 1716.

In a doctor manslaughter case the medical expert should not say that in his opinion the doctor was criminally negligent. What he can say is that in his opinion D acted contrary to good or proper medical practice, fell short of what is reasonably to be expected of a competent doctor, did not do what any competent doctor could and should and would have done in that situation. Drawing upon his qualifications and experience and the literature and his investigations the medical witness will seek to explain why in his opinion D fell short. Depending upon the circumstances, the sort of evidence the medical might give would be:

Diminished responsibility Expert medical evidence, usually given by a forensic psychiatrist or similar expert, is a practical necessity if in a murder case diminished responsibility for manslaughter is to be proved. The defence must prove on the balance of probabilities that D was suffering from abnormality of mental functioning which arose from a recognised medical condition which substantially impaired D’s ability to understand the nature of his conduct, to form a rational judgment or to exercise self-control, and provides an explanation for the killing as a cause or significant contributory factor Homicide Act 1957 s 2 as amended by the Coroners and Justice Act 2009 s 52.

D did not examine the patient, or examine properly, or assess or plan the treatment. D was slow and inadequate throughout. D did not ask for blood tests, or did not examine them. D did not ask for a scan, or examine it. D did not listen to the nurses or the patient or the family. D left the case to an inexperienced junior. D did not consult a colleague. D did not prescribe the appropriate drugs. D did not offer a Caesarean section. D gave the wrong treatment. D was guilty of a serious error of judgment.

The difficulties of application are immediately apparent. The expert does not think or diagnose or treat in these terms at all. The jurors very probably will not have any understanding or experience of abnormality of mental functioning, though they may have direct or indirect experience of mental illness or mental disorder.

The judge will direct the jury on the law, and how to assess and evaluate the expert evidence. It is not for the medical expert to say that D was negligent, or grossly negligent, or reckless, or criminally negligent, but to show where, how and why D fell short, and death of the patient resulted.

The expert must present his report in professional terms. But he must also address the statute, and direct his opinion to the language of the statute, and the extent to which in his opinion the evidence of D’s state of mind does or does not fulfil the requirements of the statute. Words such as substantial, abnormality and impairment appear in the statute. They may or may not be psychiatric words. Nonetheless the psychiatric expert must translate his psychiatric language into layman’s language, ordinary language, as set out in the statute, for the benefit of the jurors. He may need to explain the significance of the medical history and diagnosis of D, of planning a killing, or the manner of the killing, of a brutal killing, of repeated attempts, of repeated killings, whatever may be psychiatrically relevant. Ordinary English words mean what they say, they carry their everyday workaday dictionary meaning. The meaning of a word can be elucidated or explained or interpreted by other words and phrases, and synonyms, and exemplified.

But this process in itself can subtly change the emphasis, change the meaning. Intellectual semantic

Oliver Quick in a small research study found that because of the vagueness of the law the medical experts were confusing the civil law and the criminal law, engaging in subjective perceptions and moral judgments, enjoying the tactical forensic battle, and playing too prominent a role in the trial Expert Evidence and Medical Manslaughter, Oliver Quick (2016) 38 Journal of Law and Society 496-518.

Loss of self-control Loss of self-control is a partial defence to murder, reducing to manslaughter, if a person of D’s sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D Coroners and Justice Act 2009 ss 54-56, R v Clinton [2012] EWCA Crim 261, [2013] QB 1. The test appears to EXPERT WITNESS JOURNAL

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distractions should be avoided. So the expert should ultimately say whether in his opinion there is abnormality, whether there is impairment, and whether the impairment is substantial. Substantial means more than trivial, and less than total. Substantial lies somewhere on the spectrum. But more than trivial is not necessarily substantial, it depends upon the evidence in the case and the professional opinion of the expert, and is usually a matter of degree. Other words such as weighty, serious, significant, appreciable and important might be used, but at the end of the day the vital word is “substantial”.

The jury may or may not accept his opinion. There may be a difference of opinion between the experts.

However, if all the experts agree then the jury should accept that evidence unless they have a very good reason for not doing so.

The role of the judge and jurors The judges are keen to protect the independence and sovereignty of the jury, to curb any undue influence from the expert, and to keep him in his proper place.

The jury must not be tempted to abdicate their responsibility and leave it to the expert. The judge must warn the jury not too readily to accept expert evidence. If the judge feels that the expert is straying beyond his role he may exclude the evidence, as happened to Professor Gudmusson in Pora; or he may be critical of the expert and weaken or even undermine him. The good and controlled expert does not impinge upon the ultimate issue, but he does assist the jury in their principal task, namely to determine or decide the ultimate issue.

In giving his opinion in this way the expert might appear to be giving his opinion on the ultimate issue, and in one sense he is. But this is unavoidable. He is, however, not saying that D is or is not guilty of murder or manslaughter. He is saying that on the evidence in his opinion D fulfils or does not fulfil the statutory requirements. R v Golds [2016] UKSC 61, [2016] 1 WLR 5231, paras 27-42, especially 32, 36, 38, 39, 40, 41, 42.

© Alec Samuels, 2016

Never miss a copy of the Expert Witness Journal by putchasing a subscriotion, receive your copy direct from our printer. Call 0161 834 0017 or email:admin@expertwitness.co.uk

Dr Duncan Dymond MD FRCP FACC FESC

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

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: debbie@drduncandymond.com W: www.drduncandymond.com 110 Harley Street, London, W1G 7JG

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What Has Caused the Recent Surge in Requests for the Removal of Permanent MakeUp and Conventional Tattoos?

by Dawn Cragg MBE. CIDESCO, CIBTAC, CPCP, BASC Expert Witness Tattooing has been around since for centuries. It was Queen Cleopatra from ancient Egypt who had her eyeliner performed in this way, trying out a variety of black substances and various methods of implantation. Nowadays the popularity of tattoos is escalating on an extraordinary scale, so when this happens there are bound to be some regrets, which is why the tattoo removal industry is very much on the increase.

5) To make others aware that you are part of group, sect, or gang. Tear-drops below the eye for example can have several different connotations depending on which eye it is under, whether or not the tattoo is an outline or filled in, etc. These are frequently associated with prison life. Most recipients of these tattoos would not wish to have them removed as it gives them a feeling of power and status.

Firstly, the tattoos that are normally there for life, and for which there is rarely any request for their removal, fit into the following categories:-

So the list above gives an idea of why people want to have a tattoo which they are very happy to keep.

Now we will address the issue of tattoos that people DO want removing, and why.

1) The name of an ex-partner. Not a very good start to a new relationship! These tattoos are usually found on the arms, but can vary from the shoulder, to anywhere along the arm, including the wrist and backs the hands. As an example, a lady in America had a canary tattooed on her left breast. She was a 34a bra size at the time. A few years later and after having several children, and gaining weight, she increased to a 44f. The canary then looked more like an ostrich! Her marrige broke up, and she wished to join a dating site, but wanted the “ostrich” removed before signing up. No-one would do it.

1) The birth, or sadly the death of a child. It is quite usual to have the child's name and date of birth often tattooed on the forearm. Sometimes it can be another close relative or a close friend.

2) A commemorate experience. For example, the name of a holiday resort , perhaps where a honeymoon was spent, or the name of a country far away where they were reunited with relatives that they had not seen for many years, or maybe not at all. The name of a family pet is another common reason for a tattoo.

3) Reaching a milestone in one's life, such as reaching a certain age, or having successfully fulfilled a dream, attending a live performance of their favourite rock star perhaps.

2) Cosmetic tattooing, also called permanent makeup, semi-permanent makeup and micropigmentation.

Clients request removal for this type of tattoo because either the workmanship is poor, the tattoo has changed colour, the style is no longer in date, or maybe their partner doesn't like it. It might also be that since they had their eyebrows tattooed the client changed their hair colour from black to light blonde, or even that they have gone white. Therefore the eyebrows, as tattooed originally, will be too dark.

4) The pink ribbon associated with cancer survivors, or to commemorate the loss of a family or friend through cancer. There are other coloured ribbons which hold some significance to a trauma in a person’s life, or that of family or a close friend. These include yellow, blue, red, green, black and purple to name just a few. I haven’t gone into detail as each of these have several different meanings. There are many other colours that are of significance to some people and which reflect the relevant trauma in their lives.

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3) Having children can make people regret their own tattoos, because they don't want their children to suffer the same social stigma as they may have done.

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Maybe they feel that they are being judged as parents and that this may reflect on how their children are treated at school.

4) Not all employers will accept visible tattoos, and if someone wants a job badly enough, they will try find a method of having it removed. This is likely to be the case where an employee holds an executive position within the company, or even the receptionist whose job it is greet dignitaries and members of the public throughout the day.

5) A tattoo has been misspelled, not very creative, the outline if there is one is blurred, or it looks very amateurish.

6) The tattoo has faded and become blurry.

7) Wanting to look unblemished.

8) The design that seemed like a good idea when younger may look foolish on an older person.

9) It holds memories that are best forgotten.

10) It attracts people that would not be good to associate with.

A tattoo should be considered a lifetime commitment.

There are several methods of removal but all run the risk of scarring, or of creating a ‘reverse’ tattoo. In other words, the removal causes a blanching of the skin. In such cases medical tattooing may then be required to match the surrounding area. This camouflage is achieved by creating the illusion of freckles and thread veins where appropriate.

Other methods of removal include a saline solution and a chemical gel.

Dawn Cragg M.B.E

Sometimes a client is persuaded to have a ‘cover-up’, which usually means a skin-tone pigment tattooed over the original, the results of which are not always aesthetically pleasing to the eye. It should be remembered that what goes on last will wear off first. Therefore this should be considered as a continuing process rather than a one-off procedure.

Expert Witness trained with Bond Solon and accredited with Cardiff University.2004 & updated continually

Areas of expertise Permanent/Semi-Permanent Make-up (Micropigmentation) Eyebrows, Eyeliner, Guy-Liner & Lips Medical Tattooing Areolae, Hair Simulation, and Scar Camouflage

An Asian skin has an increased risk of keloid scarring, which is raised scar tissue over a healed wound. This skin type can also turn darker when subjected to trauma, such as the insertion of a needle during a tattoo. This could be permanent, or may only last for a few weeks. For these reasons, a tattoo removal by any means is not advisable.

Cosmetic Camouflage Creams for those not suitable for tattooing Non-laser Tattoo Removal For Permanent Make-up & Small Tattoos MTEC Limited, 58a Bridgegate, Retford, DN22 7UZ Area of work Nationwide Tel: 01777 860500 Mobile: 07875 498145 Email: dawn@dawncragg.net Website: www.dawncragg.net

To conclude, the caution here is:-‘Think before you Ink’. ■ Dawn Cragg MBE MBE. CIDESCO, CIBTAC, CPCP, BASC Expert Witness EXPERT WITNESS JOURNAL

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Thinking Outside the Box Enabling Development with Trees

by Mark Chester, Cedarwood Tree Care I have been working in the arena of trees and planning for approaching two decades now. Initially, my focus was advising a busy planning department in the Midlands, on the merits or otherwise of development proposals. I found that whilst there will always be proposals where tree retention is straight forward, it is the ones requiring some more specialist attention that presented particularly rewarding developments. I have been leading with this since those early days.

Trees on third-party land can thwart the best plans, and part of my role is to identify when this is going to be an issue. It is a rare occurrance, one I have only encountered on a handful of occasions. The challenge is that, regardless of the merits of the individual tree, when they are owned by a third party, and even more so when they are subject to a Tree Preservation Order, the constraints of such trees need to be fully factored in with an application.

In my experience, third party trees only usually thwart a proposal when they affect access. If someone else owns them and is unwilling for them to be removed, and this is key to the development proceeding, then the journey has ended. Indeed, when it comes to access, ownership isn’t always the determining factor. With one case where I advised, proposals to replace an empty 1930s detached house in several acres was thwarted because the narrow access to the site was bordered by two substantial mature oak trees subject to a Tree Preservation order.

The local authority did not support removal, so the journey (understandably) ended.

There are two elements to start the process with, and they are linked. Whenever I visit a site for the first time, I undertake a feasibility assessment. This is a little like doing a risk assessment. I need to establish at the earliest stage whether the proposals are realistic, whether they are vague or detailed. This links to the tree survey which informs the Tree Constraints Plan (TCP). The TCP identifies the constraints that trees on and within influencing distance of a potential development site present, and the extent of developable land.

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of the company to embrace best practice and new ideas, with ecology being integral to the project.

I did once survey a site where a proposal (possibly speculative) was to build apartments on a parking area. The parking area was surrounded by trees on elevated ground, and the proposals required changes in ground level. This was incompatible with retention of the trees. This commission was intriguing, because there was so much to consider before deciding the proposal was unviable, including whether the local authority was willing to accept the loss of the parking spaces.

There was a desire by the local planning authority to retain trees within the wider site which is also accommodating a residential development. One tree was an overgrown Goat Willow, identified for retention.

When a site contains mature oak trees which need careful management to ensure their long-term future, I do ponder on the merits of an overgrown Goat Willow growing at the side of a gravel track.

However, the presence of a Tree Preservation Order including this tree and the request for a tree report to show how it could be retained made the local authority’s views clear.

I refer to this case because it highlights an important element of the feasibility assessment. My observation was that the proposals would have required the removal of the trees on the adjoining land. In this specific case, the ownership of the trees and the implications of this is not something I explored further. My observation was a statement of fact, not a conclusion that the proposals were unrealistic!

I recognised that the tree needed re-coppicing. Goat Willow can provide a wildlife habit. At this stage, I stepped back from the purely arboricultural role. The area around the tree is to become a storage area and car park. A coppiced Goat Willow in an isolated position on the edge of a car park is limited in the contribution it can make to the setting. Wildlife islands tend to have very limited ecological value, especially if they are small features. They do not tend to become oasis in the desert. Planning tends to operate within a fiveyear time period in terms of conditions being implemented. The management of trees operates within decades and centuries. This is the timescale I work to when I am on a site assessing the issues.

Once the feasibility assessment has been completed, and we are able to confirm access to the site, most other challenges can be overcome, provided one is prepared to explore the options. This is where the Tree Constraints Plan is so valuable. It identifies which are the important trees within (and around) the site. I consider that if a tree is to be retained, and to then to justify the effort of accommodating it, it needs be worth retaining.

For this assessment to be made in a realistic manner, I am finding that applicants who have instructed an experienced arborist are much better placed than those employing someone from a different background, who has subsequently pursued arboriculture. I am finding that those whose first discipline is not arboriculture, such as ecologists, land surveyors and even architects, can be unrealistic in their assessment of trees suited for retention. They can so often be too cautious and seek to retain trees totally unsuited to a development.

I appreciated that the tree represented an asset which, with careful management, could make a greater contribution elsewhere within the site. Being retained in situ, it would be an obstacle for the development to progress around. A pond was to be created within the site for water management purposes, and this would be a much better location for the tree.

There would be the added benefit that the pond is to be subject to a longer-term management plan which would include the Goat Willow. I then need to provide the Method Statement explaining how this idea would come to pass.

It is important to consider both how a tree is at present, and the relationship it will have with the new development. It is as though, not fully understanding this relationship and the merits of the trees involved, those assessing are trying to downplay the effects of the proposal. With one site, where I was involved later in the process once consent had been granted, I was asked to assess trees identified for retention.

Some of these trees were in such a poor condition that the arborist asked to undertake minor pruning refused to climb without a platform to access upper branches.

One of the benefits of 21st century arboriculture, and especially when one is trying to be innovative in seeking solutions enabling both the retention of trees within development settings, and the planting of trees in positions where this would previously not have worked, is the tools the arborist now has access to.

One of these is subterranean infrastructure. It is now possible to create a framework below ground which can accommodate the roots and growing media that trees need to flourish, and also support activity above ground. The completed structure can support good vehicles weighing forty tonnes!

Siltbuster is an engineering firm based in South Wales. Since 2014, they have been working on a relocation project to enable operations to expand. As is often the case with such projects, trees were encountered. I first walked the site in January 2016.

The first thing that I recognised was the commitment EXPERT WITNESS JOURNAL

This technology is proving valuable because it can enable landscaping to be created in settings where this was previously impractical. I call it ‘planting trees in impossible places’. Last year, I was involved with what 56

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should have been a straight forward application. A Midlands engineering company had purchased a piece of abandoned land, ironically from the local authority. The land had becoming a dumping ground, the one merit being several mature Birch trees on the road frontage. Unfortunately, the trees, which had been planted in the 1970s, had received little subsequent management. It was not practical to retain the trees and provide the requirement.

authority’s demands for mixed use design including the provision of sufficient employment facilities. It had previously been a self-sufficient community providing employment for dozens of local people via farming operations. It remains in a derelict state, when it could be undergoing a transformation.

Much of my work focuses on the trees present and their needs. However, for one site where I advised recently, I found myself presenting ideas which transformed the proposal. A community group was working on a project to install a meeting room and separate toilet facilities within the garden of a house previously occupied by the site caretaker. Space was limited and the main tree, a Yew, already had development within the Root Protection Area.

The local authority required each of the trees to be replaced with another tree as part of a landscaping scheme. There was insufficient space to do this within the proposed layout, and the suggestion was presented to reduce the number of parking places being created in order to accommodate all of the replacement trees! By using the subterranean infrastructure approach, I was able to provide a landscape scheme incorporating all of the stipulated trees without losing any parking spaces.

The meeting room was, essentially, a shed, which was to be built off-site and assembled in situ. The toilet was to be built in a brick building. This would involve digging sufficient foundations to support the structure (900mm is generally the minimum requirement). It seemed to me to be more substantial than was needed, requiring disproportionate infrastructure and Tree Protection measures. I suggested a timber structure, which would not need the foundations not material storage etc. The group soon realised that there were added benefits of local costs and that they had skills within to do the work themselves. As for the two metre high Herras fencing usually stipulated, this was not needed either, with lower impact measures being sufficient.

It is important, when dealing with trees on brown field sites, to be realistic about the future of the specific site. One of the questions I ask myself is, ‘what is the alternative?’ Is the current situation sustainable?

When faced with a derelict site needing to be regenerated, and someone willing to invest in it, the arboricultural issues need to be carefully considered.

This is also important when exploring other issues.

One site, which I worked on several years ago, had been home to a hospital and contained some important Victorian architecture as well as excellent specimen trees. Proposals failed to satisfy the local

Above, where a small timber extension is proposed, I recommended using pole and wire fencing rather than the more formal herras fencing be used as it was more in keeping, EXPERT WITNESS JOURNAL

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I sometimes work on sites where others have provided tree surveys complete with retention proposals. When the survey has been done by an arborist, someone for whom this is the first career choice and has worked with trees for some time, the thought process is usually easy to follow, even in one may query some of the conclusions. However, I am finding that those for whom trees is a secondary career, there can be a distinct lack of feel for the situation. There can be a reluctance to recommend trees for removal, even when those present are unsuited for retention.

Principle Consultant

Mark Chester

BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.

Mark has experience in Tree Preservation Orders, boundary disputes, amenity tree valuations, planning permissions and tree works.

This became apparent to me when I was asked to assess trees on a site following consent for a development. A copse of poplars, which provided a mature screen, were identified for retention. As I walked the site and could see the decay and dead wood present on most of the thirty trees, the need for action seemed obvious and evident. The developer appreciated the screening value of these trees, and was cautious to pursue removals. However, I encouraged prompt action, of removal and replacement as a priority, recognizing that the sooner the decision was taken, the sooner the new trees could become established.

It would also be costlier to remove trees with the development completed.

He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases.

Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness."

Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk

Some of the planning applications I help with are for developments in very sensitive sites, such as National Parks. Due to the sensitivities, there can be a tendency for consultees within the process to propose measures aimed at reassuring the specific planning authority of good intentions and the desire to embrace best practice. This sounds good as a principle. However, it can result in recommendations which are impractical.

play is attractive, but the benefit to wildlife is minimal.

The origin of the stock is of little importance in terms of ecology when one of the main wildlife benefits is absent.

As I conclude this journey exploring situations of thinking outside the box, I am going to share a practical example and an observation of a landscape working for the users. I recently produced a tree report for a homeowner seeking to replace some redundant buildings in an acre garden plot with new homes. The individual had already built themselves their dream home, and the new proposal was to build several additional properties over the coming decade.

Normally, Herras fencing would be specified for the Tree Protection function. However, for me, this seemed inappropriate, especially as a feature to last for potentially a decade.

I was working on proposals for a development in Wales when I noticed that the landscape scheme (which I had not commented on previously) included the reassuring statement that all trees and shrubs would be sourced from Welsh nurseries. This sounds like a really sensible idea, and I am a supporter of both sourcing local goods and purchasing from smaller businesses. However, it demonstrated a limited appreciation of the nursery industry.

Provenance is only one element of importance for wildlife and ecology. Some species of trees and shrubs are more suited to providing habitation and food sources for wildlife such as bees and butterflies, regardless of their geographical origins. In addition, a tree being purchased from a nursery in Wales may have originated from the continent, or to have spent some of its life overseas. The suitability of the plant to the setting seemed to me to be of greater importance, and fortunately, the proposal was amended to reflect this reality. For example, Hawthorn is a great native hedging plant. However, the cultivar ‘Paul’s Scarlett’ is sterile, producing a floral display of double flowers rather than focusing on nectar-filled flowers. The disEXPERT WITNESS JOURNAL

I suggested instead that a post and panel fence be installed as the permanent boundary to the property on the edge of the new development. This would frame the homeowner’s dream home and be a more appropriate feature.

Finally, when I design a landscape scheme, one of my priorities is to ensure that it will enhance the setting and be in keeping with the environment post development. It is rare to find a landscape where the addition of carefully chosen plants will not enhance the setting. However, the selection of plants should 58

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reflect the site constraints. A small collection of low growing shrubs can be dwarfed against a large wall.

However, taller growing shrubs again a ground floor window are likely to require on-going maintenance and can easily become unattractive. The images below show the good, the bad and, dare one say, the ugly!

Mr Andrew Munro BSc, CEng, MICE, MCIHT, has over 30 years experience in highways design and construction. He has considerable experience of highway projects ranging from small highway improvements to major infrastructure projects. This experience spans conventional design – bid – build as well as design and build, and early contractor involvement.

He has worked in both the private sector and public sector for both consultants and local authorities.

Most arborists and landscapers will have a list of preferred species of trees and shrubs to be selected for planting schemes. This can be evident when walking around some high streets and seeing an abundance of a specific tree. Someone in Hereford has evidently been fond of the Maidenhair Tree, Gingko biloba as there are numerous specimens in the High Street. They are not a particularly suitable species for this particular environment, being more of a parkland tree. The skill is to ensure that what one is specifying is appropriate for each individual setting. This takes discipline. I have to resist planting Beech and Liquidamber too frequently.

Munro Consulting provide expert witness services covering most aspects of highway design and construction, nationwide.

Our areas of expertise include:• Design and maintenance of highways.

• Compliance with standards.

• Scheme assessment, includng options and selection of preferred route.

• Consultancy services • Project management

I have titled this article ‘thinking outside the box’.

There are numerous situations when the lateral thinking of this mindset provides beneficial solutions for the client, and the trees. When it comes to landscaping, one needs to work within the constraints of the landscape presented. Perhaps I may conclude that when working with constraints, one should ‘think inside the box’. For everything else, thinking outside the box may be appropriate! ■

Contact: Tel:

0333 577 0073

Email:

enquiries@munro-consultants.co.uk

Website: www.munro-consultants.co.uk Address: 44 High Street, Chippenham, Ely, CB7 5PR

Forensic Structural Engineer - Chartered Building Surveyor Expertise in;

Failure Of Duty Of Care Structural Engineers Design Failures Collapse Investigations Construction and Material Defects Timber Defects

Contact Details Landline: 01494 727 217 Web: www.abillingham.co.uk

Failure Of Duty Of Care for Building Surveyors Survey Reports Contract Administration Design Failures Schedule of Dilapidations The above are just a few of the related topics that encompass my expert reports.

Mobile: 07961 398 049 E-mail: andrew@abillingham.co.uk

5 Cheyne Close, Amersham, Buckinghamshire HP6 5LT

EXPERT WITNESS JOURNAL

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The Future for ADR in Construction and Engineering

by Martin Burns RICS, Head of ADR Research and Development On 28 November 2016, a group of about 30 influential people from the construction and engineering industry sat around a boardroom table at the Institution of Civil Engineers and discussed the future for dispute resolution. The group was comprised of senior members and personnel from the UK’s foremost professional institutions, along with leaders of major public and private companies, lawyers, academics and contractors. The discussion was chaired by Dr Robert Gaitskel QC of Keating Chambers.

Every person around at the roundtable meeting agreed that the industry needs to reduce the costs of conflict, and deliver major infrastructure and property development projects on time and on budget. A notable product of the discussion was consensus that the future for dispute resolution was actually less dispute resolution, and more dispute avoidance.

Sue Barrett, speaking on behalf of Transport for London, and Stephen Blakey for Network Rail spoke about their experiences and demonstrated that conflict avoidance is already being embraced in a big way.

The Conflict Avoidance Process (CAP), which TfL has embedded into contracts for the refurbishment of the London Underground network since 2015, has resulted in significant financial savings. CAP is also helping to safeguard future business relationships between TfL and main contractors by helping them to avoid getting into adversarial mode, and nipping disagreements in the bud, before they intensify into serious conflicts.

Over the past two decades, the financial costs of disputes in the UK construction industry has been measured in ÂŁ billions. The length of time it takes to resolve disputes through litigation is frequently measured in years, and implications on capital and other resources is immense. Frequent causes of disputes in construction and engineering include: poor contract management, poor communication between employers and contractors, and misaligned priorities.

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room which might otherwise end in acrimony and leave matters heading towards confrontational adjudication, arbitration or litigation.

Issues between TfL and contractors, which might otherwise have developed into long drawn out disputes, requiring adjudication or even litigation, have been resolved quickly and early. Whereas, previously, disagreements might have led to disputes costing an average of £50k to £500k to resolve, matters were now being reconciled at an average of £15k.

The roundtable meeting in November concluded with an agreement to support a Conflict Avoidance Pledge. The substance of the pledge, which will be promoted to across all levels of the construction industry, is a commitment to collaborative working and the use of early intervention techniques to try to resolve differences of opinion before they escalate into full blown disputes.

Most, if not all of those who attended the roundtable discussion in November acknowledged that the future for dispute resolution is about improved communications, collaborative working and embracing techniques that will deal with developing conflict at an early stage.

The aim is to encourage the industry to recognise the importance of embedding conflict avoidance mechanisms into projects with the aim of controlling and managing potential conflict, and preventing the need for formal, adversarial dispute resolution procedures.

Contract forms, such as the NEC and JCT, should not only require parties to act in the spirit of mutual trust and cooperation, they must also include procedures to deal with conflict at an early stage.

The future for dispute resolution in construction and engineering is being driven by a coalition of professional and industry bodies. Together they have committed to informing the industry about the benefits of avoiding disputes and, if they do occur, working with non-adversarial methods to resolve them early and effectively ■

Going forward contracts should include five fundamental features, which enable differences of opinion to be avoided where possible and, when they do occur, to be dealt with effectively.

Contracts should be written in plain, simple English, avoiding legal terms and jargon. The objective should be that a contract should be easy to read and understood by all the people using it. Also, a contract should be designed to be suitable for use on the type of works it is intended to cover, and in the location where the works are to be carried out. A contract should be agreed only after parties have undertook a thorough risk analysis and have agreed on specific tools for managing the project risks in the way which best meets the objectives for the particular project, including early warning procedures and timely conflict management techniques.

The relationship between employer and contractor should encourage and allow the identification of, and communication about, problems early. There should be a joint approach to solving problems quickly and amicably, thus minimising the risk of a major disagreement developing out of a relatively minor event.

Chartered Surveyors with experience in Town and Country Planning

Where there is genuine disagreement over a matter which cannot be resolved, a contract can enable matters to be referred to a quick pronouncement or recommendation by one or more impartial subject matter experts. The purpose of the exercise would be to support and inform discussions between the parties, and enable them to settle their differences promptly. TfL’s use of the CAP process, and a similar approach which has been undertaken by Network Rail, has revealed that the more informed the relevant parties are, the better they can appreciate each other's views. Advice and recommendations by impartial third parties supports discussions in the boardEXPERT WITNESS JOURNAL

We can provide Expert Witness reports in cases involving: x

Residential property values

x

Rural, Farm and Agricultural valuations

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Matrimonial, Probate and other valuations

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Compulsory Purchase valuations

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Residential development values

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Compensation claims

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Freehold valuations

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Capital Gains and Inheritance Tax

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Leasehold valuations

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Redevelopment options and values

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Values of Restrictive Covenants

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Land values

T: 01483 880905 E: tony.jamieson@clarkegammon.co.uk www.clarkegammon.co.uk 4A Quarry Street, Guildford, Surrey, GU1 3TY ^d d ' Ed^ , Zd Z ^hZs zKZ^ s >h Z^ > dd/E'^ h d/KE Z^ 'h/> &KZ K&&/ d͗ Ϭϭϰϴϯ ϴϴϬϵϬϬ

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RICS Expert Witness Training This training will equip experts with the knowledge, practical skills and confidence to prepare for and conduct an expert meeting effectively.

What will you learn?

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The benefits of using an agreed agenda

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Using the topic box model to structure the meeting and as a way to effectively question the other expert

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The reasons for areas of agreement and disagreement

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How to work effectively towards the Joint Statement and how to draft it.

To find out more: t 024 e drstraining@rics.org WINTER 2016/17 AL R Nrics.org/expertwitnesstraining N E S S J O Uw R T W I T8584 E X P E7686 62

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How To Give Evidence Internationally

by Dr Thomas Walford tantly it is for the experts to be familiar with the legal framework that exists as part of their role.

Most countries have their own rules about how court proceedings should be conducted. The establishment of a framework has led to the ability of two parties to present their cases and the available evidence to a judge or jury and for a decision to be reached that is seen as fair and reasonable. These basic premises are true of the common, civil and criminal law systems.

In the lecture, Dr Walford concentrated on the UK, Ikarian Reefer, EU and Singaporean rules as an illustration of the different requirements and also provided information on the sources to search for information on the international requirements that exist. These rules and requirements will be especially important for medics, engineering and financial experts where the same principles tend to exist globally.

The role of the expert witness is to uphold the known principles of their discipline and, with a duty to the court, present their opinions in a balanced, truthful, unbiased and independent way both in writing and person in the court. However given the different rules around the worlds courts, although the principles may be the same the framework they have to abide by can be very different.

Useful Links: International Expert Witness Rules – a summary and Supreme Court Judgement in Kennedy v Cordia [2016] UKSC 6.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication.

The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

“Cross-examination is the greatest legal engine ever invented for the discovery of truth.�

John Henry Wigmore Dr Thomas Walford gave a lecture on “How To Give Evidence Internationally� at the Institution of Chartered Accountants of England and Wales’ (‘ICAEW’) Forensic and Expert Witness Conference, on Tuesday 8 November 2016. In the lecture he focused on the rules in various international courts and also the world accepted principles of the Ikarian Reefer.

These were expounded by Mr. Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Company Limited in 1993 and have remained a founding principle for the activities of experts when involved in the litigation process.

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These rules have been updated by a more recent court case Kennedy v Cordia where judgement was passed down in 2016 and extended the principles to the expert needing to be able to assist the court, the expert needing to demonstrate the knowledge and expertise and there needing to be a reliable body of knowledge for the expert to follow.

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Many major countries have developed their own rules since then and some of the most comprehensive are to be found in the United Kingdom and covered by Civil Procedure Rules 35 and the practice direction and guidance that goes with it. Not only do countries have their own rules but sometimes so do individual judges for their courts. Illustration of one of these was provided in the lecture but most imporEXPERT WITNESS JOURNAL

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Interest Rate Swap Misselling

by Peter Crowley FIA BSc MEWI Managing Director, Windsor Actuarial Consultants Interest rate swap misselling, a topic which has taken up many hours of Court and House of Commons time, is, in essence, simple. A bank misleads its borrowing client into buying what the bank maintains is hedging, but what the bank knows is the opposite. Then, when the extra risks crystallise, the bank pretends it is the borrowers fault – the dodgy swap impairs his ability to refinance elsewhere - and he gets plundered or destroyed by the bank. Regulators were either too ignorant or too conflicted to do anything about it.

These are of three kinds:

The process is as follows. Imagine you are a property developer, and want to develop a new site. You need £5 million for the project. You might borrow this on an overdraft basis, but you would be imprudent to do so. The documentation would be likely to say that the bank could call the funds back at 28 days’ notice, say.

However nice the bank manager was to you, there could come a day when you might offend him, his boss might not like you, or Head Office (or the Bank of England) had decided too much had been lent in that sector – and it needed to be clawed back. If you were eighteen months into your project, without any current liquidity – tough. You might be bankrupted over a very short space of time – especially if refinancing deals had dried up.

1) Pay interest (and capital instalments, if specified), on time 2) Ensure the net income from the business is enough to cover the loan repayments to an adequate extent 3) Ensure the net capital within the business, perhaps restricted, is enough to cover the outstanding loan capital to an adequate extent These requirements are formalised and extend throughout the term of the loan. They may require formal inspection of audited annual accounts, and/ or more frequent assessment. They are often described via mathematical formulae, within the documentation.

One solution to this is to bank with more than one bank – this might solve the “I don’t like your tie – pay us back” syndrome. However, in a financial crisis, banks might well all behave the same. As crises do happen – despite the much-vaunted “end to boom or bust” – the solution is to secure the funds for a defined term – say five or ten years. That way, the bank can’t just ask for the money back, for whatever reason.

One further point – item 1) above is viewed much more seriously than 2) or 3). Clearly, if the most basic of lenders’ requirements is not met, the bank has the right to take things into its own hands. It can then demand immediate repayment, and – remembering the bank knows how feasible that is – if that is not possible, impose onerous sanctions – often under the guise of “support”.

Of course, there are snags. As the bank is locking into you, you may have to pay a higher interest rate. Fair enough, if it avoids the “give it back now” risk. The main issue is that the bank imposes covenant, or rules, which the borrower must obey.

EXPERT WITNESS JOURNAL

What happens then, I quote from Roger Lane-Smith’s excellent autobiography, “A Fork in the Road”: “If the loan runs into choppy waters it normally moves into 64

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it pays out if the net loan interest rate rises above the cap level), and requires payment if the rate falls below a floor (set, obviously, lower than the cap). The net result is that payments remain within the ‘band’ set.

For the structured collar, a lower (ie, more beneficial) cap is offered, but the floor is exacerbated in some way – doubling the penalty, or triggering a higher fixed interest level then payable.

“intensive care” or whatever other soothing and helpful description (“business support”) masks the true summary that the bankers in this section are hard as nails, charging their struggling clients substantial fees for advice, big fees for renewed facilities (even if only short term) and if they have to move to administration then the bank’s lawyers move in and sell off the assets and/or ‘restructure’ the banking facilities.”

The bank would argue that the loan has become an unacceptable risk – that the fees/extra interest are compensation for the higher risk – and, covertly, that the client is likely to be lost, if he manages to ‘escape’ to another bank – so milk him while you can.

The slide pack then ends with the “small print” – detailed clauses absolving the bank from any liability or damage which these products might do.

The description of each of the products above is usually segmented with a single sentence. “Break costs may apply if the product is terminated prematurely”. The borrower may think – “fair enough – if things go wrong, I’ll just end up making higher payments than I otherwise would have. I can live with that”.

All this is part and parcel of borrowing. Certain banks attain reputations of being “harder “than others – these banks may need to offer keener terms to get the business, but word will get round in the market that those who have the broadest smiles often have the sharpest teeth.

Big mistake. The products have a capital significance far in excess of the break cost risk described. The main issue is that the market assesses the derivative continuously, and that it can get negative – and substantially so – very quickly. In other words, it gives you an extra debt – probably invisible to you – and that debt can technically break your loan covenants.

However, what if the “choppy waters” are created by a derivative sale that the client didn’t really want?

That puts things into a wholly different context. First, let’s see how the trick is done.

When applying for the loan, the bank’s relationship manager mentions “interest rate risk”, and the possible introduction of a “hedging” salesman. As the client perceives this as part of the loan underwriting process, he is keen to look prudent, and so agrees a “concern” for “interest rate risk”. The plan is to get him to express a concern about “rates rising”, and ultimately, to express “his” target figure. The relationship manager writes down “client concerned about interest rate rises” on his assessment form.

This is like entering a boxing match when you think the rules are like a tennis match. A tennis match continues until the end of the predetermined “time”, ie, until one player is a certain number of sets ahead.

However, although a boxing match has a fixed maximum time limit, it can get stopped at any time if one contestant’s disadvantage is great enough.

What makes things worse is that your conventional guidance as to the health of your company – your annual accounts and your regular cash flow statements – are now seriously inadequate when it comes to prudently running your business. You, unknowingly, have turned into a part time amateur derivatives speculator – and all you can do is to hope your derivative does not get too negative.

Sometimes the requirement for “hedging” is specified in the loan documentation – this wording is adequately vague to imply that the “hedging” is a bona fide de-risking instrument. In fact, it is almost invariably the opposite.

The most clear sales processes are carried out with the aid of a set of slides. These start off with a personalised introduction slide, naming the salesman (under such a title as “Treasury Advisory”), and citing awards. The main slides are the product descriptions, but, before then, some “scare” slides are introduced, emphasising the volatility of interest rates, and asking questions such as “good time to fix”?

The whole aim is to present as much of the product as “something the customer wanted/specified”, rather than something dobbed onto him by the salesman.

The products are then described – typically, a swap, a collar, and a structured collar. The swap receives regular fixed payments, and pays out floating rate ones, which correspond to the ongoing interest cost of the loan – so in cash flow terms, the net result is that of converting a floating (variable) rate loan to a fixed rate one. The collar offers a cap on the rate paid (ie, EXPERT WITNESS JOURNAL

Up until 2015, accountants did not need to put the current market values of derivatives into the balance sheets of the holders. This meant your company could be technically insolvent without you knowing it

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– and you would be breaking the law. You might see those accounts as “True and Fair – but Useless”.

In short: 1 Capital risk applies to the borrower, personally or in respect of just his company.

However, there’s worse to come.

Every derivatives issuer who incurs risk insists on cash (or similar) deposits to be made to him if the value of the contract is likely to deteriorate. He assesses that likelihood using a formula (usually kept secret), which involves the current levels and volatility of interest rates, and the term of the contract.

2 Collateralisation risk applies to the relationship between him and the lending bank.

3 Creditworthiness risk applies to the lending community as a group.

Of course, all this may come to naught, as the bank has a trump card. It says – “All of this you could have found out by consulting an expert. You signed an agreement to say that you were taking responsibility for assessing the product. If you didn’t understand the risks, you should have taken advice”.

In swap misselling, the collateralisation requirement was replaced by the bank covertly marking down your surplus assets with the intention of utilising these within “Business Support”, if “things went wrong” (and, of course, there was quite a lot more to go wrong now).

The reply, as I see it, is that this statement would apply to 1 and 3 – but could not apply to 2. If you went to the best and most knowledgeable expert in the world, they could not say how your relationship with your bank might transpire. This would be like going to a marriage guidance counsellor before getting married, and asking if your marriage was going to “work” – you would be sent away with a flea in your ear. All future problems are unknown, are idiosyncratic to that relationship itself, and depend on each of the parties’ attitudes to permanent and temporary problems.

That means, dear heart, that if you try to take your borrowing to another bank, they will see you as a far less creditworthy company than you believe you are.

To summarise, there are three extra types of risk the borrower is now exposed: 1 Capital Risk While business loans are not actively traded in any market (apart from loans considered “distressed”, operations such as Isobel or Cerberus involved in bulk purchases), derivatives are – and the capital values can be determined quickly by a practitioner – cap elements, floor elements, and any combinations which form swaps. From 2015, these capital values have to be recognised in formal accounts under the accounting provisions of FRS102.

You are also marrying a partner who has decided to deceive you from day one…

As I opened describing both the House of Commons and the Courts, I finish with an example from each.

Mr Steve Baker, MP, Treasury Select Committee.

Main Chamber Debate, 25 November 2016 – (main areas shown in italics)”

2 Collateralisation Risk By marking down a portion of the borrower’s assets (“hidden line of credit”) behind the borrower’s back, the bank effectively operates the loan on a different basis to the borrower. If interest rates fall (NB – base rate does not have to fall – the middle of the yield curve alone could drop), the borrower loses money – and the bank will immediately see a worse position than the borrower, unless he is pricing his derivative on a frequent basis.

I am very glad to be called to speak in this debate.

I support the motion, and congratulate the hon.

Member for East Lothian (George Kerevan), which whom I serve on the Treasury Committee, not just on securing this debate, but on the excellent work he has done in having the initiative to bring forward the

3 Creditworthiness Risk Due to the above risks, and immediately on the sale, the borrower becomes less creditworthy than he would otherwise. Every bank judges derivatives not only on the current market value, but also on their collateralisation assessment. Although this may vary between banks, the principle is the same. To quote Mr Rainford in the recent Thornbridge hearing: “Mr Rainford in his evidence said that "CEE" stood for "credit equivalent exposure". He said that it was determined by putting it into a model which he described as "a black box that determines an output based on historical market rates, future market rates, the transaction, the type of transaction, the length of the transaction, future volatility."

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constituents whose businesses have been in grave difficulty, and whose lives have been affected, who found that the system failed them.

all-party group on fair business banking. I am glad to be a vice-chair of it, and am grateful to him for the invitation to take that role. I shall make three points: the first is about incentives; the second is about the cost and accessibility of courts; and the third is about complexity.

However well intentioned the authorities were in setting up the system, it has not worked well. We need to find some middle ground between the courts, which are too expensive, complex and require expert evidence—often either unavailable or too expensive to purchase at quality—and the failed semi-formal system. The court system, its inadequacies and the necessity of avoiding it is an old problem—Matthew 5:25 refers to it—and the Government have quite some task ahead of them if they are to deal with this matter.

I have spoken previously in the House about the incentives for bad behaviour, particularly in relation to accounting under the international financial reporting standards, and liability. It is appropriate that the House is so well packed with Scottish National party Members, because I know at least one of them will be glad to hear that I recently attended an event at the Adam Smith Institute, where I helped launch the book “Legislating Instability: Adam Smith, free banking and the financial crisis of 1772”, by Tyler Beck Goodspeed, a brilliant American economist working in the UK. That event may seem irrelevant, but it goes to the heart of what is wrong today. The book shows that the Scottish banking system, characterised as it was by unlimited strict liability among partners, had very good, strong incentives for the owners and staff of banks to behave well. I am grateful to the hon. Members who are nodding in agreement.

As for complexity, even Treasury Committee members, who have been elected by the House to deal with such issues, have found derivatives fabulously complex and difficult to follow. If that is true of those of us who are charged with developing the expertise, it will no doubt be true of the small business people who buy the products. To ensure that similar problems do not reoccur, the Government may want to consider whether small businesses — limits on size is something else to consider—ought to be treated as consumers for regulatory purposes.

Of course, we have come a long way since then, and we are not about to go back to free banking, much as I would wish us to. I shall quote an actuary, whom I do not wish to name, who talked about his work:

I am glad that we are interested in a tribunal system funded by the banks, and that we are open-minded.

Although my hon. Friend the Member for Henley (John Howell) is not in his place, I am grateful that he will be working with the APPG to take things forward.

Finally, I again congratulate the hon. Member for East Lothian. I look forward to making progress, and to hearing what my hon. Friend the Economic Secretary to the Treasury has to say.

“I have examined around 100 individual cases, all of which had the same negative qualities. It is a case of bank salesmen deliberately withholding key information about the risks embedded in the ‘hedging’ products they sell. The term ‘hedging’ is therefore itself misleading.

Overall, the process is disgusting. Banks sold derivative products on top of loans to their clients which those banks knew would render them less creditworthy at the point of sale, and therefore render the business more likely to fail. How this can be described as ‘hedging’ by any financial organisation with a scrap of integrity is beyond me.”

Secondly, from the recent (21 Dec. 2016) judgment from The Hon Mrs Justice Asplin DBE: (Regarding the expert witnesses – key points in italics) Mr Virji (the borrower’s expert) gave his evidence clearly and confidently. In summary, first, in his opinion, an "interest rate hedge" is "a product which if transacted mitigates the adverse consequences of changes in interest rates" and "will reduce the risk of loss should interest rates change." Where the product eliminates some interest rate risk but assumes others, he also considers that "products in which the assumed additional risk cannot be understood,

I agree. The actuary went on to say: “This misleading use of language, unfortunately, is maintained by some of the ‘experts’, some of whom charge large fees for reports to take into the courts. If these reports miss out on key risks, the cases become far weaker, possibly to the point that the case fails. At the best, the bargaining power of victims is much reduced.”

I want to pick up on that experience, because my second point is about the cost and accessibility of the courts system. This points to why our debate is so important. I am sure that the hon. Member for East Lothian has, like me, heard evidence in constituency casework and from the authorities showing that the system that was set up was not adequate to the task in hand. Indeed, I am sure many Members will have EXPERT WITNESS JOURNAL

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monitored, controlled, valued or where they outweigh its risk mitigation element should not be considered as hedges." He gives as examples of such instruments those in which there may be a mis-match in the amount being hedged; a mis-match in the maturity of the hedge when compared to the tenor of the risk that is being hedged (loan repayment date, for example); or where the risk of increasing interest rates is mitigated but other risks are assumed such as the risk of interest rates falling or the risk that the counterparty may at its discretion only increase the amount being hedged or extend or cancel the tenor of the hedge at no cost to itself. He is also of the opinion that an instrument must be judged at the outset and that it must be viewed as a whole rather than dissected into parts.

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.

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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.

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Our clients include interest rate swap victims of all sizes, trustees and sponsors of pension schemes, financial advisers, solicitors and individuals.

As to the First Swap, Mr Virji considered the advantages to be minimal and to be far outweighed by the disadvantages. In any event, he considered the mismatch of maturity of the First Swap and the facility and the cancellation options in RBS's favour to be determinative. In his opinion, therefore, the First Swap was not a hedge. For the same reasons, he considers it to be a speculation rather than a hedge and therefore, not suitable for ‘PAG’. As to the Second Swap, he also concluded that the disadvantages outweighed the advantages and accordingly was not a hedge nor was it suitable. He accepted however, that he had not set out any quantification of those elements.

The same was true in relation to the Third and the Fourth Swaps. Instead, of the Swaps, Mr Virji considers that derivative contracts in the form of caps would have been the appropriate product for ‘PAG’ although he accepts that those products required payment of a premium of somewhere in the region of £200,000.

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party's exposure to risk" and that all the Swaps operated in that way. She also stated that she did not consider that whether an instrument was a hedge or not turned on whether there was an exact match between the Swap's effective and maturity dates and the effective and maturity dates of the loan facilities in question and considered that such mismatching could be part of a hedging strategy and whether it was a hedge would depend upon ‘PAG's’ commercial and investment objectives. She also did not consider that the cancellation and extension features contained in the Swaps had the effect of preventing them from being hedges. She considered that they were plainly hedges during the guaranteed period and that the counterparty had accepted the risk that they would be cancelled; that during the periods between rights of cancellation, which operated on an annual basis, (as in the case of the Second Swap) or after the right of extension passed, the Second and Third Swaps continued to be hedges; that where the cancellation right arose on a quarterly basis after the guaranteed period, the effectiveness of the Swaps as hedges was limited; and that the extension and cancellation rights are the corollary of a reduction in the headline interest rate achieved and part of the overall pricing package of the hedge.

… and for the second expert: Ms Robbins accepted that her expertise was in regulatory compliance in relation to the sales of equity derivatives and rather surprisingly, also accepted that she had never structured, designed or priced a derivative or been involved with interest rate derivatives. She was unable to answer questions about the structuring of interest rate derivatives and quite candidly stated that such questions "would be more appropriate for a derivative trading expert." Her evidence was given haltingly and at times, she was unable to answer the questions put to her. In cross-examination, she also stated that she had been instructed not to compare different derivative products but to consider the Swaps from the perspective of the relevant FSA rules at the time.

She also stated in cross-examination that it would be rare that a bank would assume an advisory relationship and therefore, would be unlikely to discuss break costs or MTM in relation to a derivative with a client and otherwise that there was no obligation to do so.

In her report, Ms Robbins approaches the Swaps from a regulatory perspective. However, she stated that in her opinion a hedge was "a transaction or strategy that in some way contains or mitigates a EXPERT WITNESS JOURNAL

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.

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In fact, she stated that it was not industry practice to do so at the time. She was also of the opinion that the question of whether the advantages outweighed the disadvantages of a swap was irrelevant to the question of whether they were hedges. As to suitability, Ms Robbins set out a detailed consideration of the relevant FSA rules and considered whether personal recommendations or advice was being given. She concluded that the Swaps were appropriate and suitable investment products for ‘PAG.’ In my view, each contract contains elements of both hedging and “uprisking”, and it is dangerous to try and insist on one overall classification or the other.

Rather, it is better to look at both elements separately, and see whether the benefit under the first outweighs the detriment under the second. ■ For further information please read “The WholeTruth” by Peter Crowley How Banks Weaponised Lending, Accountants Monetised Ignorance and We Ended Up With a 1/4% Economy

back into the private sector, and a slow bank recapitalisation driven by a secret and sustained programme of what many would see as extortion and destruction. The penalty has been the withdrawal of demand for borrowing, which continues to decimate the UK’s economic prospects. Without the entrepreneur class willing to borrow from such banks, economic expansion remains at a flat lining level, holding back recovery and restricting tax funds to government.

Interest rate swap misselling, and the group ignorance which surrounds the issue, has caused enormous damage to businesses, their financial soundness, their employees, their prospects, and their very existence, in many cases. The government and its agencies miscalculated badly when they thought the issue could be resolved by a quick “flip” of RBS

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The Rise in Pension Disputes as Pensions Become More Costly and More Complicated

by Chris Parlour - Senior Consultant Punter Southall We have seen a marked increase in the number enquiries for our pension and investment related expert witness services in recent years. This is perhaps unsurprising in what is becoming an increasingly litigious society. However, we strongly suspect that this isn’t the only driver in the uptick in pensions related disputes. The rising cost of pensions has surely been a factor and tipped the balance in favour of action in a proportion of cases where the cost of bringing the claim might otherwise have been considered prohibitive. In addition, the ever increasing complexity of the legislation surrounding pensions presents greater challenges for those working in the industry that will inevitably lead to more mistakes.

press coverage recently, possibly more than ever before. Indeed, with the collapse of British Steel and high street names such as Austin Reed and BHS, pensions are big news at the moment. In the case of BHS, the public spat between Frank Field (the Chair of the Work and Pensions Committee) and former BHS owner Sir Philip Green has given the press plenty of headline grabbing quotes.

Part of the reason for these high profile casualties is the rising cost of pensions, which has led to widening deficits in most UK defined benefit pension schemes.

The main driver of the rising cost is the fall in bond yields, as pensions tend to be measured with reference to the yield on bonds. The graph below shows how the benchmark Bank of England 20 year gilt spot rate has fallen since the early 1990s, from a high of close to 10%, to around 1.3% at the end of August 2016:

The rising cost of pensions One needs only to glance at the news from time to time to realise that pension issues are getting lots of

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indeed. This extends not just to the sponsors and managers of such schemes. It also applies to individuals who might have lost the right to be a member of a defined benefit pension scheme (for example, through unfair dismissal or following a personal injury which has prevented them from working) or who might be entitled to a share of their spouse’s pension benefits on divorce.

The rising complexity of pensions There is a huge amount of legislation surrounding pensions. Much of it is designed to protect the interests of members of defined benefit pension schemes and has its foundations in the Pension Act 2004. However, there have been Pensions Acts in 2007, 2008 and 2014 as well as a Pension Schemes Act in 2015, plus and numerous other tweaks introduced by various Finance Acts. Case law can also have a significant bearing on pensions, from the equalisation of retirement ages arising from the Barber judgement in 1990 to the ruling on QinetiQ in 2012 relating to the indexation of benefits with reference to the increase in the Retail Prices Index. As a result, pensions are more complicated now than ever before.

Combining the effect of falling yields with rising life expectancies, the cost of providing a pension has sky rocketed during the course of the last 25 years. By way of example, in 1992 it might have cost a male aged 65 in normal health somewhere in the region of £10 to secure each £1 per annum of pension (increasing in line with inflation and with an attaching spouse’s pension of 50% of his own payable following his death) with an insurance company. Currently, the corresponding cost would be circa £41, an increase of more than 300%.

The UK vote’s to leave the European Union and the Bank of England’s decision to cut interest rates and increase quantitative easing has been the cause of the latest slump in bond yields. As yields fell, commentators were keen to get their names in the press with ever increasing estimates of how much the deficit across the FTSE 100 index or the FSTE 350 had risen. According to the official PPF 7800 Index, the aggregate deficit of the 5,945 schemes in the index was estimated to have increased to £459.4 billion at the end of August 2016, up from a deficit of £376.8 billion at the end of July 2016. Meanwhile, the press jumped on any FTSE 100 firms and big household names publishing results that showed an increased pension deficit, such as Associated British Foods and John Lewis. There have also been stories about the scheme closures recently announced by ITV and Marks & Spencer and the announcement from Carclo that it could not pay dividend due to its increased pension deficit.

One particular area where the complexity of pensions has grown almost exponentially is the way that individuals are taxed. The introduction of the Lifetime Allowance and the Annual Allowance in 2006 was supposed to simplify the taxation of pensions, when in fact they did anything but that, with all previous allowances and limits grandfathered rather than being swept away. Since then the Government has radically cut these limits to restrict the amount of pension savings that individuals can build up in a tax privileged arrangement. The Lifetime Allowance, initially set at £1.5 million and rising to £1.8 million by 2010, now stands at just £1 million after being cut three times in the last five years. Meanwhile, the Annual Allowance, which reached £255,000 in 2010, was slashed to just £50,000 the following year, cut again to £40,000 in 2014 and then reduced to just £10,000 for the highest earners in 2016. Every time there has been a change to the Lifetime Allowance, savers have been given the opportunity to protect the pension benefits they have already earned against the new lower limit.

There are also complicated rules about the carry forward of past unused annual allowances.

The Bank of England has been criticized in the press for the impact that its monetary policy is having on defined benefit pension schemes. The Bank of England’s own pension scheme is itself extremely well funded as it is invested entirely in gilts, which have increased in value as the yields have fallen. It was widely reported recently that the Bank of England currently contributes a whopping 54.6% of salary to its scheme to fund the benefits that its staff are earning, whilst the employees themselves are not required to pay a penny of their own money into the scheme.

All this publicity makes it hard for anybody to miss the fact that in any dispute involving a pension scheme, the quantum of loss could well be very large EXPERT WITNESS JOURNAL

All of this makes it very difficult for advisors, let alone individuals, to keep track of what the current rules are and how best to minimise their client’s personal tax liability. The complexity of the rules and the constant tinkering with them makes errors or missed opportunities to minimise future tax bills far more likely. Individuals who find themselves with an unexpected tax bill, or with a bigger tax bill than they might have expected, will undoubtedly be a little miffed with their advisors.

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scheme. For smaller claims, it used to be commonplace to use the Ogden tables, which were designed to assist those concerned with calculating lump sum damages for future losses in personal injury and fatal accident cases in the UK. However, the Ogden tables have not been updated since 2011 and are hence considerably out of date and no longer reflect the expected cost of providing pensions in the current low yield environment. The courts therefore tend not to use the Ogden tables anymore, at least not without adjustment. Assessing the value of a lost defined benefit pension therefore requires expert actuarial opinion. Settlements can be measured on a range of basis, from a best estimate of the cost of providing the pension through the scheme to the cost of securing the pension with an insurance company.

HM Revenue & Customs released figures recently which revealed that tax collected from individuals exceeding the lifetime allowance rose 62% to £126 million in the 2015/16 tax year, with 1,539 people exceeding the limit. The expectation is that these figures will rise significantly following the latest reduction to the Lifetime Allowance. Indeed, the Treasury said that reducing the allowance from £1.25 million to £1 million would bring in an extra £300 million in revenue in the first year of the cut.

Investment in another area where claims seem to be more frequent now than historically, which must surely be due in part to the advent of more complicated and opaque investment offerings, such as fiduciary management. The investment of pension scheme assets in a wider range of asset classes, including derivatives and credit default swaps, also offer greater scope for things to go wrong.

Pension sharing on divorce On divorce, any defined benefit pension that the separating couple is entitled to will often be the largest asset outside of the marital home. Historically, pensions used to be shared by splitting the assessed value of the various pension entitlements between the husband and wife. An order would be applied to the pension such that a proportion of its value (typically half) would be used to provide benefit to the spouse instead of the member. It was then up to the scheme to calculate how much pension that value would provide to the spouse. Alternatively the scheme could force the spouse to transfer that value to an alternative pension arrangement.

Professional negligence Pension disputes can arise in a number of ways. When claims are brought by the sponsoring employer and/or the trustees of a defined benefit pension scheme, they are often the result of alleged professional negligence against one or more of the advisers.

As an actuary, I am pleased to say that the incidence of professional negligence claims against actuaries is quite low. However, claims for negligence against law firms and claims for negligence or breach of duty against investment consultants are reasonably common. For example, it might be claimed that the legal advisers made an error in amending the formal documentation governing the operation of the scheme, resulting in the scheme’s members being entitled to more valuable benefits than was ever intended. A “classic” example of this is the failure to properly equalise retirement ages for men and women in the 1990s.

Here again the process has become more complicated, as the courts have decided that pension incomes (or projected pension incomes) can be equalised rather than the value of those incomes. This can include, where applicable, the equalization of state pension and additional state pension benefits (e.g. arising from the state earnings relation pension scheme). It also requires any defined contributions pots to be shared in such a way that they provide the same level of income, allowing for the difference in the ages of the divorcing couple and, if applicable, the state of their health.

Claims against investment consultants might arise where the characteristics of a particular investment do not match the stated objectives of the investor, or the risk of capital loses were not adequately explained to the client. For example, it might be claimed that an investment in so called “cash” fund, where the underlying investments included significant allocations to more risky assets, was not fit for purpose.

Mis-selling After the scandal of the late 1980s and early 1990s, where perhaps as many as two million people were wrongly advised to opt-out of generous defined benefit pension schemes and take out personal pensions, one might be forgiven for thinking that pension misselling claims would be consigned to history. Unfortunately that is far from the truth. Furthermore, the number of people being wrongly advised is sure to increase with the new flexibilities that became available to members of defined contribution arrangements in April 2016.

It has also been reported that two NHS trusts have been offering nurses a higher salary if they opt out of their pension scheme. The East and North Hertfordshire NHS Trust is the latest to make such an

Of course actuaries are not entirely immune from professional negligence claims. However, most of the advice that an actuary gives contains a certain amount of subjective judgement and hence it can be hard to demonstrate that any opinion given falls outside of the acceptable range that a competent actuary would give.

Loss of earnings Loss of future pension rights can form a significant part of any loss of earnings claim, particularly where the individual had access to a defined benefit pension EXPERT WITNESS JOURNAL

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expert report prepared on behalf of the trustees, identifying key flaws in the rationale provided and hence the arguments advanced by the claimants.

Jonathan then attended a meeting with the expert appointed by the claimants and produced a joint note.

offer. Previously, Oxleas NHS Foundation Trust was criticised for this same deal and promptly withdrew it.

The Financial Conduct Authority (FCA) is consulting over updating the methodology used to calculate the levels of redress due in cases of unsuitable advice on transfers from defined benefit pension schemes to personal pensions. The current redress methodology used in the industry and by the Financial Ombudsman Service was originally developed for the Pensions Review of the 1990s. It is intended to put consumers back in the position they would have been in had they stayed in the defined benefit pension scheme but does not achieve that currently.

When the case went to trial in 2009, one of Jonathan’s team attended court during the evidence of the expert appointed by the trustees, to assist the legal team with matters of an actuarial nature arising out of his evidence. Jonathan then attended court to give his evidence.

At the Court of Session in Edinburgh, Lord Hodge found in favour of Scottish Widows, ruling that there was no professional negligence in respect of actuarial advice provided by Scottish Widows. After a similar process, a second case went to trial in 2014, with Lord Doherty also finding in favour of Scottish Widows, albeit in quite different circumstances due to differences in the two claimants’ cases.

Why Punter Southall Jonathan Punter, CEO of the Punter Southall Group, heads up our expert witness services team. Jonathan has a considerable amount of experience providing expert witness services and has a credible track record of giving expert evidence in court. He is highly regarded in the industry, having built up a wealth of knowledge and practical experience during the course of a long and varied career in pensions and investments.

Jonathan is supported by a team of experienced professional staff, made up of pension and investment actuaries. Where appropriate, Jonathan and the team can also draw upon the expertise of other specialists from across the Group’s businesses.

The following is an extract from a press release made

by Scottish Widows shortly after the first judgment was made “The actuarial advice provided to the trustees by Scottish Widows in 1999 was supported by an expert witness, Jonathan Punter of Punter Southall. Lord Hodge could not find any fault in Mr Punter’s assessment that the actuarial advice was within acceptable actuarial practice and noted Mr Punter as giving a convincing defence of the actuarial advice given to the trustees.”

Jonathan and his team have built up a vast amount of experience in the provision of expert witness services spanning a wide variety of issues. The team typically take on approximately ten to twelve instructions every year. The majority of those cases end in some form of settlement, but inevitably a number do result in court proceedings.

Monster Worldwide Inc. case study Jonathan Punter was appointed to provide an expert opinion on the value of a “no detriment” guarantee that an individual claimed he was entitled to; namely, a pension from his employer of no less than the pension he would have received had the defined benefit pension scheme he was a member of continued for the duration of his employment. As it was, the defined benefit scheme was closed and replaced with a defined contribution arrangement. The case was brought after the member sought to take advantage of the claimed guarantee on retirement in April 2006 and his employer disputed the existence of it.

Scottish Widows case study Jonathan Punter was appointed to provide an expert opinion on the validity of allegations made against Scottish Widows and one of their employees. The case centred on advice provided to the trustees of a pension scheme in 1999, which resulted in the surrender of a Scottish Widows deferred annuity contract in favour of a Scottish Widows managed fund. The trustees asserted that the advice provided by the Scheme Actuary and by his employer was inadequate, stemming from a clear conflict of interest. Scottish Widows has advised dozens of sets of trustees in similar terms, so the importance of this “test case” was particularly important to them.

Although the claim followed the individual’s retirement in 2006, it related to events which had taken place in the late 1970s and 1980s. As a result, there were a number of uncertainties on the detail of the claim. In providing his expert opinion, Jonathan presented results on a range of alternative scenarios, capitalising the loss of pension on a range of different bases.

Jonathan found that the Scheme Actuary and indeed Scottish Widows had acted entirely properly.

Jonathan independently verified the quantum of the claim and prepared a formal expert report for the court detailing his findings and his reasoning.

Jonathan also provided detailed comments on the EXPERT WITNESS JOURNAL

The question of whether or not the claimant was entitled to such a guarantee was a legal one and therefore outside of Jonathan’s expertise. The judge decided that the individual did have a right to a “no 73

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detriment” guarantee and the focus then turned to the nature of the guarantee and the value of it.

Whilst the claimant had sought quantum of loss on a measure consistent with the cost of securing the guaranteed level of benefits with an insurance company, the judge ruled that a measure consistent with the statutory accounting basis that Jonathan had put forward was appropriate, which significantly reduced the loss.

In giving his judgment Judge Behrens set out that “Mr Whitney and TMP had the benefit of actuaries for them. Fortunately for me there was a large measure of agreement between them. Furthermore when they gave evidence it was perfectly plain that they were each highly expert and attempting to assist the court. Indeed it heartening to see how often they agreed with each other on points requiring their actuarial expertise.”

Chris Parlour Senior Consultant Punter Southall Chris is a specialist within our expert witness team.

View our new look website here www.expertwitness.co.uk

Top of google searches since 2008 EXPERT WITNESS JOURNAL

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Forensic Science – A Reality Check

by Jo Millington BSc (Hons) MSc PGCert MIABPA, Senior Forensic Scientist, ArroGen Forensics Ltd Forensic Science is the application of scientific methods and techniques to matters under investigation by a court of law and there is absolutely no difference in the way in which forensic science is commissioned on behalf of the Crown to that which is commissioned by the defence. In either case, forensic scientists must work in accordance with the overriding objective, which includes a responsibility to deal with a case efficiently and expeditiously.

required (in order to answer the questions posed by the court) simply cannot be done - because the application for funding is denied, because there is insufficient time to do the work properly or because the data is incomplete. In any event the impact on the criminal justice process should not be underestimated.

The impact of financial challenges on forensic provision in the UK is not a new topic and was recently discussed by the Forensic Science Regulator in her Annual Report: [https://www.gov.uk/government/publications/forensic-science-regulator-annual-report-2016].

Although the onset of these challenges is often attributed to the closure of the national Forensic Science Service in 2012, in reality their foundations pre-date this. Irrespective of the catalyst, the enduring fact is that good, high quality forensic science can be delivered across a range of budgets if fair and appropriate resources are made available and the following conditions are met:

In the current forensic marketplace, forensic science instructed on behalf of any party is becoming increasingly limited because of budget and it is time to ask if the requirement to deliver cases at a proportionate cost has become the overriding objective in forensic investigation.

At ArroGen Forensics, our view is that the appetite to reduce spend is leading to spiralling inefficiencies and tests are being commissioned simply on the basis of price rather than on whether they can provide answers to the questions that are most relevant to the court. Principally these questions focus on the defendant and require an evaluation of the scientific results in the context of the allegation, the defendant’s account and the case circumstances.

1. That the underpinning forensic strategy is relevant and robust. This is optimised when multi-disciplinary expertise is employed as the collective opinion of scientists and practitioners with a broad range of knowledge can provide a comprehensive and contextual view of forensic opportunities.

It is also our experience that questions regarding the science are being posed too late in an investigation: often as the case approaches trial and sometimes are directed solely at those instructed on behalf of the defence. These questions may relate to complex interpretational issues, such as the significance of the raw scientific data in case framework, and often re-analysis of a sample or re-evaluation of the data generated during the original investigation is necessary in order to address the core issues robustly.

2. That all outcomes are subject to a process of quality assurance. This may be delivered against a framework of formal accreditation, such as ISO/IEC 17025, but must include a number of minimum quality requirements regarding, for example, peer review and checks that are commensurate with the risk profile of the test.

The delivery of forensic science in accordance with published standards is a minimum requirement and there is certainly an expectation that scientific results that are relied upon by the court are compliant.

However, the costs associated with the delivery of an ‘accredited process’ are widely misunderstood. This is regrettable because the costs are not insignificant and

The requirement for cost efficiencies in forensic science is not restricted to the Crown, and anyone operating within the framework of the Legal Aid Agency (LAA) will appreciate that there is a growing pressure to reduce cost. This manifests itself in a number of ways, but it can mean that the work that is EXPERT WITNESS JOURNAL

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more commercial pressure than ever before. And the evaluation of forensic DNA evidence is the tip of the iceberg; it sits alongside a burning demand for the collaborative development of standards in many other forensic areas: digital evidence, marks and traces, bloodstain pattern analysis to name a few. It is not difficult to see where the vulnerabilities lie.

ultimately they have a significant impact on the overall cost of the service. The cost of forensic testing is most commonly expressed as an hourly rate. In most cases this is a requirement of the LAA and it has been forced elsewhere through the process of commercialisation. It is typically based on a derivation of costs associated with the test itself - consumables and equipment for example, the practitioner and/or skill level and a proportion of other costs extrapolated from overheads such as accreditation, service delivery and professional development. The resultant rate is often then measured in an apparently arbitrary framework where allowable costs have been capped, because of market or other non-disclosed forces, at a rate that is invariably lower than the actual cost of service. Of course the landscape is further skewed if the Forensic Science Provider artificially reduces their rate in order to be cost-competitive, in which case they will invariably operate at a loss; or if the decision is made to operate in a non-accredited framework, which can reduce cost but undermine quality. We believe that it is time to level the playing field and formally investigate if the actual cost of forensic provision within an accredited quality framework can be achieved in the current market and within the budget available. There is a mounting body of evidence to suggest that it cannot.

Of course, despite the financial challenges, the prospect of a quality failure in forensic science is a truly frightening thing and steps are taken at every opportunity to eliminate the possibility. Risk profiling and the mitigation of risk are an integral part of the forensic process and when quality failures occur, procedures are in place to scrutinise and learn from them. But in order to reinstate and maintain a balance in forensic science provision in the UK, fair and proportionate resources must be made available to those operating across all facets of the Criminal Justice System. Forensic Science Providers must be able to operate a system in which quality is not undermined because it is simply unacceptable to think that the quality of forensic science in the UK is being compromised because of budgetary limitations – isn’t it? ■

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The continuing commercialisation of forensic science in the UK places forensic science and those that practice it in an untenable position and if it is to continue an alternative approach will be necessary. A leaner approach could include the development of a forensic strategy that satisfies the requirements of the Crown and the Defence at the outset of an investigation, although it is probably more realistic to imagine that this could happen when an investigation starts to focus on a possible suspect. A more achievable objective might be to ask that all users of forensic science challenge whether the test that is being considered is fit for purpose – has it been selected because it is cheap or has it been selected because it is best placed to answer the relevant question?

Iceni Forensic are Consultants and Solution innovators operating throughout the UK and worldwide.

Director Neil Longdin has over 22 years police sector experience in crime scene evidence imaging/photography and fingerprint retrieval/visualisation, he offers extensive knowledge providing technical expertise and expert reports.

Take DNA as an example. DNA tests are very good at establishing a link between an item and a possible source. However, increasingly the source of the DNA is not challenged but rather the mechanism by which it got there. As well as a shift change in the types of questions that are being asked of DNA evidence, the associated technology continues to develop and so too our ability to generate DNA profiles from ever decreasing quantities of trace material. The reliable evaluation of the transfer and persistence of DNA is a hot topic and the complexity of the issue, in terms of underpinning research and interpretation of the data, should not be underestimated. There is an urgent requirement for strategic operationallyrelevant research to be performed in this area by institutions that are more fragmented and under EXPERT WITNESS JOURNAL

Services include expertise, consultancy, training and mentoring in the following areas: Crime Scene Photography Photography Forensic Imaging Fingerprint Development Laboratory, including turnkey new build Fingerprint & Footwear Evidence Retrieval & Visualisation Forensic Illustration, 3D and 360°VR Pre-owned Equipment Redeployment Technical Bespoke Training Please don't hesitate contact us to discuss your requirements or project Telephone: +44 (0) 7812 424 195 Email: neil@iceniforensic.co.uk Website: www.iceniforensic.co.uk

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A (Hi-Tech) Letter From America

by Ian Cullimore PhD I have only recently subscribed to The Expert Witness, and it occurred to me that since most of the activity seems to be to do with medical and dental (nothing wrong with that), that you The Readers might like to hear about a slightly different perspective – being a hi-tech expert witness.

After that experience it was many years, indeed almost a couple of decades, before I got involved in any expert witness work again. I had not even thought of seeking any, as I had been extremely busy in my career as a serial hi-tech start-up masochist.

Then one day, sitting in my converted barn office in deepest Herefordshire (no, not Hertfordshire – this is the one with the cider apples and the SAS), I had a phone call out of the blue, with an attorney on the other end of the phone with an American accent, saying he was calling from New York. I thought, “oh no, what have a I done now?!”. But he told me to relax, it was just he'd tracked me down and wondered if I wanted to do some expert witness work in a handheld computer case (defending Hewlett-Packard as it happens in this case).

My background is very much in software and hardware, startups, palmtop computers, PDAs, mobile phones, low power devices, and that sort of thing – and for the last few years now 'IoT', or 'Internet of Things'. Whilst I am generally based in the UK, I have spent much of my life working and living in California's Silicon Valley.

To tell you the truth I never really actively sought out Expert Witness roles. My first encounter was a bit of a baptism of fire. Way way back in 1986 I was working for Psion in London (if you remember them – Sinclair Spectrum games, the Psion Organiser PDA handheld computer, and all that) as one of their early software engineers. Having started there as a games programmer I had been drafted into the small team working on their first PDA product. I recall that I was hanging around the office working on some software bits and bobs when, unexpectedly, in walked Her Majesty's Customs and Excise. Apparently they had just done the country's biggest heroin drugs bust at the time, and the ringleader had been using a Psion Organiser to record some drugs transactions, although deleting the records (or so he thought). I (stupidly?!) piped up “oh of course you know they're probably not really deleted, only flagged as so” and the next thing I knew (well, many months later, having done some computer forensics work) I was up in the dock in Court Number One at the Central Criminal Court – good grief, the Old Bailey of all places – giving evidence. And the next thing I knew, to cap it all, at the end of the trial (with convictions handed down of many years) the story broke big-time and I was being interviewed by the BBC, ITN, and daily newspapers.

Since then I have been involved on and off in a dozen or more cases, mainly in the States, but occasionally for a small but excellent IP law firm Origin in London, representing the likes of ARM, TomTom, and King.com (vs Zynga).

I have been retained variously by quite a few US law firms, in New York, Washington, Boston, San Francisco, Palo Alto, Redwood City and Mountain View (the latter three being in Silicon Valley proper).

So the travel has been fun.

For the record, the law firms have been Proskauer Rose, Fenwick & West, Covington Burling, Morrison Foerster, Fish & Richardson, Hogan Lovells, Cooley, Kenyon & Kenyon (with the wonderful address of 'One Broadway' in New York), as well as Origin and Wilkinson Kimbers in London, just in case any of you recognise the names.

Generally I am retained by the Defendant’s side, but occasionally I end up representing the Plaintiff. Most cases are to do with US patents – infringement and invalidity (or not), with a small number being concerned instead with licencing and copyright issues, or computer forensics.

I admittedly have less experience being involved in expert witness cases in the UK as opposed to the US, but I thought it would be instructive to highlight what I have found to be perhaps some of the differences between the two.

As a scary aside, a few years later a private detective did track me down and would stay parked outside my door at night phoning me, trying to get me to retract my evidence. He did give up eventually.

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For a start, America of course is all about money. The cases in which I have been involved have mainly involved the hi-tech big hitters such as Microsoft, Apple, Samsung, Hewlett-Packard, Texas Instruments, etc.

The money swilling around in these cases – the stakes are very high of course – is (to quote the new Chancellor of the Exchequer) “eye watering”. Fortunately some filters down to the expert witness at the bottom, so it can be quite lucrative (although I admit I am not so au fait with UK rates, apart from my own personal experience). So trickle-down economics does work, sometimes.

from my very first case at the Old Bailey), none of my cases (as yet) has actually gone to trial. I like to think that my reports and depos are so good that they win the case in their own right, but I think that it's more to do with the fact that some ninety-plus percent of cases settle out of court. Nevertheless it does look better on paper for future cases if you actually get to testify, so I would urge you to cross your fingers and hope for the rights of passage of a real trial if you have not done that already.

Another difference I believe is in the process of report writing. In the US the attorneys pretty much write the report for you (there's a lot of legal framework wording that needs to be in place), although you The Expert do provide and write up the real nittygritty of the report (e.g. fine detail about the software and hardware technology). My limited experience with the UK is that the expert writes much more, if not all, of the report.

But then, as one very smart young US patent attorney said to me - “it's all about the money – at least there's nobody on death row or anything like that, so it's not that serious really in the great scheme of things”.

I have found many other differences too. California cases tend to be pretty relaxed, all jeans-and-t-shirts.

The East Coast (Washington, New York, Boston) is lightening up, but it's more 'smart casual' with occasional suits and ties.

So in summary, I am looking forward now to hopefully picking up a few more UK-based cases – if only to cut down on the travel a bit. Although in my case I do fear that there's really not much hi-tech litigation going on outside the States, but I will be happy to be proved wrong. ■

And now for depositions. Definitely extremely intense experiences. I am no lawyer of course, but it seems to me that one of the main differences (and please do correct me if I am wrong) is that in the US it's all about open disclosure and discovery, writing expert reports (and swapping them between the two sides) and then getting deposed on them, rebutting the other side's expert and then getting deposed again. And then maybe going to Court.

Ian Cullimore PhD ian@iancullimore.com UK 07765 232258 US (408) 765 3204

The deposition itself is extremely challenging in my opinion. A must is as much 'prep' as possible with the attorneys, at least a couple of days, practicing responses, and going over your report and other details with a fine tooth comb. The 'depo' itself usually takes place at one or other of the attorney's offices under 'court conditions' – the whole process is videotaped, and a stenographer taps away taking a written account. The maximum an expert is supposed to be questioned for (or may I say, 'interrogated') is I believe seven or seven and a half hours (depending on jurisdiction I think), with breaks in between. In my painful experience the event always lasts at least this long, with my side (unhelpfully for me, in my opinion) often agreeing to an extension of thirty minutes or so 'as long as the other side reciprocates'. All of this means that the depo working day in all tends to run to eleven or more hours, which is pretty exhausting. Well, I guess you get to earn your money.

Dr Ian Cullimore

Software and Hardware Design, Invention and Intellectual Property Expert - PhD, BSc Dr Cullimore is an experienced hi-tech CTO-level person, yet still very hands-on (architecting, coding). He has a vast experience both in the UK and California (Silicon Valley & LA) in companies ranging from small startups to large corporations, and in building and managing software and hardware teams.

He graduated in Mathematics from King's College London, and gained a PhD in Cognitive and Computer Science from the University of Sussex.

He specialises in; IoT, embedded, handhelds, smartphones, mobile, operating systems, device drivers, communications, ultra-low power systems, interfacing to the Cloud. Entrepreneur; start-up and young company specialist. Raised angel and VC rounds. Taken startups to Exit. Comfortable interfacing with the Board, Investors, and sales/marketing/bizdev.

Dr Cullimore is an experienced Patent Expert Witness, (14 cases, 10 Reports written, 4 depositions, 1 court case at trial). Clients have included Motorola, Tom Tom and Microsoft. Main areas covered are copyright infringement, intellectual property and data retrieval.

Dr Cullimore has been providing expert witness evidence since 2005. Notable cases include providing evidence in The Crown v Dye et al (for the Plaintiff); Computer Forensics Expert Witness in Old Bailey (Central Criminal Courts, London).

Fortunately in my cases all my depos so far seem to have gone very well, with my attorneys extremely pleased with it all.

Shirlheath Farmhouse Kingsland, Leominister, Herefordshire HR6 9RJ Area of work: Nationwide and Worldwide Tel: 01568 709 129 Mob: 07765 232258 (UK); USA: (408) 769 3204 Email: ian@iancullimore.com

Now I am not sure I want to end up in court again really, but one annoying thing for me in my 'expert witness career' (as far as my CV goes) is that, apart EXPERT WITNESS JOURNAL

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Forensics Europe Expo Conference 3rd - 4th May 2017 World leading dedicated forensics conference 12:40 13:10 Reclaiming digital forensic triage Conference Theatre Alex Caithness Alex Caithness, Principal Analyst - CCL Forensics 13:10 13:20 Session closing remarks Conference Theatre Peter Sommer Peter Sommer, Head of Digital Forensics - Birmingham City University

Day One, 03 May 2017 09:45 09:55 Opening remarks Conference Theatre Peter Sommer Peter Sommer, Head of Digital Forensics - Birmingham City University 09:55 10:10 Latest information on setting the UK standards on forensic science Conference Theatre Gillian Tully PhD, MCSFS Gillian Tully PhD, MCSFS, Forensic Science Regulator UK - HM Government

13:20 14:20 Lunch and Exhibition - Exhibition Hall 14:20 14:50 Tread Finder, world-leading digital footwear capture in custody suites, automated pattern matching and evidence based crime scene searching to provide real-time intelligence to frontline Conference Theatre Julie Henderson Julie Henderson, SPoC and Open Source Manager - Metropolitan Police

10:10 10:40 The digital investigation of the future challenges and opportunities’ Conference Theatre Giles Herdale Giles Herdale, Programme Director, Digital Intelligence and Investigation Programme, Digital Policing Portfolio - National Police Chiefs Council

14:50 15:20 DigTrace: three-dimensional analysis of footwear traces Conference Theatre DigTrace: three-dimensional analysis of footwear traces Marcin Budka, Rashid Bakirov, Dominika Budka, Matthew R. Bennett Institute for Studies in Landscape and Human Evolution, Faculty of Science and Technology, Bournemouth University, Fern Barrow, Poole, BH12 5BB, UK. Footwear impressions provide an important source of evidence within a range of criminal investigations.

Antti Kurittu Antti Kurittu, Team leader IT crimes investigation Unit - Helsinki Police

10:40 11:10 Changing dynamics - digital media in investigations Conference Theatre Paul Young Paul Young, Crime Adviser, Communications Data and Digital Forensics specialist - Organised Crime Command, National Crime Agency 11:10 11:40 Break - Exhibition Hall 11:40 12:10 ISO17025 - working towards implementing minimum digital forensics standards in policing, opportunities and best practice Conference Theatre John Beckwith John Beckwith, Head of Forensics - Staffordshire Police and project advisor for ISO17025 National Police Chiefs Council EXPERT WITNESS JOURNAL

15:20 15:40 Break - Exhibition Hall 15:40 16:10 An open source digital forensic evidence management system 79

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Conference Theatre Antti Kurittu Antti Kurittu, Team leader IT crimes investigation Unit - Helsinki Police

Lunch and Exhibition - Exhibition Hall 13:15 13:40 The underwater crime scene – forensic search techniques: innovation, opportunities and best practice Conference Theatre Peter Faulding Peter Faulding, Forensic Search and Confined Space Expert

16:10 16:40 The dark side of Bitcoin: Dark marketplaces, stolen identities and ransomware; the threat and what can be done to investigate illicit activity in virtual currency.

Conference Theatre Kevin Beardsley Kevin Beardsley - Eliptic

13:40 14:05 Contamination issues at crime scenes: time for a changeÂ… of clothing?

Conference Theatre Claire Gwinnett Claire Gwinnett, Associate Professor in Forensic and Crime Science Staffordshire University

16:40 16:50 Session closing remarks and End of Conference Day 1 Conference Theatre Peter Sommer Peter Sommer, Head of Digital Forensics - Birmingham City University

14:35 15:00 Break - Exhibition Hall 15:00 15:25 Searching for clues: how a combined approach comprising forensic anthropology, archaeology and geology disciplines can breathe new life into crime scene investigations Carole Davenport Carole Davenport, Forensic Anthropologist - Liverpool John Moores University

17:00 17:30 Forensics Europe Expo closes

Day Two, 04 May 2017 09:15 09:25 Opening remarks Conference Theatre David Hawksworth David Hawksworth, CBE, Mycologist and Environmental Scientist.

Patricia Wiltshire Patricia Wiltshire, Forensic Ecologist, Botanist and Palynologist

15:25 15:55 Forensic mapping of crime scenes using laser technology Conference Theatre Michael Allard Michael Allard, Former Detective - Massachusetts Police Department

09:50 10:15 Proposed standards on forensic medical examination following sexual assault for adults and children Conference Theatre Kim Doyle Kim Doyle - LimeCulture Stephanie Reardon Stephanie Reardon - LimeCulture

15:55 16:20 Wet-Vacuum Forensic DNA Sampling Dramatically Increases Capabilities To Collect Essential DNA Material And Solve More Crime Conference Theatre When investigators are processing a crime scene or reviewing items in the lab for biological evidence, choosing the most effective and appropriate collection method is essential. Common methods typically available include swabbing, cutting, scraping and taping, and these techniques have been the mainstay of forensic DNA collection.

10:40 11:05 Break - Exhibition Hall 11:30 11:55 Fingerprints, the source and beyond - innovative research into the unique composition of fingerprints Conference Theatre Marcel de Puit Marcel de Puit, Forensic Chemist - Netherlands Forensic Institute

16:20 16:30 Closing remarks and end of Forensics Europe Expo Conference - Exhibition Hall Take your seat alongside the professionals shaping the future of forensic science The conference brings together professionals from all fields of forensic science for a two-day meeting exploring recent advances in forensics technology, current issues and how best to resolve them.

11:55 12:20 A touch of glass: development of an innovative glass database Conference Theatre Andrew van Es Andrew van Es, Senior Scientist - Netherlands Forensic Institute

For further information on booking a stand or attending please visit: www.forensicseuroexpo.com

12:20 12:30 Session closing remarks - Conference Theatre

The expert Witness Journal will be distributing free tickets to the Expo in our Spring Issue

12:30 13:15 EXPERT WITNESS JOURNAL

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