ISSN 2397-2769
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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES
PERSONAL INJURY FOCUS ON THE SOUTH WEST PSYCHOLOGY- RICS - FINANCE
Vol 1 Issue 23 - Spring 2018 £5.00 €6.00
Whether you talk to us about expert witness or consulting services, we’ll talk to you from a deeply informed point of view. Our combination of ser vices makes us unique, and a leading provider to clients in legal, financial and insurance, food and drink, leisurre, manuf u acturing, energ y and waste sectors. At over 25 years old, our reputation is stronger than ever. In that time we have built a legacy of trust and confidence — our clients value the depth and qualit y of our insight and we take great pride in delivering intelligence and results that they have real faith in. They tell us that this reassurance is priceless.
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Welcome to the Expert Witness Journal Hello and welcome to the 23rd edition of the Expert Witness Journal. In this edition we feature a wide range of topics including: Personal Injury, Dispute Resolution, Mental Capacity and Debt Collection. One of our main features covers all aspects of Personal Injury, including an article from the Motor Accident Solicitors Society on the ‘whiplash reforms’, a very interesting piece on Sports Injury in Elite Sports Clubs and The Importance of MedCo – a speech from The Rt. Hon Lord Keen of Elie QC, plus Q&As from the Executive Chair of MedCo. We also feature an excellent article by Alison Somek of Somek & Associates, on Expert Debt Collection, providing insights and tips that may assist fellow experts. Our next issue will feature a focus on Scotland along with our usual general related articles. If you would like to submit or comment on any articles, please contact myself at the email below. Many thanks for your continued support.
Chris Connelly Editor Email:chris.connelly@expertwitness.co.uk
This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’. All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Exper t Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2018. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG
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L’Oréal wins skincare device case using shorter trials procedure pilot scheme by Jeremy Dickerson, Burges Salmon LLP In the Patents Court, Mr Justice Carr has held that the L’Oréal patent and one of its community registered designs have been infringed by RN Ventures. This case is of interest because of the successful use of the ‘shorter trials procedure’ pilot scheme in a case which involved ‘significant cross-examination’ in relation to expert evidence. The case also highlights the importance of registering the grant of an exclusive licence of a patent in the context of costs recovery.
The use of the shorter trials procedure is of significance here because the case considered one patent and two registered designs. This required expert evidence and, according to Mr Justice Carr, ‘significant cross-examination’ in relation to certain experiments used by the claimant to prove infringement. However, Mr Justice Carr concluded that the timetable was adhered to and the issues were fully debated. He did, however, remark that time was taken up by procedural disputes that should, in the future, be resolved in advance of any shorter trial to avoid wasted time.
The facts This case dealt with L’Oréal’s (the first claimant’s) claims of patent and community registered design infringement in respect of RN Ventures’ “Magnitone” electronic facial skincare device; a brush to be used to deep cleanse pores. The second claimant, another L’Oreal company, was the exclusive licensee of L’Oreal’s rights in the UK.
Consequences of non-registration of exclusive licences This case also provides a timely reminder of the importance of registering the grant of an exclusive licence of a patent. The patent and registered design were owned by L’Oréal and exclusively licenced to the second claimant (within the L’Oréal group company). The second claimant was late to register the exclusive licence in accordance with s.33 of the Patents Act 1977. Mr Justice Carr considered the policy behind s.68 of the Patents Act 1977 and held that this section was not concerned with potential prejudice to a defendant to infringement proceedings. Instead it was intended to encourage registration of licences so that the register is kept up to date. Therefore, L’Oréal was deprived of a proportion of costs.
Mr Justice Carr decided that due to the hourglass shape of the handle and the ‘distinctive bulbous head’ of the brush, the L’Oréal design created a different overall impression from other powered skin brushes. It was held that the Magnitone brush created the same overall impression on the informed user (the ‘observant user of powered skin brushes’). In considering the patents, it was held that the Magnitone brush, using normal rules of interpretation, fell within the scope of the patent (claim 1) and hence infringed L’Oréal’s rights. RN Ventures’ insufficiency argument was rejected and an earlier US patent application did not render the patent obvious. Therefore, the patent and one of the community registered designs were held to be infringed.
Both sides sought leave to appeal to the Court of Appeal, which has been granted.
This article first appeared on the website www.burges-salmon.com
Shorter trials procedure The shorter trials procedure was introduced to the High Court as a pilot in October 2015 and will be available until September 2018. It is intended for use in commercial and business cases that do not require extensive disclosure, witness or expert evidence. The aim is to reduce costs and to achieve shorter trials of three to four days. EXPERT WITNESS JOURNAL
Many thanks for permission to reprint to Jeremy Dickerson Partner Head of International Head of Intellectual Property, Media and Sport Defamation and Reputation Management
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Contents
Some of the highlights of this issue News and Events
page 4
The Slow Path to Injustice by Simon Stanfield, Chair, Motor Accident Solicitors Society (MASS)
page 18
How may Brexit Affect Personal Injury Claims?
page 21
The Importance of MedCo The Rt Hon. Lord Keen of Elie QC keynote address from the MedCo conference
page 23
Sports Injury in Elite Sports Clubs by Mark Buckingham
page 27
Will the Court Allow a Change of Expert Before Trial? by Hazel Puckering , Levi Solicitors LLP
page 41
The Importance of Researching Other Party’s Expert Witnesses by Colin Nugent
page 43
The Psychology of Legal Communication: The role of ‘intentionality’ and ‘micro-skills’ by Koch HCH, Newns K & Strachan R
page 46
The Difficulties with Borderline Capacity by Giles Eyre and Linda Monaci
page 52
The Chemsex Phenomenon by Darrell Jones
page 58
Expert Debt Collection by Alison Somek, Expert Witness and CEO, Somek & Associates
page 61
Forensic Architecture and Grenfell Tower
page 68
Disputes Between Residential Neighbours are a Growing Problem, by Martin Burns, RICS
page 75
South West Section featuring articles and profiles of experts based in the South West
page 81
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Professor Charles Claoué
Mr. Louis Clearkin
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Mr. Russell V. Pearson
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Contact: Miss Nadia Bouras Tel: 020 8852 8522 Fax: 020 7515 7861 Email: eyes@dbcg.co.uk Web: www.eyelawchambers.com DBCG Legal Ltd, 36 New Atlas Wharf, Arnhem Place, London E14 3SS
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Clearer guidance for Coroners should mean fewer manslaughter investigations, MDU says “In Scotland we are not aware of a case where a doctor has been successfully prosecuted for the similar offence of culpable homicide. We believe the same approach should apply in England and that investigation and prosecution of healthcare practitioners should be reserved for only the worst cases.
There should be clearer guidance for Coroners, the police and the Crown Prosecution Service to prevent doctors being needlessly put through a gross negligence manslaughter investigation, the Medical Defence Union (MDU) said today (28th March 2018) Following up its oral evidence to the rapid review by Sir Norman Williams into gross negligence manslaughter (GNM) in healthcare with a written submission, the MDU explained there is only one or fewer prosecutions for every ten investigations: a significant level of over-investigation of doctors.
“We are advocating straightforward changes that can be made quickly without practical difficulty. Given the clear distress that investigations cause for doctors involved and the fear and concern this generates more widely among healthcare practitioners, the MDU urges swift and decisive action.”
Since 2014 the MDU has supported 34 medical members with manslaughter investigations. Ian Barker, MDU senior solicitor, said: “There should be far fewer investigations and prosecutions of healthcare practitioners for GNM. It should be about identifying and prosecuting only those cases that are the medical equivalent of deliberately driving down the motorway on the wrong side.
The MDU also recommends that NHS Improvement undertakes a review of guidance on dealing with and learning from sudden unexpected deaths. Guidance should state that healthcare staff must be supported and treated fairly and that NHS bodies should not make any assumptions about blame. Another MDU recommendation is the formation of a national police unit to investigate GNM.
“Coroners are currently responsible for passing most cases to the police for investigation and they should get greater support and clearer guidance about the law. There should be a far more robust referral process, to help to achieve greater consistency and clarity and ensure only appropriate cases are investigated.
This guidance was correct at publication 27/03/2018.
Mr Hinesh Bhatt
Dr John O'Reilly
Consultant Orthopaedic Surgeon
MA (Cantab), MB, FRCP (Lond)
Consultant in Respiratory & Sleep Medicine
M.B.B.S, M.S.(Ortho), FRCSOrth (Glasg)
Accredited European Sleep Specialist (ESRS Expert Somnologist) with 25 years medico-legal experience in Respiratory and Sleep Medicine, including Parasomnias (Sleep-walking and Automatism).
Mr Hinesh Bhatt is a Consultant Orthopaedic Surgeon at The Hillingdon Hospitals NHS Foundation Trust in Uxbridge. He has been working as an Orthopaedic Consultant since 2012.
Consultant in Respiratory and Sleep Medicine.
Areas of expertise include: Orthopaedic trauma, general orthopaedics, sports injuries, lower limb arthroplasty, knee arthroscopy & paediatric orthopaedics. He undertakes paediatric examinations and regularly treats paediatric trauma.
Member of European Sleep Research Society. Co-chair of the North West Regional Sleep Network. Co-organiser of the International Sleep Medicine Course. National Clinical Advisor to the NICE COPD Guideline.
Mr Bhatt has medico legal experience since 2013. He undertakes cases on personal Injury and road traffic accidents. His work is split 50/50 Defendant/Claimant. Mr Bhatt has undertaken extensive expert witness training.
Past Chair of the British Thoracic Society Specialist Advisory Group on COPD. Contact details Tel: 01253 394188 Email: johnoreilly@breathe.com SPIRE Fylde Coast Hospital St Walburgas Road, Blackpool, FY3 8BP Area of Work Nationwide
EXPERT WITNESS JOURNAL
Area of work: Greater London, Bexley, Slough, Reading, Milton Keynes & Guilford Mobile: 07723 374 646 - Email: bhattorthopaedics@gmail.com Address: 59 Durley Avenue, Pinner, Middlesex, HA5 1JJ
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Events This intensive cross-examination training course helps you as an expert witness to refine and enhance your performance, and to gain mastery of your presentation. You’ll be cross-examined on one of your completed reports, once in the morning and once in the afternoon. The second cross-examination is recorded.
Re:Cognition Introduction to the Early Trial (London) 21 March and 28 March 4.15 PM Arrival 4.30 PM Presentation Begins 5.15 PM Q&A Venue details: 45 Queen Anne Street, London W1G 9JF Telephone number: 020 3355 3536
Starting 16 May 2018 09:30 in London Starting 06 Jun 2018 09:30 in London Starting 20 Jun 2018 09:30 in Manchester Starting 04 Jul 2018 09:30 in London
Join us for a free presentation to learn more about the ground-breaking Early Clinical Trial. Delivered by Re:Cognition Health Clinical Trials SubInvestigator, Dr Sonya Miller, the presentation will explain how the study works as well as a short discussion on the current status of Alzheimer's disease research.
Civil Law and Procedure - overview As an expert witness involved in civil proceedings in England and Wales, you need to understand the basics of law and legal procedure. This helps you work effectively and confidently, and to comply with mandatory requirements.
There will be a Q&A session after the presentation where our dedicated team will be able to answer any questions you may have about participating in the study.
Starting 07 Jun 2018 09:30 in London Criminal Law and Procedure - overview As an expert witness involved in criminal proceedings in England and Wales, you need to understand the basics of law and legal procedure. This helps you work effectively and confidently, and to comply with mandatory requirements. You’ll also learn the essentials of disclosure, continuity of evidence and how to maintain professional objectivity and impartiality. This course can count towards the Cardiff University Bond Solon Criminal Expert Witness Certificate.
www.recognitionhealth.com
Bond Solon - www.bondsolon.com Excellence in Report Writing - overview 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 reportwriting 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 17 May 2018 09:30 in London
Starting 25 Apr 2018 09:30 in London Starting 14 May 2018 09:30 in London Starting 04 Jun 2018 09:30 in London Starting 18 Jun 2018 09:30 in Manchester
Pro Sols - www.prosols.uk.com Expert Witness Professional Solutions provides learning that covers the entire litigation process. Our workshops give detailed help and guidance on each phase of the process:
Courtroom skills - overview 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.
Developing your practice and winning instructions writing the expert report (at introductory and advanced levels), attending expert’s meetings, preparing for giving oral evidence in court and other tribunals and giving oral evidence.
Starting 19 Jun 2018 09:30 in Manchester Starting 15 May 2018 09:30 in London Starting 05 Jun 2018 09:30 in London Starting 03 Jul 2018 09:30 in London
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
Cross Examination Day - overview The Cross-Examination Day is a follow-on course to the Courtroom Skills Training. EXPERT WITNESS JOURNAL
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Events Introduction 14 May 2018 Time: 9.30-4.30PM Registration at 9.00AM Venue: Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP
This qualification signals high standards of expertise and professionalism for expert witnesses underpinned by regulation. This qualification is not only worthwhile; it has become crucial. Please contact Mrs Raj Sohal (e: rsohal@rics.org) Expert Witness Accreditation Service RICS Dispute Resolution Service Surveyor Court Coventry CV4 8JE t +44 (0)20 7334 3806 f +44 (0)20 7334 3802 e ewas@rics.org
For more information, please call Lynden Alexander on 020 7421 7476 or email him at lynden@prosols.uk.com
RICS RICS Expert Witness Accreditation Service is a voluntary scheme that sets the standards for professionals who act as expert witnesses.
Assurety Assurety provides proven innovative training for witnesses and business leaders facing challenging situations. It was set up in 2012 by Ed Williams QC, Jason Galbraith-Marten QC and Paul Epstein QC who are three senior barristers with over 70 years of trial experience between them. They established the business after realising from their time in court that not enough was being done to prepare witnesses effectively for the real experience of being crossexamined.
The ground-breaking Supreme Court decision in Jones v Kaney made it possible to sue experts in negligence. The recent implementation of the 'Jackson reforms' to costs infrastructure in civil litigation have placed greater emphasis on the quality and value for money of expert witnesses. Some practical consequences of the decision in Jones v Kaney are that it: Highlighted that there is no proper market definition of what is meant by an expert witness. Demonstrated that professionals who act as expert witnesses must apply a high level of professional standards in discharging the role revealed that there is no organisation or professional that trains, assesses and also quality assures expert witnesses.
Witness Training "The most in depth and effective witness familiarisation available" Solicitors and barristers agree that preparation and understanding can make an enormous difference to the quality of evidence that a witness is able to give in court. Nerves, anxiety and unfamiliarity with the procedure can really affect someone’s ability to provide evidence clearly and confidently, which can determine the extent to which their testimony is helpful to the judge and jury.
Revealed that there is no organisation that provides a range of services to help instructing parties identify and source experts witnesses who: are trained and assessed in the role of expert witness are routinely and robustly monitored as part of a quality control regime, are bound to follow published professional best practice and guidelines, have the specific relevant expertise required by the clients. Have been checked to ensure they are free from conflicts of interest, have been checked to ensure they are available to act as and when required.
Our witness familiarisation courses help participants who are facing any type of questioning to give their evidence to the very best of their ability. That might be in a court, tribunal or arbitration, at a public inquiry, before a parliamentary hearing, or by a professional regulatory body, whether as a claimant or defendant, or as an expert witness or a witness of fact. Our courses combine the skills and experience of the best barristers from leading chambers with expert communications theory and techniques to deliver the most effective preparation. Our training focuses not just on what participants say, but how they say it, while at all times emphasising that the duty of the witness is to tell the truth. Participants will be able to watch footage of real cross-examinations, and experience for themselves what it is like to be cross examined by a skilled barrister.0
Our Dispute Resolution Service (DRS) has developed EWAS to provide reassurance to parties who instruct expert witnesses that their experts are: Appropriately experienced in the relevant subject matter. Trained and assessed by RICS in the roles and duties of an expert witness. Subject to the comprehensive quality control regime managed by RICS DRS. EXPERT WITNESS JOURNAL
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Our training faithfully adheres to the guidance given by the Court of Appeal in R v Momodou and the Bar Standards Board Guidance on Witness Preparation.
Course enquiries Continuing Professional Development The City Law School City, University of London 4 Gray's Inn Place, London, WC1R 5DX T: +44 (0)20 7040 0316 E: cpd@city.ac.uk
Please do get in touch with us at any time to discuss your needs. We will be happy to help. In the first instance please contact Charley Masarati on: Tel: +44(0)20 7 1010 350 Email: charley@assuretytraining.com Assurety Ltd, 39 Laurier Road, London NW5 1SH You can also follow us on Twitter @AssuretyComms
Inspire MediLaw www.inspiremedilaw.co.uk Provider of first class conferences, training and events We provide knowledge for medical experts who need to understand the law and for lawyers who need to understand the medicine through conferences and training.
Expert Witness Training | City, University of London The Expert Witness Training CPD course at The City Law School is a bespoke expert witness training for individuals or groups that can be tailored to your area of practice whether it be civil law, criminal law or family law. https://www.city.ac.uk/law/courses/continuing-professional-development/in-house-courses/expert-witnesstraining
Benefits of Inspire Expert Witness Training Mentorship following attendance of our MedicoLegal Expert Witness Training. Marketing of your Medico-Legal expertise to get your practice up and running. Secretarial support for 12 months by experienced Practice Managers. Comprehensive Expert Witness Training course materials for easy future reference. A CPD certificate of completion (6 hours per day) will be provided by the CPD Certification Service following attendance
Managing the Expert | City, University of London This course will cover the different stages of managing an expert witness testimony in order to succeed at trial. www.city.ac.uk/law/courses/continuing-professionaldevelopment/in-house-courses/managing-the-expert
Inspire MediLaw www.inspiremedilaw.co.uk Phone: 01235 426870 Email: info@inspiremedilaw.co.uk
Mr Fortune Iwuagwu Consultant Plastic, Reconstructive and Hand Surgeon MB BS, MSc, FRCS (Glas), FRCS (Ed), FRCS (Plast Surg.) Mr Iwuagwu has over eighteen years experience in the fields of plastic, cosmetic and reconstructive surgery. He offers a full range of cosmetic surgery procedures and treatments to enhance your image and boost confidence. Mr Iwuagwu trained in all aspects of plastic surgery in various internationally acclaimed units in both the UK and USA, gaining extensive expertise and experience in cosmetic, reconstructive and hand surgery. Medico-legal Experience: Mr Iwuagwu has been preparing medico-legal reports for medico-legal agencies and solicitors for more than 14 years. He prepares approximately 100 medical reports a year. The distribution is approximately claimant (80%) to defendant (20%). From instruction to completion of report is approximately three weeks if the client and medical records are available for examination/review. Mr Iwuagwu has undertaken specialist expert witness training. Special interests: Scars, burn scars, hand injuries, soft tissue reconstruction, cosmetic surgery Consulting rooms in London and Essex: Spire Roding Hospital, Roding Lane South, Ilford, Essex IG4 5PZ Springfield Hospital, Lawn Lane, Springfield, Chelmsford CM1 7GU Nuffield Hospital, Shenfield Road, Brentwood CM15 8EH St Andrews Centre for Plastic Surgery, Broomfield Hospital, Chelmsford CM1 7ET Whipps Cross Hospital, Leytonstone, London E11 1NR London Medical Centre, 142-146 Harley Street, London W1G 7LD London Independent Hospital, I Beaumont Square, Stepney Green, London E1 4NL
Tel: 01277 219752 - Mobile: 07508 824858 - Fax: 01277 219752 Email: austingracesuk@aol.com - Website: www.austingraces.com EXPERT WITNESS JOURNAL
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University Creates New Crime Scene Training Facility Above, Ms Emma Rixon, principal lecturer in forensic science at Nottingham Trent University.
One of the biggest crime scene training facilities for students in the UK has been created at Nottingham Trent University.
forensic science. The new facility will also be instrumental in the BSc course gaining re-accreditation by the Chartered Society of Forensic Sciences, a quality mark for all Forensic degrees earlier this month.
Forensic science students will use the building – which can be configured to look like a typical house, bar or shop – as part of their practical training.
“I am very excited by this new facility and what it can offer us in terms of teaching our students and being used as a training centre for police and other forensic providers,” said Ms Emma Rixon, principal lecturer in forensic science at Nottingham Trent University.
Housed inside former two-storey student accommodation on the university’s Clifton Campus, it will help to ensure that students are as prepared as possible for work in a variety of forensic and policing roles. The facility can be used to replicate a broad range of scenarios in homes and businesses, including burglaries, assaults, sexual offences, drugs searches and cyber-crime.
She said: “I am especially thrilled by the new blood laboratory, as this offers us potential to carry out research and develop further teaching in this area. Being able to configure the facility into a bar or shop is very important as there can be particular forensic challenges with business venues which you perhaps wouldn’t get with domestic ones.
As well as spaces seen in a typical home or business venue – kitchen, lounge, bedrooms, garden, shop counter and bar – it includes a room for blood pattern analysis, whereby students can investigate how blood moves under different conditions.
“The improved CCTV is also fantastic and we can’t wait to put it into use.” The new facility replaces the smaller crime scene house on the campus.
There is also a back garden, in which students can practice ‘body’ recovery work, and a teaching room. A CCTV room with access to 26 cameras – including face-tracking technology – is used to monitor and assess students as they make their way through the facility looking for clues and collecting evidence. Students assume the role of crime scene examiners and are trained by university experts to develop investigation, collection and analysis techniques. Forensic science students are trained to identify evidence such as fibres, footwear marks, DNA evidence and digital evidence from mobile devices and laptops. As well as students, the facility will be utilised for training purposes by other external forensic and law enforcement agencies. The majority of students – based in the university’s School of Science and Technology – go into forensic, policing or research roles. The development of practical skills is a key theme of the forensic science courses and the university’s facilities support the ‘crime scene to court’ approach to EXPERT WITNESS JOURNAL
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156 local authorities spend total of £43.3 million on pothole claims Cycling UK, which runs the pothole reporting webtool and app Fill That Hole, recently published its finding showing local authorities have spent at least £43.3 million dealing with compensation claims and legal costs due to potholes over the last five years.
Department for Transport (DfT) figures estimate the true cost of “slight injuries” for road traffic accidents at £15,951. Given 670 cyclists had their claims accepted, Cycling UK estimates potholes have cost the economy a further £10.7 million over the last five years, once costs for the NHS, police time and lost working hours are considered.
• FOI requests of all UK highway authorities show snapshot of how much potholes have cost Britain over last five years
It is likely council compensation records do not represent the full picture as a joint questionnaire of 5,000 cyclists conducted by Cycling UK, BBC 5 Live Investigates and Cycling Weekly found only 36 percent of injured cyclists alerted the council after the incident, with most people saying the process of complaining was difficult rather than easy.
• Injuries sustained by cyclists merit compensation 13 times higher than motorists • Scale demonstrates long-term failure of Government to fund local roads properly The cycling charity points out compensation claims and legal fees alone, not including staff time, from the 156 highways authorities is equivalent to 17 percent of the Government’s five-year Pothole Action Fund of £250m allocated announced in April 2015.
The questionnaire also showed almost half had hit a pothole, with 54 percent slightly injured. 600 (40 percent) of those had to take time off work due to their injuries, with 200 off work for more than a week. Of most concern is that 31 percent were put off cycling as a result of a pothole related incident.
The findings are based on an investigation conducted by Cycling UK who submitted Freedom of Information (FOI) requests to 212 Highway Authorities in the UK, of which 156 responded. The FOIs included questions on the amount of compensation paid out to cyclists and motorists, the number of successful claims by both groups and the amount of authorities spent on legal fees between 2013 and 2017. Key finding for the five-year period show: • Authorities on average incurred costs of £277,707.44 • 670 cyclists and 30893 drivers had their claims accepted • Motorists received on average £841.26 per successful claim • Cyclists received on average £10,963.15 per successful claim • £9,980,158.74 was spent on legal costs
Sam Jones, Cycling UK’s senior campaigns officer said: “Cycling UK’s research reveals only a glimpse of pothole Britain’s human cost. It’s clear more people are being killed and seriously injured while out cycling each year due to years of persistent under investment in our rotting local road networks. “The Government should concentrate on fixing the roads we have first before building new ones. Councils need to provide enough funding to adopt long-term plans for roads, maintenance, rather than pursuing a policy of patching up streets only as they become dangerous. “With the Government looking to encourage more and safer cycling, then the UK’s road surfaces need to be safe enough for people to cycle on.”
The high level of compensation for cyclists – 13 times more than drivers – suggests cycling claims are much more likely to include personal injury rather than just property damage.
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 EXPERT WITNESS JOURNAL
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Justice Secretary Unveils New Bill to Cut Car Insurance Premiums Justice Secretary David Gauke unveils the Civil Liability Bill, offering hope of lower insurance premiums to millions of motorists. E Clampdown on whiplash claims to save motorists
The whiplash measures are aimed at cracking down on these claims. The measures will ensure fairness to both motorists and claimants by: E setting fixed amounts of compensation for whiplash claims; and
about £35 per year E The whiplash changes are part of government’s
wider programme to tackle the compensation culture which is driving up costs to consumers and taxpayers
E banning the practice of seeking or offering to
E Bill includes changes to the way the personal in-
settle whiplash claims without medical evidence
jury discount rate is calculated to bring certainty and transparency to the system, and savings for the NHS
Also contained in the Bill are changes to the way the personal injury discount rate for serious injuries is calculated.
The legislation sets in law measures which will reduce the unacceptably high number of whiplash claims and allow insurers to cut premiums, with motorists anticipated to save on average about £35 per year.
The changes, first mooted in September, will provide a more balanced approach to compensation that fully compensates victims of catastrophic accidents, including the most vulnerable, while addressing issues around overpayment which could have a knock-on effect on public services with large personal injury liabilities – particularly the NHS.
The whiplash measures form a major plank of the Government’s wider work to tackle the country’s compensation culture, ensuring a more balanced and fair system for all concerned. They follow earlier reforms including the forthcoming ban on cold calling, tougher regulation of claims management companies, and a clampdown on spiralling holiday sickness claims.
The discount rate is the percentage used to adjust compensation awards for victims of serious personal injury, according to the amount they could expect to earn by investing it. Its application is an important part of the calculation of awards. It only relates to compensation for future loss.
The high number of whiplash claims has contributed to increased insurance premiums but these measures will mean about £1 billion in savings which insurers have pledged to pass on to drivers.
The adjusted awards should put claimants in the same financial position they would have been in had they not been injured – they should receive neither more nor less than full compensation.
Justice Secretary David Gauke said: The number of whiplash claims has been too high for too long, and is symptomatic of a wider compensation culture.
In February last year the discount rate was reviewed as required by the law and reduced from 2.5% to minus 0.75%. This dramatically increased the size of awards of damages to individuals.
We are putting this right through this important legislation, ensuring whiplash claims are no longer an easy payday and that money can be put back in the pockets of millions of law-abiding motorists.
At the time, the government acknowledged that this move was likely to have a significant impact, launching a consultation on the way the discount rate is calculated in March, followed by the publication of draft legislation in September.
Road traffic accident related personal injury claims are 50% higher than a decade ago, despite the fall in the number of reported accidents and the UK having some of the safest roads in Europe.
We have also carefully considered the report of the Justice Committee on the draft legislation and accepted the majority of its recommendations.
This rise has been fuelled by predatory parts of the claims industry that encourage minor, exaggerated and fraudulent claims, driving up the costs of insurance premiums for ordinary motorists. EXPERT WITNESS JOURNAL
The changes to the discount rate now being introduced through the Civil Liability Bill will create 10
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a fairer and better system of setting the discount rate, which will still provide full compensation. To ensure this happens we will:
It is a well-established principle of law that individuals should receive full compensation for losses suffered as a result of personal injuries that are not their fault. The personal injury discount rate is a percentage used to adjust the lump sum awards for future losses, costs and expenses received by victims of lifechanging injuries to account for the amount victims can expect to earn by investing their awards. The discount rate applied to the compensation for future financial loss (such as loss of future earnings and care costs) should ensure that people receive the full compensation that they were awarded – no more or less – by taking into account what they are likely to earn on that money before they are expected to have spent it.
E set the rate with reference to ‘low risk’ rather than
‘very low risk’ investments as at present, better reflecting evidence of the actual investment habits of claimants; E establish a regular review of the rate, the first within 90 days of the legislation coming into force and at least every three years thereafter; E establish an independent expert panel Chaired by
the Government Actuary to advise the Lord Chancellor on the setting of the rate. 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.
The current framework for setting the discount rate uses real yields from Index Linked Gilts as a proxy for the returns that can be expected from a very low risk investment strategy. However, drawing on expertise from financial advisers, the Government has found strong evidence that in practice claimants are advised to and invest in low risk diversified portfolios.
In February 2017 the discount rate was reduced from 2.5% to minus 0.75%, which has led to larger awards and concerns in some quarters that the current law provides more compensation than needed to claimants. The consultation, launched in March, sought to address those concerns by collecting views on how to make the system better and fairer.
At the time the discount rate was lowered, a number of pledges were made, including a consultation to consider whether there is a better and fairer way of setting the rate in future.
MR SAMEER SINGH
Mr Kim Neal Hakin
Consultant Orthopaedic Surgeon
FRCS, FRCOphth
Personal Injury & Medical Negligence Expert MBBS, BSc, FRCS (Trauma and Orthopaedics)
Mr Kim Hakin is a Consultant Ophthalmologist, providing a service both in the NHS and privately. He undertakes medico legal work at; Optegra Eye Hospital Central London, 25 Queen Anne Street, London, W1G 9HT and The Nuffield Hospital, Taunton. His special interests include the management of cataracts, ocular trauma, eyelid and lacrimal surgery, including cosmetic eyelid surgery (blepharoplasty).
Specialist interests – All aspects of Trauma (soft tissue and bone injuries), Upper Limb Disorders, Whiplash Injuries Medical Reporting Personal injury and Medical Negligence Expert
Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is a member of The Expert Witness Institute. Also Expert Advisor to Nuffield Hospitals, and formerly to the Healthcare Commission, and regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Litigation Authority, as well as many solicitors' firms and legal agencies.
Clinic locations in The Manor Hospital, Church End, Biddenhamm Bedford MK40 4AW The Saxon Clinic, Chadwick Drive, Saxon Street Milton Keynes, Buckinghamshire MK6 5LR
Tel: 01823 250614 Mob 07887 651551 Email: kimhakin@aol.com, carolmatravers@gmail.com. Web: www.kimhakin.com
Tel: 01908 305127 Mob: 07968 013803 Email: orthopaedicexpert@gmail.com Web: www.orthopaedicexpertwitness.net 61 Church End, Biddenham, Bedford MK40 4AS
EXPERT WITNESS JOURNAL
All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm, Taunton TA2 6AN, or by email.
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Making Sense of PI Reforms by Donna Scully, Director, Carpenters It is now over two years since George Osborne stunned the PIU sector by announcing a new round of the Autumn Statement of 2018, supposedly to combat fraud and reduce motor premiums by £50-60 per policy. Astonishingly, throughout the intervening period, no responsible MoJ Minister has been directly cross-examined on the rationale and evidence base for the proposed reforms. That changed on 16 January 2018. Though having witnessed the spectacle of the Justice Select Committee putting the MoJ’s Lord Keen of Elie through his paces, it is perhaps understandable why it has previously been avoided.
Ministers are entirely outdated or discredited.
The encounter was highly revealing, but without being enlightening. It was novel to hear, yet depressingly familiar. Perhaps most of all, it was a damning indictment of departmental policy that seeks to effectively deny legal representation to hundreds of thousands of honest claimants every year.
When asked to justify his claims that “most� claims are fraudulent, he offered no evidence. The likely greater role for the CMCs following the reforms is “not of itself a bad thing�. BTE insurance to fund legal representation may go up (becoming unaffordable to most), but they can still pay for it out of damages. Or they can visit their local Citizens Advice Bureau. The BTE market could be replaced by “good� CMCs, apparently unconcerned that claimants will be driven into the hands of money-driven, uninsured, unscrupulous CMCs. The legal process will be fully accessible to LIPs, as it’s not that complicated. There is no evidence that there will an increase in inequality of arms, although the Transport Select Committee wrote to him on precisely this point last year, highlighting its evidence from its 2013 inquiry.
It was clear to anyone who viewed the hearing that despite numerous consultations, inquiries, taskforces, stakeholder meetings, roundtables, conferences, correspondence and every other form of communication available, the MoJ still has little or no evidence of the supposed problems with which they seek to justify the reforms and more worryingly, few solutions about how to tackle some of the problems that they will create. Some of the views expressed by the
As Jason Tripp of Coplus, an LEI provider, said in earlier evidence to the Committee, the reforms are a “one-size fits-all approach� and “were the reforms to go ahead and legal cost recovery to be removed for 95% of personal injury claims, it would cast doubt over the ability of legal expenses providers to use expert legal representation as the standard service in personal injury claims.� Mrs Justice Simler, a member of the Civil Executive Team of the judiciary for Eng-
Dr HABIBI
PAEDIATRICIAN AND SPECIALIST IN: CHILDHOOD SERIOUS ILLNESSES CHILDHOOD RESPIRATORY DISEASES CHILDHOOD SLEEP DISORDERS
I am a specialist in children's respiratory conditions including, asthma, allergies, bronchiolitis, chest infections and also serious illnesses such as pneumonia, meningitis and septicaemia. I am also a specialist dealing with sleep apnoea and other sleep problems, for children of all ages.
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20 years experience. Over 800 reports. 60:40 Claimant: Defendant UK Register of Expert Witnesses. Family Justice Council Member My work in Paediatric Intensive Care has lead to a special interest in end of life care, decision-making and conflict resolution between health care professionals and families.
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I have assisted the Courts in a number of high profile cases: Glass v UK (Application No 61827/00) [2004] 1 FCR 553 Charlotte Wyatt October 2004 Charlotte Wyatt April 2005 Charlotte Wyatt October 2005
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My Private Practice is based at 84 Harley Street in London, 243 Great Portland Street in London and New Malden Diagnostic Centre in Surrey. I am accessible, available and aim to provide the highest standard of consultation and care for children. I provide medical reports promptly and communicate properly with others involved in my patient's care.
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EXPERT WITNESS JOURNAL
Private Clinic Locations - 4th Floor Room 10, 84 Harley St, Marylebone, London W1G 7HW
35 Weymouth Street, London, W1G 8BJ - Great Portland Street, London, W1W 5AH - 171 Clarence Avenue, Surrey, KT3 3TX
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land and Wales said: “We were concerned by the absence of any evidence to support the assumption that the portal could or would be redesigned to accommodate litigants in person, either at all or in as efficient and effective manner as it currently operates.” It was clear from the evidence session that the MoJ believe that a reconstituted Portal will successfully guide LIPs through the legal process. They cannot as yet explain how it will work, when the system will be fit for purpose and appear to be against piloting it prior to launch.
Mr Tudor Lloyd Thomas
Consultant Trauma & Orthopaedic Surgeon BDS, FRCS I am a Consultant Trauma and Orthopaedic Surgeon with extensive experience within the Courtroom environment including the High Court in London.
The supposed savings for insurers translating to a £50-£60 reduction in motor premiums has tumbled down to nothing, and is now translated as premiums will not rise quite as much as they might have. Insurers are still waking up to the fact that their customers will still require advice and assistance in the event of an accident, whether for an inquiry or non-inquiry. In summary, no-one outside the Ministry of Justice believes that “most” claims are fraudulent. Most, but not all, insurers and defendant solicitors still think the reforms are broadly a good idea, although not without consequences, but claimant solicitors, the trade unions, at least one LEI provider and the senior judiciary have serious concerns about the detrimental impacts caused by the reforms. Absolutely no-one thinks it is a good idea to encourage a re-vitalised CMC market to act as “advisers” to LIP claimants, apart from CMCs themselves – and MoJ Ministers. An already confusing world just got a little bit more difficult to comprehend.
My special interests lie within the fields of Trauma and Orthopaedic surgery and I am the holder of the Cardiff University Law School Bond Solon Expert Witness Certificate. My ratio of Defendant/Claimant/Joint work: 30%/60%/10% Contact Details Tel: 01206 752 888 - Fax: 01206 752 888 Email: tudorlthomas@btinternet.com Turner Rise Consulting Rooms 55 Turner Road, Mile End, Colchester, Essex, CO4 5JY
Never miss a copy of the Expert Witness Journal by purchasing a subscription, 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: medicolegal@harleycardiology.co secretary@drduncandymond.com W: www.drduncandymond.com 110 Harley Street, London, W1G 7JG
EXPERT WITNESS JOURNAL
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Uncertainty Around the Proposed Personal Injury Reforms Continues… by Kelly Cronin at Zenith Chambers Personal injury lawyers have been aware of the government’s plans to reform how personal injury claims are dealt with for some time. Originally, the new proposals were to come into force in October 2018. However, as a result of the General Election in 2017, the Prisons and Courts Bill did not progress.
It is positive that the reforms appear to be coming in stages starting with RTA claims. The government is at least likely to be able to iron out inevitable teething problems before rolling out the reforms to all areas of personal injury. Of course the reforms are not welcomed at all by many, staged or otherwise, given the implications of tariff systems and raising the small claims limits.
Despite the bill having been lost, the Motor Accident Solicitors Society (MASS), the Association of Personal Injury Lawyers (APIL) and the Law Society have recently been advised that the government plans to implement the personal injury reforms in April 2019.
Ultimately therefore, although a new deadline has been set, how the implementation will operate in practice and what the reforms themselves will be remains as unclear as ever.
Initially, the reforms will only apply to claims arising out of road traffic accidents (RTAs) with no clear date having been set for implementation for other categories of personal injury claim. It is therefore unclear when the new reforms will apply to all personal injury claims and whether the reforms will differ in relation to each category.
Many thanks to Kelly Cronin and Zenith Chambers for permission to reproduce this article www.zenithchambers.co.uk
Furthermore, the announcement of implementation from April 2019 comes despite the new Civil Liability Bill having not been published yet and also before the Justice Select Committee has published its report on raising the RTA small claims limit to £5,000 and all other personal injury small claims limit to £2,000. The Ministry Of Justice (MOJ) has confirmed that despite continued silence on the Civil Liability Bill, five working groups have been created to consider specific aspects of the reform programme. These groups will consider legal issues, ensure that suitable processes for admitting liability following an accident are created and suitable IT systems are developed to allow the reforms to operate smoothly. Guidance for all court users following the reforms will also be created. However, it seems presumptuous to set a deadline for implementation in just over a year’s time without the matter having been properly published, debated and consulted upon and without confirmation of what the new legislative proposals are.
Prof Charles M Court-Brown Professor of Orthopaedic Trauma - MD, FRCS Ed (Orth) Professor of Orthopaedic Trauma at the University of Edinburgh. He has a particular interest in the management of orthopaedic injuries, including both upper and lower limb injures and fractures of the pelvis, spine and neck (including whiplash injuries). He has extensive experience in the surgical management of all fractures and in the treatment of complications related to fractures. He has considerable experience in emergency and trauma surgery and has extensive knowledge of the injuries caused by road traffic accidents, falls, trips, assaults and other hazards. He has written 9 books and over 160 papers on trauma and its treatment. He has extensive medico-legal experience and averages about 300 new instructions annually.
Simon Stanfield, chair of MASS, said, “There is an enormous amount for the government to sort out if it is to hit its April 2019 target date”, and as yet there is no clearly set out plan for how this is to be done.
EXPERT WITNESS JOURNAL
Prof C M Court-Brown Craigesk House, Lothianbridge EH22 4TP, 0131 660 4227 ccb@courtbrown.com
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Medico-Legal and Insurance Services Market Report 2018 Medico-Legal and Insurance Services market top £700 million The UK Medico-Legal and Insurance Market (MLIS) is valued at over £700 million in terms of revenue and grew in 2017 by 6%, compared with 13% in 2016. While the market continues to expand, it is being put under more pressure by official moves to cut the number of low value personal injury cases, which has, for example, resulted in a cut in the value of Medco reports sales in 2017 compared with 2016.
witnesses and medico-legal report writing; and Rehabilitation and allied medical services (RAMS), i.e. medical services to rehabilitate and help an injured or ill individual. The report discusses the key drivers of the market from medical, economic and legal perspectives and profiles a number of key companies active in the industry. It also outlines how legal and other changes will shape the market in the future.
The UK Medico-Legal and Insurance Market Briefing is the second edition of an annual IRN Legal Market Briefing from IRN Research and provides an overview of the market for medico-legal and insurance service. This market offers two main types of services to legal services providers, insurers and employers: Medical expertise (ME), i.e. medical expert
The briefing (79pp, PDF), is available directly from IRN Research, priced at £190/€213/US$264. UK sterling price is plus VAT so total price is £228.
Need an expert fast call our free searchline on or visit www.expertwitness.co.uk Mr Nikhil Shah FRCS(Tr & Orth), FRCS(Glasg), MCh(Orth), MS(Orth), DNB(Orth).
I provide medico legal reports in personal injury in various conditions - trips, slips, whiplash injury, hip surgery, complex pelvic acetabular fractures, long bone and articular fractures, ankle, lower limb injuries, hip/knee joint replacements, periprosthetic fractures, soft tissue injuries and LVI cases. I also provide clinical negligence related reports in my specialist area of practice concerning hip and knee replacements, revision surgery, and trauma including pelvic-acetabular fractures. Instructions from claimant/defendant solicitors or single joint expert approximately (ratio 45:45:10). I provide the regional tertiary service in pelvic-acetabular fractures. Nikhil Shah, c/o Consultantcare Ltd Jayne Bailey Riverside Centre, Alexandra Hospital Mill Lane, Cheadle, SK8 2PX Manchester, Cheshire and North West 0161 393 3059 nikhil.shah@consultantcare.com www.privatehealthcare.co.uk/privatespecialists/ find-a-doctor/knee-surgeons/nikhil-shah
EXPERT WITNESS JOURNAL
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Fundamental Dishonesty in Personal Injury Claims by Kelvin Farmaner, Trethowans Solicitors A 2018 High Court decision provides a useful clarification as to when a dishonest Claimant’s personal injury claim will be dismissed in its entirety, even if parts of the claim were valid. This is likely to mean a more robust stance can be taken by many insurers or others facing such claims when fraud is suspected.
At the initial County Court hearing D had applied to dismiss the claim by reference to Section 57 of the Criminal Justice and Courts Act 2015. Section 57 gives the Court power to dismiss a claim if a Claimant has been fundamentally dishonest about it. The County Court Judge declined to dismiss the claim finding that C had not been dishonest, but rather “muddled, confused and careless”, in relation to the preliminary schedule of loss; he had been dishonest in creating false invoices and in stating in his witness statement that the accident had caused him to employ a gardener for the first time; the dishonesty did not contaminate the entire claim; there was a genuine claim for personal injuries which “went wrong” when C was careless and then dishonest; C had not been fundamentally dishonest, but if he had been it would be substantially unjust for the entire claim to be dismissed when the dishonesty related to a peripheral part of the claim and the remainder of it was genuine.
In the case of London Organising Committee of the Olympic & Paralympic Games (In Liquidiation) v Hayden Sinfield (2018) The Claimant (C) had broken his left arm and wrist whilst acting as an assistant to spectators at the 2012 Olympic and Paralympic Games. The Defendant (D) admitted liability. Part of C’s case that he had incurred gardening expense as a result of his injuries as he had to employ a gardener, whereas he and his wife had previously carried out these tasks. The gardening expenses element of the claim was just short of £14,000. Invoices were disclosed which were said to have been rendered by the gardener. D approached the gardener who said he had been working for C for many years and that his level of work did not change as a result of the accident. The gardener also said that the invoices provided in the case were not from him.
Reversing the first instance decision the High Court reviewed the proper approach to Section 57. The Court said that a Claimant should be found to be fundamentally dishonest if it was proved on the
Richard Matthews MB BS (London), FRCS (Eng), FRCS (Edin)
Plastic & Hand Surgeon Mr Richard Matthews is a highly experienced Consultant Cosmetic, Reconstructive Plastic & Hand Surgeon with over 25 years experience as an Expert Witness. A founder member and former President of the Warwickshire Medico-Legal Society, Mr Matthews has great experience in preparing Medical Reports for Solicitors for clients who have suffered personal injury, frequently taking instruction on a Single Joint Medical Expert basis. He has also provided professional advice in cases of alleged medical negligence within his sphere of medical expertise. His medico-legal practice is based at The Nuffield Health Warwickshire Hospital, Old Milverton Lane, Leamington Spa, Warwickshire, CV32 6RW Tel: Email: Fax: Web:
01926-436341 Sally.Bates@nuffieldhealth.com 01926-422659 www.richardmatthewsplasticsurgeon.co.uk
EXPERT WITNESS JOURNAL
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balance of probabilities that he had acted dishonestly either in relation to the primary claim and/or a related claim, and that he had substantially affected the presentation of his case, in a way which potentially adversely affected the Defendant in a significant way. The Court cited the Supreme Court’s recent decision in Ivey v Genting Casinos UK which confirmed that “whilst dishonesty is a subjective state of mind, the standard by which the law determines whether that state of mind is dishonest is an objective one, and that if by ordinary standards a Defendant’s state of mind is dishonest, it is irrelevant that the Defendant judges by different standards”. If the judge was satisfied of this then he had to dismiss the claim, including any element of the primary claim in respect of which C had not been dishonest, unless, he was satisfied that C would suffer substantial injustice. “Substantial injustice” had to mean more than the mere fact that C would lose his damages for those heads of claim that were not tainted with dishonesty.
Consultant Orthopaedic & Spinal Surgeon MA DM MCh FRCS MRCP FRCS (Ed)Orth I have worked as a Consultant Orthopaedic Surgeon and Senior Lecturer at the Hammersmith Hospitals Trust and at Imperial College for over twenty years. I have had particular interests in Fracture Management, including external fixation, and the causation and management of Spinal Pain. I have edited and written six books on Orthopaedic Surgery in collaboration with Professors of Orthopaedic Surgery from the United States, Europe, Australia and Japan. I have been involved in the provision of Medico-Legal Reports within my fields of expertise, for both Claimants and Insurance Companies for over twenty years.
In the Sinfield case the High Court said that the first judge had been wrong to say that C had merely been muddled and careless. His schedule of loss contained dishonest misstatements and what he did was fundamentally dishonest. He presented a claim for a significant sum that was dishonest and evidenced it with false invoices and a dishonest witness statement. The dishonesty was premeditated and maintained over many months. This could have resulted in D paying out far more than it should.
Contact: Mr. Richard Coombs Phone: 0208 398 9765 Email: richardcoombsorthopaedics@googlemail.com 22 Harley Street, London, Greater London W1G 9PL
This is an important decision in that it clarifies that Claimants cannot rely on ignorance or misunderstanding to escape a finding of dishonesty. Nor can a Claimant rely on the fact that he had a genuine injury to justify exaggerations to elements of his claim. It is hoped that this decision will act as a deterrent to those Claimants considering exaggerating a claim.
Mr Aruni Sen UK CONSULTANT MBBS, MS, FRCS (ENG & EDIN), FRCEM, DIP.MED.ED
Medico-legal reports for trauma, personal injury & acute emergencies of any nature; medical review for clinical negligence; clinical expert witness for courts, short review reports on minor injury claims. MedCO & CPR part 35 accredited; ICO registered. APIL expert
Need an expert fast call our FREE searchline on or visit
Area of work; Wrexham, North West of England and the Channel Islands Contact, all postal communication to: TY YNYS, 4 Sables D’Or, Les Grandes Rocque Castel, Guernsey, GY5 7FS Alternate Address (no posts please): 40 Acton Hall Walks Wrexham, North Wales, LL12 7YJ Tel: 07779 529026 (Mrs. Jacqui Davies, Secretary) Mobile: 07931 542759 - 07839 755001 Email: thesens@msn.com Fax: 01481 258472
www.expertwitness.co.uk
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The Slow Path to Injustice by Simon Stanfield, Chair, Motor Accident Solicitors Society (MASS) The worst fears of personal injury claimant lawyers have been confirmed. Despite all the arguments and discussions, and the efforts of many in the sector, Government Ministers remain wedded to a package of so-called ‘whiplash reforms’ that unfairly penalises all accident victims and which will particularly adversely impact already vulnerable groups. Virtually without amendment from the abandoned legislation from last year, for good measure, the recently published Civil Liability Bill even throws in a new mechanism to determine the future discount rate for those most seriously injured.
that incidents of proven fraud account for just 0.25% of motor claims. Adding an uncertain, and disputed, amount for suspected fraud, where a claimant accepts a substantially reduced settlement in respect of a claim, for whatever reason. Just about everyone acknowledges that fraud is probably less than 3% of all motor claims. Even Aviva, who have vociferously campaigned for the Government’s proposals, have reported fraud as being in the region of 1 to 3% of claims. The fact is that the so-called reforms should be proportionate to the scale of the problem. If the level of fraud is so low, then the majority should not be made to suffer from being effectively prevented, and certainly dissuaded, from seeking justice and compensation for their injuries.
Beginning in the House of Lords on 24 April, the legislation is apparently scheduled to receive Royal Assent towards the end of the year, before being implemented in April 2019. Or perhaps not. With resistance growing in the Commons and a restless House of Lords frustrated at having been neutered over Brexit, its path to reaching the statute books may yet not be as smooth as the Government’s business managers would certainly like. The other element of the Government’s package, raising the Small Claims Limit to £5,000, does not require primary legislation. The Justice Select Committee, who conducted a short inquiry into this completely unjustifiable proposal, may yet provide overwhelming reasons why this should not proceed as planned.
The second area frequently cited is the number of accidents versus the number of claims. The Ministry of Justice continues to be keen to emphasise that the number of reported serious accidents has continued to fall, highlighting that cars are now considerably safer. The figure frequently used is that reported RTAs have fallen from 190,000 in 2006 to around 142,000 in 2015, but yet the number of claims has not fallen by a similar proportion. According though to the Department for Transport, around 187,000 casualties are reported by the police each year and recorded in the official National Travel Survey. We absolutely applaud the drop in fatal or serious accidents, but the fact remains that there are still hundreds of thousands of lesser, more minor injuries suffered each year. The latest estimate from the Department for Transport is that there are 670,000 people injured in RTAs each year, and that 483,000 casualties are unreported per year.
In many respects, the debate has moved on considerably since the plan to effectively outlaw whiplash as an injury was first revealed in November 2015. The original proposal to effectively ban the right to damages may have been dropped, but a combination of the proposed ridiculously low fixed tariffs and an unjustified 500% increase in the small claims limit, will severely limit the right to damages anyway. Ministers’ views remain stubbornly wedded to some basic concepts that should by now have been consigned to history.
On the number of claims, this figure continues to be hotly contested. Insurers and the Government tend to focus on the number of Claims Notification Forms (CNFs) submitted, which we accept do not show a consistent pattern of year on year decreases, although analysis from BLM, a defendant legal firm, shows that CNFs declined by 10% in Q3 2017 from the previous year. However, the number of CNFs is only part of the picture, including as it does duplicates and other statistical and administrative anomalies. It always should be contrasted with the number of claims that are pursued successfully, which is surely the only number that really matters. The CRU figures on the number of claims settled does show a significant decrease over recent years. Portal figures certainly show a decrease in RTA claims, of which a high proportion include whiplash.
First, there is the level of fraud. Originally the backbone of justifications for the reforms, the Government have largely sidestepped this issue by simply not mentioning it, faced with the uncomfortable truth that they have little or no evidence of widespread fraudulent behaviour. When pushed, however, one Justice Minister still displayed the old bankrupt argument, suggesting that “many” of the low value RTA claims are fraudulent. Whilst we fully acknowledge that fraud is a continuing problem, we do dispute that a high, or even significant, proportion of claims are fraudulent. Even the ABI have acknowledged EXPERT WITNESS JOURNAL
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A third argument still deployed is that RTA claims are simple cases to process and can be conducted without legal representation. Whilst RTA claims are clearly not amongst the most complex of legal cases, to untrained LIPs unfamiliar with the process or the workings of the Road Traffic Act, they will still appear bewildering and labyrinthine. Even for lower value claims, the process can be confusing and complex. Even if LIPs understand that they need to submit a claim via the proposed new LIP Portal and are able to find it amongst a myriad of likely listings by CMCs, who will flood the new process, for their claim to stand any chance of success, they will need to perform a detailed series of steps – customer validation, fraud checks, liability assessment, deployment fault, deployment non-fault, assessment of vehicle damage, uninsured loss and personal injury. The system will need to access a range of data from different databases. They may need to navigate a case involving a liability dispute, allegation of contributory negligence, dispute over causation, allegation of fraud or fundamental dishonesty. They may need to approach witnesses and gather evidence, deal with expert engineering reports or expert intelligence reports. With many cases falling between the two, with liability not denied but equally not admitted for some time, will the LIP be left in limbo before paid legal representation is permitted or paid for by the Defendant? All whilst they may be recovering from a traumatic incident that may have left them injured and unable to work.
The reality is that after more than two years of consideration and debate, the evidence base is still disputed, unreliable and in some areas is completely speculative. There is still no answer to some fundamental questions that will have a serious detrimental impact upon access to justice. MoJ simply does not know what the full impact will be upon the claims process and the various consequences of the proposed changes. MASS does not think that it is acceptable that public policy should be developed on the back of insufficient evidence and supposition. Regulation should be proportionate and based on clear and reliable evidence, rather than relying upon assumptions of the consequences and a “wait and see” approach. The measures included as part of the Civil Liability Bill are unfair, certainly disproportionate to the highly disputable ‘problems’ they seek to address and are destined to fall far short in some of the Government’s objectives. We must hope that, after closer scrutiny, parliamentarians conclude that there is a fairer way to deal with motor accident victims and that a more reasonable approach to tackling fraudulent claims is both possible and desirable.
Simon Stanfield Chair, Motor Accident Solicitors Society (MASS)
Few claimants would be aware of subrogation rights and may settle claims for their own losses without realising that they also have an obligation to recover sick pay advanced by their employers or payments made by their private health insurers. Most will not be aware of the possibility of waiting for a prognosis period to expire before settling their claim. Some will settle their claim only to realise that they have been undercompensated. Claimants will not be aware of the approach to quantification of special damages, for example loss of earnings and care. There is also the thorny issue of fees. It is not clear yet who will pay for the DVLA fee, GP report, a consultant report, issue fee, application fee, hearing fee, policy report, medical records and the costs associated with accessing the Motor Insurers Database and askCUE PI.
Mrs Robyn J S Webber Consultant Urological Surgeon MD, FRCSEd (Urol)
Consultant Urologist based in Fife, Scotland. My medicolegal areas of interests are; personal injury, pelvic and genitourinary trauma, clinical negligence in all aspects of urological surgery, including delayed diagnosis and complications related to implanted surgical materials.
Of course, the likely result is that LiPs will effectively be forced to use CMCs to navigate this process, no matter how good the LiP Portal is, losing part of their damages in costs. This will undoubtedly lead to an increase, rather than a decrease, in the number of claims. Operating at a much lower professional standards threshold than solicitors, this will be a retrograde step. There will likely be an increase in fraud, as CMCs do not have the same professional obligations to assess the validity of a claim before bringing the case forward. EXPERT WITNESS JOURNAL
Mrs Robyn Webber P O Box 29237, Dunfermline KY12 2DZ. Tel: 07915 423924 Email: medicalreport@btinternet.com Web: www.robynwebber.co.uk
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Is MedCo Really Working? by Matt Currie MedCo was created following a belief that the obtaining of medical reports was bringing the industry in to disrepute. There was a concern about the quality of some reports and a concern that the content of some reports were influenced more by cosy commercial relationships rather than the reality of the injury that was suffered.
This obviously has continued cost (to consumers) and also means that some agencies are focussed on battles with MedCo rather than optimising the service they provide. There are anecdotal stories about the approach to audit of some agencies which suggests that the purpose of MedCo has been somewhat forgotten in the audit. Equally there are anecdotal stories about some poor agency behaviours as well.
MedCo is being seen as an integral part of the process post law reform. At the moment solicitors can often work through the issues presented and the instances of poor quality reports to achieve the right outcome. Post law reform litigants in person will be left in noman’s land where a doctor has failed to provide an adequate service or report
Ultimately this distraction means that the obtaining of good quality independent objective medical evidence in a timely manner is not being progressed in the way it should. Whilst data is helping, practitioners still know that the quality of too many reports is simply not up to scratch.
The ills that MedCo originally sought to resolve were complex and numerous but its creation has been the subsequent source of many of its problems. The role of the Ministry of Justice has always been opaque, wanting to be hands off in terms of accountability but wanting to be a puppet master when it suited. This has resulted in MedCo having the de facto brief of a regulator without being constituted as a regulator.
So why is this important? Post law reform whilst the litigant in person can raise a complaint with MedCo in most instances they will not know how to do that or feel that they cannot challenge a doctor further. Whilst reporting of bad reporting is not as high as it should be by many solicitors this does at least happen at the moment and investigations are undertaken by MedCo.
It is important to remember that much of the work undertaken by MedCo is undertaken by volunteers – volunteers with otherwise very full day jobs. From the outset most of them were handed the task of working with an imperfect solution without being given the time or means to create something which could materially improve the claims process and the public’s perception of that process.
There is industry chatter about the remit of MedCo being extended to cover EL/PL claims and also rehabilitation. There are many arguments why each of this extensions would not be appropriate but the fact that MedCo is essentially still struggling with its own teething problems means that extension could only be viewed as premature. Before there is any extension of the remit of MedCo the Ministry of Justice needs to take some responsibility for facilitating a solution that works for the current purpose. At the same time MedCo itself needs to ensure that audit is focussed on achieving good quality medical reports.
There is little doubt that we are now eventually seeing, some years after its creation, some of the benefits of MedCo. Some of the data analytics is starting to shine a light on doctors who don’t understand the importance of what they do and some solicitors have started to recognise that attempts to “game” the randomisation can have serious adverse consequences for their business. However, given the cost to consumers of MedCo, (to date it has been funded by the ABI which means it has ultimately come from premium income) has enough progress been made?
At the same time practitioners need to take responsibility for identifying bad reports and doctors who do not understand their duty. More reporting to MedCo of instances of poor reporting can only help MedCo to focus their audit and training. Ultimately the whole industry still needs to work together to make sure that MedCo is working for the consumers who pay for it.
The proliferation of new medical agencies immediately following the creation of MedCo was never contemplated. How those new agencies and established players then sought to achieve or retain market share has created a significant distraction for the MedCo board. The inappropriate speed of implementation may create a good reason for the initial distraction but we are still in a position where the status of some agencies is not settled and the distraction continues. EXPERT WITNESS JOURNAL
Matt Currie, author of Is MedCo Really Working? - January 2018, is Managing Partner for Motor Road Traffic Accident Claims at Irwin Mitchell and MASS Regional Co-ordinator – Central East 20
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How may Brexit Affect Personal Injury Claims? The date of the UK leaving the EU is edging ever nearer, with Prime Minister Theresa May invoking Article 50 of the Lisbon Treaty on March 29th 2017 — meaning that the UK is now on a schedule to step away from the economic and political partnership on March 29th 2019. One aspect that people may not be aware of when it comes to Brexit is that there are various EU Directives and Regulations which currently apply to personal injury claims. Lawyers across the UK utilise these when assisting clients, but such practices may soon be subject to change.
businesses across Europe must have in place to protect both workers and visitors on a site or workplace. The Consumer Protection Act 1987 The Consumer Protection Act 1987, as well as its associated regulations, covers product safety and so provides consumers with protection whenever they buy goods and services in the UK. However, this act was passed as a result of an EU Directive from 1985, which saw strict liability being put against any producers of defective products.
Here, medical negligence solicitors fromTilly Bailey & Irvine Law Firm explore the alterations which may soon be witnessed in this area of the medical world in the years to come: Understanding EU Directives & EU Regulations Before we venture into how the EU and personal injury claims made in the UK are currently linked, it is first wise to understand what we mean by both EU Directives and EU Regulations.
Matters regarding accidents abroad EU Directives and EU Regulations are also in place to offer a helping hand to those from the UK who have an accident when they are abroad.
Legal acts which are provided for in the EU Treaty are known as EU Directives. Once in place, all Member States of the EU are obliged to transpose them into national law, and are provided with a set deadline to do so. When it comes to the UK, EU directives have been turned into laws using Statutory Instruments — a process which means the government isn’t required to create a new piece of law and get it passed through parliament every time a new legal act is created.
For instance, there is law in place through the European "Sixth Directive" 2009 which assists those who have had an accident in a EU Member State which was caused by an uninsured driver. In such a scenario, the party from the UK can bring a claim and request for compensation through the UK’s Motor Insurers Bureau (MIB). This then sets in motion a process where the MIB will seek for reimbursement from the equivalent bureau that is set up in the EU Member State where the accident happened.
EU Regulations are the more specific aspects of EU Directives, and are filled with the minimum requirements and fundamental principles that EU Member States must abide to once the legal acts are in place. How do the EU Directives & EU Regulations apply to personal injury claims? There are three main examples of how the EU Directives and EU Regulations currently apply to personal injury claims which are made across the UK…
Then there’s the European Health Insurance Card (EHIC) scheme, which currently gives those from the UK the right to access state-provided healthcare whenever they are temporarily situated in another European Economic Area. Some 27 million EHIC cards have been issued across Britain to date and prove helpful in times when someone in the UK has an accident in an EU Member State, regardless of the extent of their travel insurance cover.
The 1974 Health and Safety at Work Act The European Framework Directive on Safety and Health at Work lay the groundwork for the 1974 Health and Safety at Work Act. This is because this specific EU Directive has long guaranteed the minimum safety and health requirements which
How will Brexit change things? An important aspect to stress when it comes to Brexit is that the UK government must first pass new laws in order to revoke any old European laws which have helped to form part of the nation’s own law. Until any such motion is made, nothing will change as old
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European laws will not instantly cease to be relevant just because the UK is no longer a part of the EU.
Mr William Stuart Hislop
In regards to the EHIC scheme, there has already been a deal in principle agreed by negotiators in Brussels at the end of August 2017, which involved Brexit Secretary David Davis. The agreement outlines that British pensioners who have retired in another EU Member State and then travel to other Member States for holidays can still use their EHIC card whenever they require medical attention. This move is surely a positive sign for the future of the EHIC scheme.
BDS MBChB FRCSEd FFSTEd FDSRCSEd FDSRCPS
Consultant Oral and Maxillofacial / Head and Neck Surgeon Mr Hislop has been a Consultant Oral and Maxillofacial surgeon at Crosshouse Hospital, Kilmarnock since 1994 and is now also at the regional Maxillofacial Unit at the Queen Elizabeth University Hospital in Glasgow. He has been an Honorary Clinical Senior Lecturer at the University of Glasgow since 1995.
However, it remains to be seen what results further discussions will bring when it comes to how Brits make personal injury claims post-Brexit, and how lawyers will be able to assist their clients in regards to these claims.
He specialises in head and neck ablative and reconstructive surgery for malignancy, salivary gland surgery and facial aesthetic and cancer surgery. He is experienced in dealing with facial trauma and also undertakes routine oral surgery.
Many thanks to Tilly Bailey & Irvine for permission to reprint this article - www.tbilaw.co.uk
Mr Hislop is currently carrying out approximately thirty medico-legal reports per year for both defence and prosecution.
Sources: http://www.bbc.co.uk/news/uk-politics-32810887
T: 01563 827 488 M: 07703 578 136 E: stuarthislop@supanet.com 44 Dundonald Road, Kilmarnock, Ayrshire KA1 1RZ
https://www.ashfords.co.uk/article/impact-of-brexit-onpersonal-injury-claims https://www.hughjames.com/news/comment/2016/08/ effects-brexit-upon-personal-injury-law/#.WbJb3MiGOUk https://www.ashfords.co.uk/expertise/brexit-2/brexitpersonal-injury https://www.theguardian.com/politics/2017/aug/31/ brexit-healthcare-deal-is-good-news-for-pensioners https://www.openaccessgovernment.org/brexit-affects-thefuture-of-personal-injury-claims/43669/
Mr Philip Coleridge Smith Reader in Surgery, UCL Medical School DM MA BM FRCS Areas of expertise; Peripheral vascular disease, venous disease including varicose veins, deep vein thrombosis, post-thrombotic limbs, venous ulcers. Ultrasound examination of the peripheral vascular system, surgical treatment of vein problems, laser treatment and radiofrequency ablation of vein problems. Membership, Fellow Royal College of Surgeons Training, Oxford University Medical School Contact Details Tel: 0870 609 2389 Mobile: 07850 232525 Fax: 0872 111 7042 Email: p.coleridgesmith@adsumhealthcare.co.uk Website: http://www.ucl.ac.uk/~rehk999/ Address British Vein Institute 24-28 The Broadway, Amersham HP7 0HP
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The Importance of MedCo The Rt Hon. Lord Keen of Elie QC keynote address from the MedCo conference January18th 2018 As you will be aware, the origins of MedCo lie in the implementation of a number of Government reforms to improve both the independence and quality of medical reporting used in support of low value soft tissue injury claims. The Government consulted on a number of issues back in 2012, and in response members from a wide range of different stakeholder groups representing the views of lawyers, insurers and medical experts came together and agreed a joint plan for the way forward.
new whiplash reform programme, following a consultation on the issue. This new reform programme builds on previous reforms in the sector, such as those taken forward in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was implemented in April 2013 and brought in measures proposed by Lord Justice Jackson in his review of costs within civil litigation. Following these changes, as you know, work was taken forward to establish MedCo.
This cross-sector agreement was crucial to the successful development of the MedCo Portal, and this collaborative approach continued as the original MoJ working group developed the MedCo IT Portal before it eventually became the MedCo Board.
The Government remains committed to MedCo and, if anything, the new reform programme means that MedCo is more important than ever as in future, all whiplash claims will be required to have a medical report.
Such collaborative working with stakeholders has enabled us to move forward with these reforms constructively to meet the Government’s objectives, and I would argue to the benefit of the industry as a whole. That said, I recognise this process has not been without its teething problems.
MedCo’s accreditation of medical experts carrying out medical reports in support of soft tissue injuries is essential to improve the quality of these reports. This is integral to the success of the new reform programme, and will ensure that there is confidence in the prognosis periods provided by medical experts. MedCo’s work to improve the independence of medical reporting through randomisation and the breaking of financial links between organisations involved in the claims process is equally important to the success of these reforms.
I know that many people, from across the personal injury sector both those Directors and sub group members in this room today, as well as those who are not here, but who have been previously involved, have given considerable amounts of their time to ensure Medco is an effective part of the claims process for soft tissue injury claims.
To achieve these aims, it is important that MedCo continues its work to ensure the quality of the medical reporting organisations which are registered on the system, through rigorous enforcement of the qualifying criteria set by the Government.
The reasons for establishing MedCo are still as valid as ever and the good work of MedCo is due to the efforts of a lot of people. So, I would like to take this opportunity to thank them for all their hard work and willingness to work together to make these significant changes in the medical reporting sector. That said, it is also important to acknowledge that MedCo is still grappling with a number of important challenges as it continues to evolve. But perhaps more of that in a moment.
Auditing MROs to make sure they are compliant with the qualifying criteria is a vital part of MedCo’s functions. It is imperative that MROs understand the reasons for these audits and that they work collaboratively with MedCo to complete their audits and act on any recommendations. Collaboration to resolve differences is the most positive way to achieve consensus, and I urge you all to work positively with MedCo as they move forward with their audit programme.
Now if I may, I would like to say a few words about the Government’s wider whiplash reform programme, of which MedCo remains a crucial part. The Government is committed to tackling the continuing high number and cost of whiplash claims, as well as ensuring that 2 meritorious claims are backed by good quality medical evidence, provided by properly accredited medical experts. This led to the announcement in February 2017 of the Government’s EXPERT WITNESS JOURNAL
One of MedCo’s key successes has been the collation of a broad range of management information, which was previously not available. This information has provided MedCo, the Regulators and the Government with significant amounts of evidence to identify and take firm action against adverse behaviours. 23
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Indeed, research published by the Insurance Fraud Taskforce shows that, although there are on average 79% more cars per kilometre on our roads than in other EU countries, there are proportionately fewer fatal or serious accidents. This makes the UK one of the safest places to drive in Europe. In addition, in recent years there have been significant advances in vehicle safety, including to head restraints, which has led to fewer whiplash claims in other jurisdictions.
For example, I’m sure you will all be aware of the problems caused by the setting up of ‘shell’ companies to flood the system. This led to the Government initiating a review and implementing a number of changes to the system, which enabled MedCo to take firm enforcement action resulting in a significant number of suspensions and removals from the system. Indeed, Medco has sent out 352 warning letters and has suspended over 247 users from the Medco register for a number of reasons. 91 of these have since been reinstated after 3 making significant changes to their behaviour. 129 ‘Shell’ MROs have been terminated from the Service.
One of the major consequences of dealing with the continuing high volume of claims in this country is to the consumer through increased insurance premiums. The Government accepts that many personal injury claims are genuine, but there are also many fraudulent, exaggerated and trivial whiplash claims made each year. The level of compensation paid out for such claims is, in our opinion, out of proportion to any genuine injury suffered, especially when balanced against the inflationary effect they have on the price of premiums paid by ordinary motorists.
I am also pleased to note the clear channels of communication that have been developed between MedCo and Regulators such as the SRA which will, I’m sure, result in further regulatory action being taken where necessary. These are just some of the obstacles that we have encountered, and by working together we have been able to overcome them. So I am confident that Medco will continue to play a vital role in the new whiplash reform programme to be taken forward by the forthcoming Civil Liability Bill and secondary legislation. I will say a few more words about these further reforms shortly, but first I’d also like to just say a few words about the technical and administrative strides forward taken by MedCo since it was introduced about two years ago.
There is also no doubt that many such claims are driven by a substantial industry that encourages unnecessary, inappropriate or even fraudulent claims through cold calling and other social nuisances. This is why in addition to the whiplash measures to be included in the Civil Liability Bill, the Government has recently announced that it will be bringing an amendment to the Financial Guidance and Claims Bill to introduce a ban on cold calling by CMCs. This is I know a measure that will be welcomed by many of you here today. It's also worth mentioning there is broader work within the personal injury sector. For example, the Civil Justice Council is currently undertaking work considering the issues surrounding and behaviours relating to low value personal injury claims.
MedCo continues to grow into its role, and it is good to see that it has reviewed and revamped its management structure to better support its work, as well as taking on dedicated staff to provide administrative support and increased its capacity to complete further audits. It is also pleasing to see significant technical improvements which have led to a substantial increase in its recorded traffic. In particular, new features providing increased functionality in the areas of account renewal; expert look up; MedCo Case verification and the accreditation interface have all helped to improve the system.
The observant among you would have noticed that I have now mentioned the Civil Liability Bill a couple of times, so it is time I said a bit more about what it will contain. As announced in the Queen’s Speech in June 2017 the Civil Liability Bill will, when it is introduced, include the whiplash reform measures originally introduced in the Prisons and Courts Bill, which you may be aware fell from Parliament last year due to the General Election.
I started to talk briefly about the Government’s current reform programme in relation to the number and cost of personal injury claims in general, and whiplash claims in particular, and I would like to return to this important issue.
Whilst I cannot at this time confirm the exact date, I can confirm that we will be introducing this Bill during the current Parliamentary session. Therefore, I want to briefly touch on the reform process and where the opportunities and challenges might lie for Medco following the implementation of these new reforms.
Despite recent modest reductions in the number of personal injury claims since the introduction of the LASPO reforms in 2013, the number of road traffic accident related personal injury claims remains more than 50% higher than they were just 10 years ago. This is despite extensive improvements in vehicle safety and a decline in the number of reported accidents. EXPERT WITNESS JOURNAL
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into the small claims track and the development of a new accessible IT system which will enable claimants to access the Claims Portal, MedCo and other required services such as AskCue.
To recap, there are two main strands to the whiplash reforms. First, are the measures to be included in the Civil Liability Bill. These include the introduction of a tariff for compensation for pain, suffering and loss of amenity for whiplash claims. This will ensure that genuinely injured claimants receive a fair and proportionate amount of compensation, and I should also state that all claimants will still be able to receive ‘special damages’ to cover the costs of treatment, such as rehabilitation or loss of earnings.
There will also be issues to be resolved in relation to who commissions a medical report under the new rules, and as to when and how they are paid for. The Ministry of Justice acknowledges these issues, and is working closely with a broad range of stakeholders to identify these concerns and to develop ways to tackle them. This includes working with both MedCo and the Claims Portal, as well as with representative bodies such MASS, APIL and the Law Society.
In addition to the tariff, the Bill will also introduce a ban on the seeking or making of offers to settle whiplash claims without medical evidence. The introduction of a prohibition on premedical offers will ensure that all claims received are investigated and supported by medical evidence to identify the extent of any injury.
MoJ officials have set up a number of expert working groups to consider the specific challenges faced and to help us to develop effective solutions. As well as working with experts in this field such as lawyers, insurers and medical experts, we have also begun the process of engaging with specific third sector advice providers on what is required to support the needs of litigants in person and those with whom they will need to engage. This work is progressing well, and I’d like to take this opportunity to thank all those who have contributed to these working groups in a pragmatic and helpful way.
The other element of the reform programme will be to make secondary legislative changes to the Civil Procedure Rules to increase the small claims limit for road traffic related personal injury claims to £5,000, and for all other personal injury claims to £2,000. The Government believes that the claims that will fall into the new small claims track limits are minor and straightforward enough to be dealt with in the small claims track, without the need for legal representation - although I should stress that claimants are not, and will not be, precluded from engaging legal representation in the small claims court should they wish to do so. The small claims limit for personal injury claims has been set at £1,000 since 1991 and in the same period the limit for nearly all other types of claim has risen to £10,000.
Finally, I should add that MedCo remains central to the Government’s reform plans and as it beds in and improves its effectiveness, the Government is keen to explore how MedCo might be expanded in the future. There are other types of claims which may benefit from a similar approach. For example, holiday related gastric illness claims or the provision of rehabilitation. That is a discussion for the future, so I’ll leave you with that thought for now.
The Government fully expects insurers to pass on the savings from these reforms to consumers through lower premiums, which will end the cycle in which car owners pay higher premiums as a result of false claims or unnecessary claims. We will however, be monitoring the effect of these reforms on the price of motor insurance and will consider taking further action if necessary.
The issue of rehabilitation of course, will also feature in Part two of the Governments consultation response, which I know is long awaited. I will, however, have to leave you waiting just a bit longer in regards to when this will be published, but I can assure you it is on its way. To conclude, I would like to thank Martin and the MedCo Board for their invitation to address your conference. I hope my speech has given you a small insight into the considerable amount of work going on to reform our civil justice system and in particular in the area of personal injury. The Government remains fully supportive of and engaged in the important work of MedCo in the provision of good quality medical evidence, both now and in the future. This is particularly important as together we embark on an ambitious reform programme to make a civil justice system work for the 21st century.
There will be an impact on the whole sector from these reforms, and we expect to see the current high volume of claims decrease. This will affect the medical reporting community as fewer claims will mean fewer reports will be needed. This impact will, however, be mitigated by the introduction of the ban on pre-medical offers to settle, as that group of claims will now be required to have supporting medical evidence. To fully support the implementation of these proposals requires the development of a significant number of products including helpful guidance notes, a new pre-action protocol for claims which fall EXPERT WITNESS JOURNAL
The Rt Hon. The Lord Keen of Elie QC MoJ spokesperson in the Lords 25
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Many thanks to The Rt Hon. The Lord Keen of Elie QC MoJ for permission to reproduce his excellent speech. Also to Martin Heskins for inviting Lord Keen of Elie to provide the key note address at this, the first ever MedCo conference.
choosing. From the outset some solicitors invented ways to manipulate the medical report random search facility. These were quickly identified, and appropriate action taken. Such examples are now rare but MedCo continues to monitor and investigate any complaints. MedCo regularly liaises with the Solicitors Regulation Authority and reports any appropriate cases for further investigation by the regulator.
Many thanks to Martin Heskins, who is the Executive Chair of MedCo. for his Question and Answer session below
Do you think experts have been helped or hindered by MedCo? One of the advantages for experts is the protection they benefit from in respect of payment of their fees. All MROs are required to have a financial instrument which provides a certain level of cover for payment of experts fees in the event that the business goes into administration.
Is there anything you would like to go back and change? MedCo is a not for profit organisation governed by major stakeholders which was formed to implement Government policy in respect of the sourcing of “fit for purpose” medical reports for low value soft tissue RTA personal injury claims and to provide a training and accreditation platform for medical experts involved in that process. MedCo went live in April 2015 following an announcement by the then Secretary of State for Justice.
Does MedCo need stronger powers particularly, in relation to ‘Shell Companies’ abuse of the system? MedCo has dealt with the issue of shell companies in November 2016 when the MoJ published the revised MRO qualifying criteria. We continue to monitor the situation and will continue to take action to suspend any suspected shell companies.
The IT system was developed in less than six months and MedCo met the target date for implementation. However, this resulted in the necessity to allow MROs to self certify against the relevant qualifying criteria and the IT platform only having basic user facilities, which had not been piloted.
Based upon its current remit MedCo considers that it has sufficient powers which, when necessary, have been exercised on numerous occasions. Recently, in two court actions against MedCo involving the exercise of its existing powers the courts found in favour of MedCo.
In an ideal world, MedCo would have fully tested and piloted the IT platform and audited MROs prior to making them operational. Has the purpose of MedCo been successful? Since implementation, unforeseen behaviours by users has meant the majority of time, money and resource to date has been taken away from MedCo’s key purpose of addressing quality. This is now changing. A revised Education and Training programme is being put together, an Expert and Peer Review committee formed and a Medical Advisory Board will shortly be appointed to review medical report case data.
Where do you see MedCo in two years’ time? We will be in a much stronger position to ensure that the quality standards of medical reports have further improved. We will also have a revised accreditation scheme for medical experts. The proposed reforms to personal injury claims and the problems associated with litigants in person obtaining medical reports will present a challenge for MedCo but we are working closely with the MoJ to ensure that we are ready to implement them when required to do so.
There are many who consider MedCo to be an unnecessary administrative and costly burden for their businesses. However, prohibiting financial links between MROs and solicitors and the action we have taken against users and medical experts as a result of their unacceptable behaviours is evidence that MedCo has been successful. Its continued existence is necessary to ensure that the quality standard of medical reporting is further improved and maintained.
The full details of those reforms have yet to be confirmed and published. When they are we will review their impact and make appropriate changes as necessary. This may include the possibility of expansion of the MedCo system to include all personal injury claims that fall within the small claims limit and not just RTA claims.
Overall what has been the response from Solicitors? Many solicitors initially found it difficult to accept that they could no longer instruct the expert of their own EXPERT WITNESS JOURNAL
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Sports Injury in Elite Sports Clubs Professional sport has evolved hugely in the last 20 years. Gone are the days of part time players, the ‘trainer’ with the magic sponge and the idea that injuries are just part of the game.
careers and contracts are lost. The assertion that ‘I would have been the next Wayne Rooney if I had been treated better’ is a common call. The typical case is a player who makes a claim against the medical department of a rugby or football club for alleged poor treatment or mis or delayed diagnosis. Often it is an academy player who, because of his injury and alleged poor treatment, has missed out on a contract or progression in a highly competitive environment.
Players are on big contracts and have huge worth to themselves and to clubs. Academy players aspire to ‘make it’ and join the elite. Even journeyman players make a decent living, but often have little planned for their retirement in their 30s. To look after these ‘assets’ there has been a revolution of the back-room staff with doctors, physios, strength and conditioning coaches, psychologists, analysts, and more, employed within professional sports clubs, particularly football and both rugby union and rugby league.
It is not, however, just alleged poor medicine. There remains an understanding that injury on the field of play is part of the game but increasingly, injuries sustained in training are being viewed as due to irresponsible training methods by club employees. If an injury is then felt to have affected a career progression, then claims are made against the staff and therefore, vicariously, the club for loss of earnings, lack of opportunity to progress and loss of contracts.
These employees are provided by the clubs to provide best care for the clubs ‘assets’ but are equally ethically and medically responsible for the individual player / patient. A difficult balance to strike.
There are many issues that arise in these cases.
The actions of these staff are vicariously the responsibility of the Club and any claim is made against the club as well as the employee.
The Environment The sporting environment is very different to a hospital or private clinic. The physio room is the hub of the club, full of banter and energy. This provides a positive place to recover from the small knocks and bruises but does not always lend itself to good practice in complex cases. Players are constantly popping
The amount of money in sport has inevitably led to recriminations by players should the medical care provided by the club be deemed to be inadequate in returning that player to full fitness. In consequence, EXPERT WITNESS JOURNAL
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in for a ‘quick look’ as they go out to train, asking clinicians to make snap diagnoses in a few seconds. Unfortunately, these diagnoses are later held to account.
What is reasonable recovery? Within sport there is an increasing expectation that, regardless of the injury, a player should be able to return to at least the playing level they were at pre-injury and that if they do not then it is the ‘fault’ of the physiotherapy or medical team.
The Players The players themselves are young and not the best historians or patients. They ‘just want to play’ and as a physio you are constantly managing expectations and youthful enthusiasm. What is more difficult to manage is what happens outside of the physio room and gym. Several cases have had players laying blame on medical staff for poor recovery, only for it to become clear that external activities have, on balance of probability, caused rehabilitation issues.
This is simply just not realistic and there are many studies that show that, however good the rehab, a percentage of elite players do not recover to that elite level. The classic case is the Anterior Cruciate Injury (ACL). Prior to Paul ‘Gazza’ Gascoigne’s injury in the 1991 FA Cup final, this was a career-ending condition. Now, an ACL is seen merely as a 9-month blip in a football career and that, inevitably, you will come back ‘better than before’. Manchester United striker Zlatan Ibrahimovic said, after his recent ACL, that because ‘lions do not compare themselves to humans’ he would return better than ever. In fact, the research shows that at best 82% of players get back to their pre-injured level – meaning 18% do not. Moreover, only 30% of injured players are still playing 3 years later. Is this the fault of the rehabilitation team?
Picture above ‘A quick look’ ‘Reasonable’ The measure we are asked to apply as an expert is whether the care was ‘reasonable’ and that of a ‘responsible body’ of clinicians. The word ‘reasonable’ is, however, not one that sits well with the elite sports environment. Elite sport is all about ‘excellence’ and ‘top class’ and with this comes an expectation that the medical care should also be at that level. This dichotomy leads to clashes between experts as to what is ‘reasonable’ at these levels. Do players/patients have a right to expect more than they would receive at a private or NHS clinic just because they are good at sports?
Picture above, ‘Rehab hurdle’s Staff quality Whilst the very elite are well looked after by dedicated and experienced physios and medics, even at Premiership clubs the fringe players and academies are understaffed and the staff themselves are, typically, not very experienced.
How can the players demand that level of care when they expect it to be provided in that swift 2-minute quick look? Is it indeed reasonable for the clubs to put the clinicians in the position of being asked for such opinions?
Working for a club carries a huge kudos, a badge of ‘quality assurance’ for the C.V. Being seen in and treating the public in the local club tracksuit gives credibility. Clubs know this and can easily fill academy posts with cheap, inexperienced youngsters whose dream it is, to run on the pitch with the stars. This
This is, however, the elite sport environment and typical across all sports. As a physio if you don’t like it then there are many willing to take your place.
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inevitably leads to poor diagnosis and poor rehab. Add this to a hectic environment and care standards drop.
Still experts are increasingly looking at complaints that a drill or exercise ‘hurt’ a player, leading to lost playing time and opportunity.
Remarkable when you consider the value these players have to a club and the demand for ‘excellence’ in care.
Rehabilitation is about returning the player and the injured area to the point where training can be ‘safely’ undertaken. When deciding whether a rehab plan was reasonable you need be able to see the progression of loading and how the physio tested the injured area with ever increasing physical demands to the level akin to that of that player training and playing. A ‘return to play’ plan should include a set of physical criteria that a player is required to meet. This helps to make the process more scientific. For example, the needs of a rugby prop forward are very different to those of a goal keeper in football.
Physios as Medics Physiotherapists, with their diverse range of skills, are often, even at international level, the first port of call and ‘triage nurse’ for all medical matters. Many clubs do have sports medicine doctors, but these are often part time. Sports medicine is a new specialism and they are in demand, expensive and not often attracted to lower profile clubs. Thus, the inexperienced physio is asked to make decisions on matters not necessarily within their scope of practice and in a challenging environment. Consequently, cases are coming forward whereby physios have missed medical issues. It is easy to be critical, but one also must have sympathy for the position physios are put in by clubs. You can argue that they should not be placed or allow themselves to be placed in that position and you would be right, but they are. As an expert, though, you must decide if the physio acted reasonably in giving ‘medical’ advice. Clearly there is a human level of interaction. Is it reasonable for a physio to give a player a paracetamol for a headache or period pain or should they say that this is out of their scope of practice? What if the headache turns out to be concussion or the period pain is something more sinister in a tummy? Retrospectively, it is easy to say that they should not have ‘diagnosed’ the headache as simply that, but you can see the scenario. Rehabilitation and training process The object of training and rehabilitation is to prepare a player for the rigours of competition. Injuries on the competitive field of play are traditionally seen as inevitable.
Picture above, ‘Rehab viper’ Clinical decisions in a club environment have additional pressures. ‘When can I play again?’ is the constant question. ‘I need to play in that game to show the manager what I can do’, i.e. my contract is running out and I need to be proving myself. Furthermore, the same question coming from coaches and managers applies more pressure on the physio, especially the young and inexperienced. Players and managers are powerful figures and use that to get the answer they want. The physio may also have a fan’s affiliation to a club and feel the pressure to have a quality player back on the pitch. This leads to poor decisions being made about readiness to train and play and breakdown and re-injury inevitably follow, as do the claims.
However, injuries on the training pitch are now being seen as the fault of the coach, the strength and conditioning staff and the rehabilitating physio. The argument being that players should be protected from injury by club staff, much like a health and safety code in a work place. The counter argument is that unless you train a player at match intensity and with match forces then you are not preparing them for the rigours of the game. If injuries are inevitable on match day, then it follows that ‘fit for purpose’ training also comes with the same risk of injury. Indeed, it can be argued that training and rehabilitation that is not rigorous enough to be the equivalent of a match falls below a reasonable standard because it does not properly prepare the player for the game and is therefore a breach of care. EXPERT WITNESS JOURNAL
Notes or lack of… A feature of cases, even at elite level, is very poor record keeping by club medical staff. They will claim busyness and the type of environment and to an 29
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ing allegations of doping in sport that he had failed to note in Sir Mo Farah’s medical records an injection of a controversial substance. Dr Chakraverty described it as a lapse and that he had simply forgotten due to the ‘immensely busy job’ and ‘being on the road’. He also said it was ‘just the scenario you are in and not an excuse’. The Parliamentary Committee report of March 2018 found this ‘shocking’ and asked the GMC to look at it.
extent they are right, but, of course, it does not help when things become litigious. The environment is one where you see the players day in and day out, on the training pitch, in the gym, in the treatment room, in the massage room and in the canteen. It is not a formal clinic and conversation and actions are fluid, and this makes proper note keeping hard. Having been there I have a certain sympathy with the physios involved and I have been just as guilty. There are electronic note-keeping systems, but in my experience these are haphazard and subject to the vagaries of Wi-Fi connections.
Claimant recollection versus contemporaneous notes Claimant recollection, which feature in Particulars of Claim, can sometimes seem to come straight out of Google. Experienced players will have inevitably picked up an amount of sports injury knowledge over a career. This is particularly obvious on those occasion when there are good contemporaneous notes made by the Physios and that the reported symptoms do not match the claims in any way.
Conversations between experts writing up joint statements often focus around the poor medical notes. Some experts feel the notes should be perfect and up to the high SOAP note standards of The Chartered Society of Physiotherapy while others have a little more sympathy, within reason. A good example of this is a case with which I ended up in court that had essentially no physio notes covering a whole 9-month rehab period. The judge and experts had to, effectively, rely on the 6-weekly letters from the surgeon. In the end the Judge accepted those as proof of ‘reasonable’ progress.
Often, bigger clubs will have several physios and massage staff and I have seen repeated accusations of a player being ‘ignored’ by all these clinicians when complaining of various symptoms. This then comes down to a ‘dispute of fact’, despite what any notes may say, and the expert must present this, as they see fit, with a view on ‘balance of probability’ attached to it for the solicitors or judge to make their decision.
This raises an issue of what is a reasonable standard of note keeping and indeed if a poor standard is in itself both ‘un-reasonable’ and a ‘breach of duty’. As physios we were taught that without quality notes you could be hanged, drawn and quartered as you could not prove that what you did was right. The court case seems to say that the balance of proof is more incumbent upon the claimant to prove poor practice, than the defendant having to be able to prove that their actions were reasonable.
Experts will differ in their opinion of this. Some will say, ‘if the claimant did report this then it was wrong not to act on the complaint and thus unreasonable’. Others will say, ‘the claimant complained to numerous physios over the years about numerous other issues, all of which were acted upon so why would they ignore this one? Especially as, on face value, it was quite a serious complaint?’ It is a balance of probability opinion based on a dispute of fact for the solicitors and judge to decide.
As an expert, therefore, it is hard to pick that middle line. How far does ‘on balance of probability’ go when deciding if you feel actions fell below a reasonable standard if you have little to go on but reported memories of what happened, maybe as long as 3 years ago, from both claimant and defendant?
My view of the middle line is that you should look at everything and piece it together, apply a view of whether the actions, as far as you can see, were reasonable, but qualify it with comment about the quality of the evidence.
Staff turnover A further problem for solicitors and therefore experts in the sports field, following on from the poor notes, is that there is a high turnover of staff within clubs. A claim is lodged against a club and its employees and the club’s insurers pick up the case. If a case is a couple of years old then often the club employees, the physios, will have moved on. As quickly as managers. Poor records and the fast moving, fluid consultations style in clubs makes memories of what happened sketchy which means that the experts are left trying to form an opinion on limited contemporaneous information.
Clearly there can ultimately be no excuse for poor note keeping. It is a fundamental part of being a clinician and part of your responsibility to the patient. However, it still happens and with the very elite. Last year Dr Chakraverty, then of British Athletics, admitted to a Parliamentary Select Committee investigat-
Physios are often difficult to track down and sometimes they will have moved abroad. In such cases, as it is ‘just’ a claim against the old club, trying to get those physios engaged with the issues is a difficult task which further limits the information coming to the expert.
Some experts will scan medical records for every little bit of information, almost trying to build the case, whilst others will simply say the notes don’t show evidence to counter the claim so that in itself is a breach.
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The same principles of a return to sport plan apply – although it might be a return to jogging or work plan. Sometimes the patient expectation is out of line with the reality, at other times the lack of understanding of the physio of the nature of the tissues and the healing process leads to too much load too soon. The expert must decide if the loading was either grossly inappropriate or reasonable in the context of the assessment. No rehab process is without its ups and downs and a physio is only ever using a sort of best guess as to what is appropriate. The human body is not predictable but there is still a line to be drawn between reasonable and irresponsible progression.
Sports Injury Clinic In comparison to the club a private or NHS clinic should be much less pressured. Rehabilitation should be comfortably paced, and expectations managed and met. Note keeping should and often is much better. The types of cases that arise concern misdiagnosis and both poor rehabilitation and treatment.
Picture above, ‘Clinic environment’ Misdiagnosis Typical misdiagnosis cases are of things like Cauda Equina, where a low back pain and sciatica ends up being large disc injury and causes permanent damage to the nerves. This can be mitigated by early referral for surgery at the initial outpatient assessment. The expert must decide if the right questions were asked, the right tests performed and if the responses and results were interpreted correctly or ‘reasonably’ by the clinician.
Picture above, ‘Hands on loading’ Even the clear-cut cases can be difficult to judge. For example, I have been involved in a few cases of acupuncture-induced pneumothorax (collapsed lung). The patient has received appropriate acupuncture treatment for shoulder pain. The points used, however, are known risk points for pneumothorax if treated incorrectly and the patient might go on to develop this condition following treatment. Clearly, you would say the needle was inserted incorrectly and caused the lung collapse.
The difficulty is that signs, symptoms and results are not black and white, and conditions do not present themselves perfectly or the same each time. Thus, the view on what is reasonable must be balanced. Sometimes the signs were clearly missed, and the right protocol was not followed indicating an obvious breach. Alternatively, with the benefit of hindsight the patient, when the full diagnosis is known, will claim that the Physio should have acted differently. The expert has to decide if the actions related to the signs seen at the time of the assessment in question were reasonable. Furthermore, this is to be seen in the context of best practice at that time, not considering subsequent research and methods.
Maybe, but there is a common condition called spontaneous pneumothorax – where it can simply happen to any of us at any time. Indeed, the research shows that the chance of a spontaneous pneumothorax is greater than the chance of one being caused by acupuncture. So again, there is a balance of probability to be weighed. If the pain and symptoms were felt immediately then it is probably attributable to the acupuncture. But what if the signs came on hours or more later?
Poor rehabilitation and treatment The cases where patient outcome is not what were expected still occur in NHS / private practice. As note keeping is better in the clinic environment without the distractions experienced in a sports setting, it is easier for the expert to follow the clinical reasoning and pathway. Good notes will show progression of healing and of rehabilitation loading. Bad notes are also harder to view as anything other than a breach of duty.
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Accurate recording of technique is important, but I have yet to see a set of notes that record that the needle in these risk points was placed ‘obliquely to the chest and into pinched skin’ as it should be to avoid pushing it through the chest wall. Does not recording this show a breach of duty or that the physios didn’t do it? When is it probably acupuncture induced as opposed to spontaneous? 31
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Conclusion The world of sports injury is therefore a diverse and pressurised one. The working environment in clubs is difficult and leads to poor clinical practice and standards of record keeping. Despite the vast monies at stake, clubs cut corners in their care of players by employing inexperienced physios and ask them to make quick decisions on a player’s fitness. The inevitable mistakes that arise from these factors have to be balanced between the “completely unreasonable and reckless” through to the ‘on balance’, “they probably did a reasonable job”.
Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA
Chronic Pain Expert Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims.
Clinical judgment and research has to be tempered with experience of both the condition and the process to provide an expert view to assist the court and the judge.
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. 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:
Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF
Mr Simon Fulford MBBS, FRCS (Eng), FRCS (Urol)
Consultant Urologist I have been Consultant Urological Surgeon at James Cook University Hospital, Middlesbrough since 2001. I am also Consultant Urologist to the regional spinal injuries unit based at James Cook University Hospital which provides acute and long term care to patients with spinal cord injury from the whole of the North of England. In addition I have a private and medico legal practice based at Woodlands Hospital, Darlington.
Picture above, ‘Physio in action in the field’
Within my clinical practice I specialise in neuro-urology (including spinal cord injury), urodynamics and reconstructive surgery for incontinence and bladder dysfunction. I regularly teach on national courses about these topics. I also regularly perform radical cystectomy for bladder cancer and pelvic exenteration for advanced gynaecological and colorectal cancer. I also maintain a general urology practice.
Mark Buckingham is a Chartered Physiotherapist with 25 years’ experience in both elite sport and private practice. Having spent many years working with British Athletics and running the High-Performance Centre at Loughborough through several Olympic cycles Mark now owns a large private practice treating a wide variety of patients, from the elite athlete to the general public.
I have been preparing expert witness reports since shortly after appointment and have attended training courses in medico legal report writing. I have appeared in court as an expert witness. I currently receive four to six instructions per month including medical negligence and criminal cases. I have worked for both claimant and defendant and have acted as a single joint expert.
Mark is involved in all types of medicolegal work from preliminary views to full reports and court appearances. www.wpbphysio.co.uk. www.medicolegalphysio.co.uk. EXPERT WITNESS JOURNAL
BMI Woodlands Hospital, Morton Park, Darlington DL1 4PL T: 01325 341 700 M: 07855 312 901 E: simonfulford@nhs.net
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phone: 07786 327978 email: exper ts@tclinic.co.uk web: www.tclinic.co.uk
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Medical Negligence and Consent: The Expert's Role The law concerning consent to medical treatment changed in 2015 with the Supreme Court ruling in Montgomery v Lanarkshire Health Board. So what is the medical expert's role now in giving evidence issues of consent? numerous other examples in the report of doctors misunderstanding their patients' preferences both in terms of treatment and outcomes. This indicates quite how important that the Montgomery decision was in enshrining patient autonomy in the law's approach to patient consent.
Patient Consent: The Law Prior to the Montgomery decision, whether medical advice was adequate was a matter judged by the standards of the medical profession. The Bolam test applied. Advice was adequate if a responsible body of doctors practicing the same discipline would have offered the same advice. So a vascular surgeon's advice about the merits of, say, amputation was judged according to whether a responsible body of vascular surgeons would have given similar advice. If so, the advice was adequate and there was no breach of duty.
Following Montgomery, a doctor must now take reasonable care to work out what each patient would regard as material. The starting point is to consider what a reasonable person like this particular patient would expect to be told. The court expects there to be a dialogue between doctor and patient. Through discussion the doctor works out what the patient's concerns are and assesses what information to provide. Armed with relevant information (and what is relevant will vary from person person), patients can make their own decisions and properly exercise autonomy.
With Montgomery, the law changed. The Supreme Court held that Bolam test did not apply to advice. A doctor's duty is now to take reasonable care to ensure that a patient is aware of the material risks of a recommended treatment, and the material risks of reasonable alternative or variant treatments. A risk is considered material if, in the circumstances of a particular case either: • a reasonable person in the patient's position would be likely to attach significance to the risk (I call this the first limb), or • the doctor is or should reasonably be aware that the particular patient would attach significance to it (the second limb).
Advising Patients: Separate Roles In the light of Montgomery, advising patients in effect involves what I suggest are 2 distinct roles. One involves the exercise of medical skill. The other does not. The first role involves assessing the range of reasonable treatment options. There is never just one possible approach to a medical issue. Even if medicine can only offer one treatment there is always an option of not having treatment. The doctor then must consider the risks and benefits of alternative treatments. Exercising this role requires medical skill.
Patient Autonomy Underlying the Supreme Court's decision is respect for patient autonomy. It is for the patient to decide what risks to take. Assessing risks and considering their significance for a particular person is not just a medical matter. Different people will place different weights on different risks. Their decision will be affected by their values, goals and concerns generally. Because considering the significance of risks for one's own life is not a uniquely medical decision, the role of experts in giving evidence on this issue is now limited.
The other role is to identify which risks are material for each patient. This normally means applying what I have called the first limb and considering what a reasonable patient like this patient would want to know. In some circumstances the second limb applies because the doctor is aware that this particular patient attaches significance to a risk a reasonable patient might not. Identifying what risks are material to this patient is not an exercise of uniquely medical skill. Some considerations will be non-medical. And they will differ from patient to patient.
A report by the Kings Fund (Patient Preferences Matter) concludes that doctors not always as good as they think at understanding what patients want. In one example, doctors were asked what percentage of patients undergoing treatment for breast cancer gave top priority to preserving the breast. Doctors put the figure at 71%. In fact when patients were asked, the figure was only 7%. This is an extraordinary difference. When I mentioned this to a breast surgeon he said, 'But we were always taught at medical school to preserve the breast if at all possible'. It seems he was taught wrongly. There are EXPERT WITNESS JOURNAL
Medical Advice: The Role of Expert Evidence The medical expert can assess the exercise of the first role but not the second. The expert can identify: • the range of reasonable treatment options; and • the risks and benefits each. However, it is not the expert's role to give an opinion about the exercise of second role. The court does not 34
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need expert evidence on the point. Experts stray outside the ambit of their role if they comment on it.
the association. But should he have gone on to advise the mother? The Defendant's expert thought a responsible obstetrician would not have regarded the unusual scan findings as significant. It was therefore unnecessary in his view to discuss them with the mother. The Claimant's expert thought he should have discussed them but only because the obstetrician was pursuing an unusual course of action in failing to induce. The claim failed at trial.
The expert should not now comment on: • whether the discussion with the patient was adequate; and • whether particular risks are material risks for this individual patient. Assessing these issues involves an appraisal of whether a patient's rights have been respected – whether they have able to exercise autonomy. In the words of Lords Kerr and Reed in Montgomery, 'Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions.'
After Montgomery, the Court of Appeal heard the mother's appeal. It rejected the evidence of both experts on the issue of whether the obstetrician should have advised the mother of the risk. It found that she was entitled to be told. In her mind this would have been a material risk. This was not a matter for experts and their views on the point were rejected.
Recent Cases 2 cases decided 2017 help to illustrate the role of the expert.
Conclusion With Montgomery the landscape in relation to consent to medical treatment has changed. This has implications for experts. Their role has changed. They can give evidence in defining the range of reasonable management options and the risks and benefits of those options. What they should not now address is whether the discussion with a patient was adequate, whether particular risks were material to the patient and whether consent was valid. Assessing these issues is not a matter of medical skill. It involves an assessment of the patient's rights and is a matter for the court and not the medical profession.
(a) Thefaut v Johnson [2017] EHWC 497 Mrs Thefaut underwent private spinal surgery and suffered a poor outcome. She was found to have been given inadequate advice as to the risks and had therefore not given valid consent. The court heard expert evidence as to the risks and benefits of surgery as opposed to conservative management. It found that the surgeon's advice was inaccurate – his figures were wrong. He under-estimated the risks of surgery, overestimated the benefits and failed to advise that with conservative treatment she would probably recover within a year.
Paul Sankey is a solicitor and partner at Enable Law, specializing in clinical negligence claims for patients. https://www.enablelaw.com/team/paul-sankey/
The expert evidence addressed the first of the 2 roles identified above. The question was not whether the risks of which Mrs Thefaut was advised were material – it was whether the medical information she was given was correct. Expert evidence at this point was appropriate.
Dr Bashir Qureshi FRCGP, FRCPCH, Hon. FFRSH, RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSH, Hon.MAPHA-USA
(b) Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62
Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence.
The first post-Montgomery case to reach the Court of Appeal concerned a failure by an obstetrician to advise a pregnant woman adequately. Scans showed some unusual features. Although the obstetrician was not aware of their significance, had he checked he would have discovered that they were associated with an increased risk of antenatal foetal death. Experts properly gave evidence as to what those risks were and the options for managing the pregnancy (induction at term or continuing after the expected date of delivery). Induction would have minimised the risk. However the nature of the discussion with the woman and the assessment of the significance of those risks for her fell within the second role.
As a specialist in Cultures, Religions and Ethnicities, since 1992, I have written reports, given advice, and evidence in tribunals or courts. In cases of medical negligence, discrimination in employments, personal injuries, accidents, murder inquiries by police, family or marital disputes, child abuse, sexual abuse, immigration, asylum and other litigation cases. Languages spoken: English, Urdu, Hindi, Punjabi. Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.
Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS
The claim was tried a few months before the Supreme Court made its decision in Montgomery. The trial judge applied the Bolam test to the question of consent (in line with the law as it was understood to be at the time). He found that the obstetrician should have carried out some research and would have discovered EXPERT WITNESS JOURNAL
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How to be a Better Medical Expert: 5 Top Tips by Paul Sankey - Partner and Clinical Negligence solicitor acting for patients, an accredited expert in his field. There is more to being a good medico-legal expert than being a good doctor. It is rare to win a clinical negligence case (and this is my field) without good experts. But sometimes cases go wrong because the expert lets a client down.
But it is not always the most impressive cv that impresses the judge. Sometimes the court will prefer a less experienced expert if they spend more time at the coal-face. In one case the court preferred the evidence of 2 less experienced experts (although to be fair, they were still both professors). As the judge said, '…they had the advantage of being more in the front line of medical practice and did not spend an undue amount of time in medico-legal work'[2] – which suggests a degree of suspicion of the 'professional expert'.
With the right expert evidence, people who should get damages win their cases but those who should not, do not pursue claims (and hopefully understand why). Costs are incurred on the right cases. My goal is for the right people to get damages and for the health service not to spend the minimum on costs in the process.
And there are occasions when an expert is too specialist. If the court is judging the standard of knee surgery by a general orthopaedic surgeon in district hospital, it is unlikely to want to hear from a specialist knee surgeon in a tertiary referral centre. There may be a suspicion that the specialist's standards are too high.
So after many years of running clinical negligence claims, here are 5 top tips on how to be a good medical expert. (In a follow-up article I will give 5 more see http://bit.ly/2wthWvw) 1. Make sure you have the right expertise Many years ago, an expert reported for me that a surgeon caused harm because used the wrong technique in carrying out an unusual procedure. (If you want to know it was a Lue procedure for Peyronie's Disease.) The claim was strongly defended. My expert produced weighty reports and explained his view convincingly in conference with counsel. But at a late stage, when the pressure was on, he confessed that he had never actually done the procedure. He thought he knew how to do it – but he was wrong. He led my client wrongly to believe he had a good claim. The result was not just disappointment but a lot of wasted money. I should never have instructed him and he should never have accepted instructions. I learned a lesson and now always check an expert's experience.
2. Try to be objective The Civil Procedure Rules require an expert to be impartial. Your overriding duty is to the court. It may sound naïve to think that an expert will be totally impartial and it probably is. But that should be the aim. We all know of 'claimant experts' and 'defendant experts'. I do not want to instruct either. I want experts who give an honest and impartial view – not ones who tell me what I want to hear or undermine a legitimate claim. Experts who display obvious bias will undermine their own evidence. In plenty of cases biased experts have been recognised for what they are. Consider a recent commercial case where the judge said this about the defendant's expert: 'I formed the impression that he has…developed what might be regarded as an expertise in giving evidence. [He] was extremely careful in giving answers. I increasingly took the view that this was because his first priority was to avoid saying anything that might damage [the defendant's] case'[3]. Ouch. Needless to say the judge was persuaded by the claimant's expert who 'gave clear and direct answers'.
Judges, being wiser than I was then, will probably look carefully at an expert's cv at trial. See for instance how Mr Justice Foskett in a 2011 case worked his way through an impressive cv and commented that she was 'eminently well qualified to offer an opinion on relevant issues in this case'. In case you are daunted by the impressive cv I have quoted it him more widely but only in a footnote[1]. Don’t allow yourself to be trumped by someone who knows more than you do. If you are not the right expert, don’t put yourself forward.
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In another very recent case, the judge said of one expert, 'I have to say that I found [his] evidence to be absurd…Had he made proper enquiries of his client…he would have been in a much informed 36
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position. But he did not do so'.[4] Comments like this from a judge are likely to form an epitaph to a forensic career.
Paul Sankey is an experienced clinical negligence solicitor and partner at Enable Law, acting for patients. See www.enablelaw.com/team/paul-sankey/
3. Avoid the temptation to be an advocate One medical expert I instructed used to take over conferences with counsel with advice on the law and likely award at trial. Some have even re-qualified in law. In one recent case, although the judge accepted the expert's evidence he expressed concern that the (otherwise excellent) expert used words like 'submit' and referred to his 'argument'[5]. I do not think this expert is anything other than highly professional and independent in his evidence. But the choice of his language was unfortunate. So avoid the temptation to plead a case. Stick to giving evidence.
Many thanks to Paul for permission to re-print this article Footnotes: [1] The expert was Professor Kirkham. 'Her CV demonstrates that she is a highly qualified and highly distinguished paediatric neurologist who has been a Consultant for about 20 years with clinical experience at Great Ormond Street Hospital and Southampton General Hospital. She was a senior lecturer in Paediatric Neurology at the Institute of Child Health for approximately 16 years prior to her appointment as Professor of Paediatric Neurology at the Institute in October 2006. Her written contribution to medical literature, both in textbook form and article form, is very extensive and her particular research interest has been in the detection and prevention of brain damage in acutely sick children. Her recent Doctor of Medicine thesis at the University of Cambridge was entitled ‘Cerebral Haemodynamics in Normal Subjects and Children in Coma’. She was eminently well-qualified to offer an opinion on relevant issues in this case.' Morwenna Ganz v Dr Amanda Jillian Childs and others, [2011] EWHC 13 (QB).
4. Avoid prejudging the facts What do you do when there is a conflict of evidence? The answer is that you give opinions based on both scenarios. You leave deciding which is correct to the judge. You do not base your view only on what the party who instructs you says. If you do not follow this advice you risk: Annoying the judge – who will not like you usurping his or her role;
[2] Melhuish v Mid Glamorgan Health Authority [1999] MLC 145
Appearing biased – because you have worked on the basis of only one party's case; and
[3] Edward Lifesciences v Boston Scientific [2017] EWHC 755 (Pat) [4] BHL v Leumi ALB Limited [20170 EHWC 1871 (QB).
Failing to engage with the other side's case.
[5] Muller v Kings College Healthcare Foundation Trust [2017] EWHC 128 (QB)
It is a constant frustration to be served with expert reports from experts who assume their client's account of the facts is correct and do not engage with the other possibility.
[6] BHL v Leumi ALB Limited [20170 EHWC 1871 (QB).
5. Put the work in and get it right first time It is much better to consider your evidence carefully and carry out research before you set pen to paper (or finger to keyboard). There is nothing more annoying that a case collapsing at a late stage when an expert is forced into a change of view. I would not encourage experts to stick with a view in the face of clear evidence that they are wrong. The expert's whose evidence was criticised as 'absurd' was also criticised for failing to make reasonable concessions. In the judge's words, 'His evidence on a number of points was unsatisfactory and showed an unwillingness to concede anything'[6]. But it is better to do your homework and get it right first time.
Dr Gordon Williams Consultant Cardiologist MB BCh FRCP FACC Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT Tel: Fax: Mob:
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.
I am unlikely to instruct an expert again once they have let me down. So these are 5 top tips for being a better medico-legal expert. They came out of a seminar I gave to experienced medical experts recently. If you find them helpful look out for my 5 further top tips – to follow shortly.
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0113 218 5943 0113 218 5987 07702 550 758
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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Assessing Witness Evidence: How Does the Judge Know Who to Believe? Clinical negligence cases normally turn on expert evidence. The key issues are usually medical matters: whether care fell below a reasonable standard and, if so, whether it caused harm. These are often complex issues addressed by experts. There are, however, cases where there is a dispute as to what was said or done and when. Consent cases are one obvious example. The patient says she was not warned of a risk. Her doctor says she was. Sometimes birth injury cases turn on timings and there may be different accounts of what was said and done when. In these cases the evidence of witnesses who were there will be important.
In some cases it is not the content of documents but their absence which is important. There are times when if a witness's account were true, one would expect to see a particular document. For instance, there may be a clinical record saying that a patient failed to attend an appointment. Can it be assumed this was the patient's fault? Did the patient know? If the patient had been told of the appointment one might expect to find in the records a letter notifying her. The absence of a letter might suggest that the 'no show' was administration failure rather than patient default.
What happens when there is a conflict of evidence? Is it just one person's word against another's? How does judge decide who to believe? Is it all down to the impression they make in the witness box?
In one case the Court of Appeal commented, 'what has impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings'.
Some of the reported cases give helpful guidance on how to assess witness evidence. In one recent tax case the judge summarized the right approach. Witness evidence must be weighed with 'objective facts'. Here is an outline of that approach. Layer 1: Agreed Facts Assessing a witness's evidence starts with looking at how it fits against the overall background. The first part of that background is the facts which are not in dispute. These should be clear from the statements of case on both side. For instance, in a clinical negligence case, it may be agreed that the patient was suffering from a particular medical condition, was treated in a particular hospital and seen by a named doctor. Witness accounts which fit with this background will be persuasive. Accounts which do not fit will not.
Documents will be particularly persuasive where they meet 2 tests. The first is that they were contemporaneous – they were made at the time of the events. The second is that they were made without the dispute in mind. In an important article, the late Lord Bingham commented, “In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time�. In clinical negligence claims the medical records are important documents. Patients have no input into the content of these records and may complain they are wrong. It is possible that not every entry is correct but it is unlikely that many are wrong. Where they are computerized, later changes can be tracked. So despite what some patients fear, it is unlikely that computerized records will have been doctored. My own rule of thumb in assessing what clients tell me is that the more they question the records, the less convincing their account is likely to be.
Layer 2: 'Incontrovertible' Evidence The next part of the background is facts which cannot really be doubted whether they are agreed or not. They are 'incontrovertible'. These are matters independent of a witness's memory. There may appear from documents. Or there may be some form of hard evidence. In a traffic accident claim they may be marks on the road or damage to the vehicle suggesting how a collision happened.
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There is an exception where notes are not made until after a period of crisis and the exact details may be open to dispute. For instance when things suddenly go wrong during labour, midwives and doctors may not be able to make notes until after the baby has been born and is breathing properly. Sequences and timings may be approximations and open to dispute. In these claims, working out exactly when everything happened may be crucial.
We generally learn about people from how they behave. But it may not be quite as important as we think. Again the Court of Appeal commented, 'This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the 'demeanour' of a witness.' That is a good thing because forming judgments of people is very subjective. We may warm to one person but not to another. Psychologists refer to the 'halo effect'. If we like a person, we are more inclined to accept what they say. But a person may be likeable without being truthful. An unconscious bias is at work.
I would add 2 more rules of thumb. The first is that the more detailed a record, the more persuasive it is likely to be. A very brief GP record without an adequate note of the history taken or the examination performed will not convey the impression of a thorough GP (although she may have been). The second is that the more people who have taken the same information independently and recorded it, more likely they are to be correct. But it is important that they have taken the information independently. There are instances where an incorrect story is recorded at the outset and repeated by people who have read the incorrect note. Mere repetition of information not derived independently should not increase credibility.
As one judge warned that our views of people can be 'distorted through the prism of prejudice' . Assessing the Witness: Tests of Truthfulness So how can one test the truthfulness of a witness if demeanor is an unreliable guide? In a 1968 House of Lords case, Lord Pearce pointed out that assessing credibility involved a number of questions :
So the first 2 stages in assessing witness evidence at to view it against the background of agreed facts and 'incontrovertible evidence'. Evidence is often 'incontrovertible' because it is established by contemporaneous documents. To be persuasive, witness accounts will as a general rule need to be consistent with those documents.
1. Is this witness is a truthful or untruthful person?
Assessing the Witness: Demeanor How a witness comes across in the box is important.
4. Even is the honest witness correct in what he thinks
2. Is the witness telling the truth on this issue? (An untruthful witness still tells the truth sometimes.) 3. Has the witness remembered correctly? Or has his recollection been altered by unconscious bias or wishful thinking.
MISS JANE OLVER CONSULTANT OPHTHALMIC SURGEON, EYELID & LACRIMAL SPECIALIST BSc, MB, BS, DO, FRCS, FRCOphth
Mr Robert Hensher BDS, MRCS LRCP, MB ChB (Hons), FDSRCS, FRCS, ATLS
Ms Jane Olver is a Consultant Ophthalmic Surgeon, Eyelid & Lacrimal specialist, based in London.
Consultant Oral and Maxillo-Facial Surgeon
She has an excellent knowledge of Ophthalmology having has been a Consultant Ophthalmologist and Oculoplastic Surgeon at Imperial Healthcare NHS Trust, London, since 1994.
Mr Robert Hensher is one of the most senior maxillofacial surgeons in London and the U.K. He has retired from clinical practice but continues with medico-legal and expert witness roles
In March 2008 she founded Clinica London, with the aim of providing a rapid access, high quality, private eye Clinic. Since August 2014 she has worked full time at Clinica London after resigning from the NHS. She is the Medical Director of Clinica London.
He can act as an expert witness, including the preparation of medico legal reports and appearing in court, in all cases relating to this area. Mr Hensher’s subspeciality interests include dental implantology, salivary gland surgery and temporomandibular joint replacement.
Ms Olver has expertise as a general ophthalmologist, with special interest in oculoplastic, eyelid, lacrimal, conjunctivitis, blepharitis, red eye treatment, dry eyes treatment, corneal abrasions and cosmetic eye surgery. Her main area of specialism is endoscopic lacrimal surgery for watering eyes in adults and children (although not infants.) Ms Olver does not cover non accidental injury.
In this connection his practice enjoyed a national and international reputation and he is regarded as pioneering TMJ replacement in the UK.
Ms Olver runs the Aesthetic Medicine and Surgery side of Clinica London as well as seeing many patients with eye, eyelid and tearduct problems.
Mr Hensher has published in peer reviewed journals and has written a chapter in a contemporary maxillofacial text book regarding temporomandibular joint prosthetic replacement.
CONTACT DETAILS Tel: 0207 935 7990 Email: jane.olver@clinicalondon.co.uk Website: www.clinicalondon.co.uk
Contact: The King Edward VII Hospital Beaumont Street, London W1G 6AA Telephone: 020 7467 3236 (Mrs Jackie Sorrell) RH mobile: 07836 540457 Email: roberthensher@gmail.com
Clinica London 140 Harley Street, London, W1G 7LB
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he saw? Or is it more likely that he made a mistake?
Conclusions So in assessing witness evidence, how does the judge know who to believe? I have set out some principles considered by the courts in reported cases and suggested some other principles which guide me. The starting point is agreed facts. The next layer is 'incontrovertible evidence', facts for which there is good evidence independent of human memory. With that as a base, there are then some tests of witness credibility which go beyond demeanor.
These break down the issue of credibility into parts. But they do not help the judge work out whether a witness is honest or not. Lord Bingham suggested 5 tests to assess the honesty of a witness: 1. Consistency of the witness's evidence with what is agreed or clearly shown by the evidence to have occurred (and this is what I have referred to as the first 2 layers); 2. The internal consistency of the witness's evidence;
Put in diagrammatic form, there is a hierarchy of factors which could set out as the pyramid below.
3. Consistency with what the witness has said on other occasions; 4. The credit of the witness in relation to matters not germane to the litigation; and 5. The witness's demeanour.
Witness evidence
There are others relevant factors. One is motive. A witness who has nothing to gain from the evidence may be more compelling than one suspected of an ulterior motive. That does not of course mean that a party giving evidence in support of their case is assumed not to be telling the truth.
incontrovertible evidence Undisputed facts
As a general rule a simple story is often more persuasive than a complex one. Again that does not mean that the more complex story is not correct. But a simple story will often appear more coherent. And a longstanding principle of philosophy is that when assessing different answers to a problem you should normally favour the simplest ('Occam's razor').
Paul Sankey is a solicitor and partner at Enable Law, specializing in clinical negligence claims for patients. https://www.enablelaw.com/team/paul-sankey/ Many thanks to Paul and Enable law, for permission to reprint this article.
Mr Andrew Wojcik Orthopaedic/Spinal Surgeon (Consultant Orthopaedic Surgeon) MD, PhD, FRCS I am a Consultant Orthopaedic/Spinal Surgeon, twenty four years at Hinchingbrooke Hospital retiring from the NHS service in 2017; at present working in the independent sector at the Spire Cambridge Lea Hospital and Fitzwilliam Hospital in Peterborough.
Issues of Medical Negligence in the fields of General Internal Medicine, Endocrinology and Metabolic Bone Disease. Life expectancy issues within this general area wherever possible using data published in medical literature.
Main interest in the area of spinal surgery, spinal injuries, degenerative conditions and deformities. I have presented papers at many international meetings, as well as in Poland, in which language I am fluent.
I have over 20 years experience of Medico-legal work and over 30 years experience as a Physician working within the NHS Contact: Dr Michael Davies Consultant Physician MB., FRCP Tel: 01625 430 197 Email: dr.m.davies@btinternet.com, or michael.davies@mft.nhs.uk
I have over twenty years experience in medico-legal work in the UK, specialising in a broad spectrum of spinal problems, low velocity and whiplash injuries. I have undertaken specific Expert Witness training and been awarded the Bond Solon Certificate.
Area of work: Greater Manchester and Cheshire Address: Dept of Medicine & Rehabilitation M7 Office Manchester Royal Infirmary Oxford Road, Manchester M13 9WL
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Orthopaedic Surgeon PO Box 1148, Peterborough Cambs PE2 2GZ
Alternate Address: 24 Walton Heath Drive Macclesfield Cheshire SK10 2QN
Contact: Mrs Rebecca Wheeler Tel: 01733 203 332 Fax: 01733 205 332 Email: rjwheeler1@aol.com
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Will the Court Allow a Change of Expert Before Trial? by Hazel Puckering , Levi Solicitors LLP Expert evidence is used in many disputes (from personal injury to commercial disputes, property to professional negligence). Experts are there to give their opinion to the parties, and to assist the court when the case involves matters on which it does not have the right technical or specialist knowledge. In some cases, both parties will have their own expert witnesses; in others, the parties will jointly instruct one expert between them.
unfavourable to the claimant. The court refused the claimant permission to instruct a new expert at a late stage in the proceedings.
So what happens if you want to change your expert? In the recent case of Wright v First Group plc (2018) the High Court permitted the claimant to change its expert just a week before trial. Such a decision is unusual, and the judge commented that it should not be relied on as precedent.
Adams and others v Allen and Overy and others (2013) The original expert indicated that he was no longer willing to act after providing a pre-action report and engaging in correspondence with his opposite number. The claimant applied for permission to instruct a new expert.
In this article, we look at the rules relating to changing an expert. We also take a look at Wright and other cases where a party has wanted to change an expert during proceedings.
The appeal court emphasised that where an expert had had significant involvement in the matter before proceedings were issued, some reason would usually need to be shown for changing the expert and that reason should not be obviously bad. As the expert was unwilling to give evidence, the court permitted the claimant to instruct a new expert.
When considering an application to change experts, the court must exercise its discretion. In this case, instructing a new expert would lead to a significant delay in proceedings, which might have a harmful impact on the possibility of a fair trial. Further, the overall costs burden would be disproportionate.
Applying for permission A party cannot rely on expert evidence unless the court has given permission. The court will restrict expert evidence to that which is reasonably required to resolve the proceedings, and it must genuinely ‘help’ the court.
Clarke v Barclays Bank Plc (2014) The claimant’s expert retired after completing his report. However, the claimant’s solicitors did not inform the court of this position for some months, until they needed to apply to for permission to use a new expert. The court held that this conduct was an abuse of process and denied permission.
‘Where practicable’, a party should name its proposed expert in its application. There is a risk here that if a party later wishes to change a named expert, its opponent may apply for a conditional disclosure order, requiring the disclosure of the first expert’s report.
Lee v Colchester Hospital University NHS Foundation Trust (2015) The defendant became aware late in the day that his original expert, though still practising privately, had been dismissed from the NHS. The defendant was therefore concerned that this compromised its expert credibility. Here, the judge permitted the defendant to change expert two weeks before trial.
Parties must make their application to call an expert in a timely manner, and not too close to the trial date. Where a party makes an application that risks an adjournment of the trial, the court is unlikely to grant it. Changing your expert An expert’s primary duty is to the court, rather than to the party who has instructed him. As such, the court and the opposition will often treat a request for a change of expert with suspicion. We set out some examples of cases where a party has applied to change its expert.
Although the defendant made the application late in the day, it made it as soon as it realised that it needed to. The defendant made the application soon after the parties exchanged experts’ reports; there was a genuine reason for making the application; had a prospective application been made, it would have succeeded; and the reason for the expert’s dismissal would have been of interest to the trial judge and might well affect his credibility.
Guntrip v Cheney Coaches Ltd (2012) The claimant brought a personal injury claim against his employer. The experts’ joint statement was EXPERT WITNESS JOURNAL
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change of view in the joint statement. The judge also commented that there was a lack of clarity about the expert’s view. He further suggested that the claimant would be at an unjustified disadvantage if he did not allow a change of expert. In this case, the court allowed the change of expert only a week before the trial.
Clintas Corporation No. 2 v Rhino Enterprises and others (2015) A change of expert was permitted when it was found that there had been “inappropriate and indeed improper conduct” by the expert. The expert claimed that he had signed the wrong version of a report that did not include his amendments. However, it was later discovered that the amended version had been created after the expert had signed the original report.
In summary, the court is only likely to permit a change of expert where there is good reason. Further, it will need to see that the change in expert is not going to adversely affect the trial date. The decision on who to appoint as expert in the first place, is therefore vital. Our litigation team will advise you every step of the way.
Murray v Martin Devenish (2017) The Court of Appeal allowed the claimant to rely on the report of a new expert. The court had previously dismissed the appeal. This was on the grounds that allowing the claimant to rely on a new expert shortly before trial would risk potential disruption to trial preparation and losing the trial date. However, there was a stay in the proceedings and two years later (before the new trial date was fixed) the balance of justice had changed and the change was permitted.
Many thanks to Levi Solicitors LLP for permission to reproduce this article.
Wright v First Group plc (2018) Wright is a personal injury case where the claimant had suffered life-threatening and life-changing injuries. The expert had expressed a view in the joint statement that was detrimental to the claimant’s case on liability. The expert failed to account for his
Levi Solicitors LLP www.levisolicitors.co.uk
Mr Amarjit Anand
Consultant Trauma & Orthopaedic Spinal Surgeon MBBS, BSc(Hons), MRCS(Eng), MSc, FRCS(Tr&Orth) Mr Anand is a Consultant Trauma & Orthopaedic Spinal Surgeon, based at Epsom & St Helier University Hospitals NHS Trustand at the South West London Elective Orthopaedic Centre (SWLEOC). Mr Anand has prepared personal injury reports for the court since 2016. He is fully compliant with the CPR rules and has received training in the preparation of medico-legal reports. He receives instructions from Defendants (50%) & Claimants (50%). Areas of expertise include, • Mr Anand is a specialist in Spinal Surgery. He manages all aspects of spinal injuries and disorders (neck, thoracic spine, low back pain) • All aspects of Orthopaedic trauma & musculoskeletal injuries. • Mr Anand provides Personal Injury reports for solicitors & insurance companies. Contact: Andre Goncalves (Secretary) Tel: 0203 488 2781 Email: surreyspine@gmail.com Address:124 Brancaster Lane, Purley, Croydon CR8 1HH Area of work: London and Surrey
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The Importance of Researching Other Party’s Expert Witnesses (Kimathi and others v Foreign and Commonwealth Office) Dispute Resolution analysis: Colm Nugent, barrister, of Hardwicke chambers, examines the High Court’s refusal to grant the claimants permission to adduce in evidence chapters of a book written by a defence witness which they suggested conflicted with the evidence he had given. This article was originally published for LexisNexis PSL. A Mr Milbank was called as a witness for the defendant Foreign and Commonwealth Office in June 2017. He was also, as was then apparently unknown to the claimant’s legal team, an author of a book about Africa published in 2000.
Kimathi and others v Foreign and Commonwealth Office [2017] EWHC 3054 (QB) What are the practical implications of the decision? This unusual application flags up the necessity of undertaking research, especially with regard to an expert witness. A failure to do so timeously may result in potentially relevant material not being put to that witness when information concerning the witness is subsequently discovered.
The claimants’ legal team discovered the existence of the book after he had completed his evidence and, having read it, wished to cross examine another of the defendant’s witnesses on the content of the book. It notified the defendant of this some two-and-a-half weeks after Mr Millbank had given his evidence.
What was the background? The application arose out of an uncommon set of facts involving a very long-running case in which multiple interlocutory applications have been its hallmark. The case involves 25 test claims out of a claimant pool of 40,000, and concerns alleged mistreatment and detention in Kenya by the British colonial government in the 1950s. Proceedings have, to date, been running for more than eight years. EXPERT WITNESS JOURNAL
The judge halted the cross-examination, and invited the claimants to initially identify, in writing, the nature of the questions to be put regarding the book. The claimants did so and their questions concerned the knowledge that the defendant had of the book and its content ahead of Mr Milbank’s evidence.
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For example, a medical expert giving an opinion on the impact of head injury on the incidence of later dementia, may have written a paper on the same topic some time previously advancing a very different opinion to the one in his or her expert report before the court.
The defendant declined to answer on the basis that the book was not a disclosable document and the questions concerning knowledge were privileged. The claimants sought to adduce various chapters in the book as evidence, and the defendant objected. The essence of the claimants’ application was that the book content contradicted Mr Millbank’s account in evidence, although the precise nature of that conflict was not, somewhat surprisingly, addressed in the application.
Mr Milbank’s book was for general sale, and not some obscure academic text. The judge was satisfied it did not require much time or effort to ascertain that he had in fact written this book, and it seems he spoke about his having written the book outside court. Accordingly, the failure to find out about its existence was that of the claimants’ legal team, who did not apparently think to do a standard Google search on the witness.
The claimants also asserted potential prejudice, absent admission of the book chapters into evidence. However, again very surprisingly, the nature of that prejudice was not elucidated upon. What did the court decide? The judge refused the application on the basis that the claimants had failed to:
But the reason the application was refused was a succession of failures thereafter. The claimants waited some time before even raising the cross-examination point. When they eventually made the application, the claimants failed to identify to the court why the evidence was important, and what aspect of the evidence justified the obvious disruption to the court timetable the admission of the evidence would involve. Mr Milbank would clearly need to address points made in a further statement and be recalled, for example.
Explain why the chapters were so material to their case Explain why the absence of the chapters would cause them prejudice and the nature of such prejudice Explain what steps, if any, they had taken to research the witness’s background and in particular his authorship, which was easily ascertainable on any Google search and which they did not raise with him when he gave evidence but were instead intending to ask a different witness about some weeks later
It may have been possible for the claimants to overcome the delay point if the court was persuaded that the evidence was so compelling that a refusal to admit it would unfairly prejudice the claimants’ case. In other words, if the evidence’s probative value outweighed its prejudicial effect in the classic balancing exercise.
Apply timeously even if they had only discovered his authorship very soon after he gave evidence In addition, the judge was concerned that the application was made late in the context of the proceedings as a whole. This would have an adverse impact on conduct of the action and would require, for example, yet more witness evidence to be prepared. The judge’s decision was therefore heavily reliant on the operation of the overriding objective and the need to conduct litigation efficiently, and making best use of the court resources.
But the claimants were unable, or perhaps unwilling for tactical reasons, to furnish the court with sufficient material to understand the importance of the evidence beyond the fact it was not wholly irrelevant. A small aspect of the application was the persistent failure of the claimants to spell the name of Mr Milbank correctly, emphasised by the repeated use of the judicial ‘sic’ in the judgment. Undoubtedly a small matter, but such errors may give the impression of an application which has not been prepared as carefully as it ought to have been.
Practitioners should note that although the application arose in unusual circumstances in a most unusual case, the circumstances giving rise to the application could just have easily been in the context of a personal injury case, a surveyor’s negligence case or clinical negligence claim.
And in court, impressions count for a lot. Interviewed by Robert Matthews. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
It may be assumed that the claimants wished to undermine Mr Milbank’s evidence by reference to something inconsistent in his book on Africa written some 16 years previously. And one can imagine many circumstances in which a party would wish to question an expert (although it is not clear if Mr Milbank was called in an expert capacity) on the basis of publications or papers written previously. EXPERT WITNESS JOURNAL
Many thanks to Colm Nugent at Hardwicke and LexisNexis PSL for permission to publish. www.hardwicke.co.uk - www.lexology.com
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Dr Aidan Horner from the University of York wins the Spearman Medal An expert on one of the most mysterious and personal aspects of human cognition is to receive an important Society award. Dr Aidan Horner from the Department of Psychology at the University of York is the winner of the 2018 Spearman Medal, which is awarded by the Society each year to someone who has produced outstanding published work in psychology within eight years of completing a PhD.
“I am indebted to Neil Burgess for providing the supportive environment for this, at first more exploratory, research to develop.” Nicola Gale, President of the British Psychology Society, said: “Dr Horner is a remarkably creative, sophisticated and productive psychologist who has already made critical contributions to the fields of memory, vision and spatial navigation. I congratulate him on his award and shall follow his career with interest.”
Dr Horner’s research has revealed the psychological and neural mechanisms behind our ability to look back in time and re-experience previous life events. This subjective experience of recollection is fundamental to our sense of self, helping to support our mental autobiography.
Read the two journal articles that were submitted as part of Dr Aidan Horner’s nomination:
His work has combined experimental rigour with deep theoretical insight, in terms of both cognitive and neural mechanisms.
• Horner, A.J., Bisby, J., Bush, D., Lin, W-J., & Burgess, N. (2015) Evidence for holistic episodic recollection via hippocampal pattern completion, Nature Communications, 6:7462. https://www.nature.com/articles/ncomms8462
Dr Horner has explored our ability to reconstruct whole memories from fragmentary details – when we remember someone’s face we can go on to remember the last time we met them, what was said and the music that was playing in the background.
• Horner, A.J., Bisby, J.A., Zotow, E., Bush, D., & Burgess, N., (2016) Grid-like processing of imagined navigation, Current Biology, 26, 842-847. http://www.cell.com/currentbiology/fulltext/S0960-9822(16)00124-X
At the UCL Institute of Cognitive Neuroscience, he developed sophisticated experimental procedures and statistical models to assess this holistic retrieval for memories of complex events at a behaviour level, allowing such retrieval to be studied in a more objective way.
Graham Rogers & Associates Limited Consultant Psychologists
Using fMRI, Dr Horner went on to reveal the relationship between the hippocampus, a brain region critical to episodic memory, and the neocortex. He provided key evidence for a long-held computational account of episodic memory that explains how the brain supports our ability to recollect an entire event. His most recent work has employed virtual reality and fMRI to investigate the role of recently discovered ‘grid cells’ in imagined movement around an environment.
M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS
Experience and Expertise in Psychological Assessment Experience at The Central Criminal Court, providing reports and live evidence. Qualified as a Psychologist for over 26 years’ Former Head of Department Experienced within both the NHS & Local Government
Dr Horner said: “I am delighted to receive this award, and still somewhat in shock. It is wonderful that the research my colleagues and I have worked on for the past few years has been recognised in this way.
Experienced in working with offenders within the community Contact: Mob: 07952 170 627 Email: info@grahamrogers.org.uk Web: www.grahamrogers.org.uk
“The experimental and modelling approach developed during this work is now proving useful in tackling further questions about memory, relating to forgetting, and how we integrate across separate but related experiences. EXPERT WITNESS JOURNAL
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The Psychology of Legal Communication: The role of ‘intentionality’ and ‘micro-skills’ by Koch HCH, Newns K & Strachan R Figure 1 – The Key Players in Civil Litigation
The Interface between Psychology and Law The interface between Psychology and Civil Law has begun to be better recognised in the UK, aided significantly by publications in this journal (1,2) The field of ‘psychology and law’ is now recognised as an important area of practical legal study aiming to understand and enhance justice in criminal, civil and family contexts (1). Every area of psychology (e.g. forensic, social, clinical, cognitive) is relevant to some aspect of law. The relationship between the two disciplines has expanded and deepened over the past 40 years with considerable opportunity on both sides. Both professions, Psychology and Law, aim at ‘uncertainty avoidance’ in searches for truth and justice. Uncertainty is intrinsic to the scientific and legal processes. Many issues confronted by the legal system are inescapably psychological and relate to all the key players in civil litigation (Figure I). EXPERT WITNESS JOURNAL
Contemporary 21st Century Therapeutic Jurisprudence, which addresses the culture of the legal 46
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process, was developed by Wexler and Winick (3), in the US in the 1980’s and is based on the practical premise that findings from the behavioural sciences, predominantly psychology, can inform and improve how litigation is carried out. More recently, professionals working in the civil justice system in Europe (4,5) have addressed how psychology and law can constructively interact.
Figure 4 (below) – Court Hearing Trail (b)
For example: • Individual, idiographic approaches to assessing claimant trauma and distress • Systems or organisational approaches to how the civil courts operate • Ways to enhance claimant responsiveness and satisfaction with services received • Process improvement in expert skills and ‘expert-other’ interaction • Total Quality Management in law firms, the courts and medico-legal agencies • Dispute/conflict resolution via the innovative Joint Statement process, and A.D.R.
Starting at the point of a personal injury event such as a road traffic accident or work accident through to the conclusion of litigation, there are many psychosocial processes involving claimants, lawyers, medical experts, barristers and the judiciary which can affect any one particular case and assessment of damages. The main branches of psychology which are applicable to different aspects of the medico legal trail and are illustrated in Fig. 5 below: Fig 5 (below) – Branches of Psychology.
The field of psychology and law within the context of civil justice suggests many areas for professional, inter-disciplinary and research-oriented investigation. Figure 2 - 4 below indicates three of the medico-legal relevant to this discussion. Figure 2 (below) – The Medico-Legal Trail
These branches are summarised below: a) Clinical: The understanding of a claimant’s personal injuries in terms of diagnosis, attribution and prognosis in study; the formulation of treatment recommendations. b) Social/Communication: The understanding of interpersonal communication between claimant and professional, and between professionals; the behaviour of professionals in group situations e.g. case conferences and court hearings.
Figure 3 (below) – Court Hearing Trail (a)
c) Organisational: The behaviour and interaction of professional lawyers in law firms and court settings; the wellbeing and the resilience of lawyers. d) Occupational: The understanding of legal and medico-legal work processes; time, people and paper management; process improvement. e) Cognitive: The understanding of how thoughts and ‘schemas’ of claimants and professionals affect their outlook, attitudes and behaviour, and the specific area of neurocognitive processes including memory and attention. f) Conflict Management: The understanding of why legal and medico-legal conflicts exist and how best to
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resolve them, via the theme of advanced face-to-face and written communication skills.
and friendly, Empathic and genuine (early on) Business-like (later on)
The Psychology of Communication: What is it? At several of the steps in the medico-legal ‘trail’, and the court hearing trails it is crucial that the lawyer communicates effectively with other legal and clinical professionals. For example, he/she needs to understand how a medical expert uses classification schemes, assesses severity and pre-existing injury/symptoms and, through experience, appreciates the multi-dimensional approach that each expert utilises to assess reliability and truthfulness.
c. Decisiveness: Active, ‘bias for action’, Initial contact and action, not passive d. Independence: Open and honest attitude towards insurer, Direct manner contacting medical experts e. Expertise Information giving about litigation process and eligible damages, Efficient not careless. It is crucial that the legal professional communicate effectively with each other. E.g. the expert needs to understand the lawyer’s need for definitive and logical opinions on which they can base quantum assessments.
The lawyer will be faced with plenty of opportunity to communicate with claimants and other legal professionals in written form, telephone and face to face contact, Lawyers have a high level of communication skills utilising some or all of the micro skills of effective communication resulting in their contact being productive and effective.
Micro skills of Effective Communication Lawyers have a high level of communication skills utilising some or all of the micro skills (15) of effective communication (see figure 8 below) resulting in their contact with experts being much more productive.
In particular, lawyers need to be: • Accessible by telephone or email, and not play the ‘busy’ card (e.g. I’m preparing for court; I’m in conferences all week) - short but important phone calls which take a maximum of 5 – 10 minutes can be made over a 24 hour period including out-of normal hours.
Figure 6 (below) - Micro skills of Effective Communication
• Correspondence over difficult or contentious matters can be undertaken in a pleasant (if formal) manner and style, preferably with clear focus on what ‘next step’ either party could take which would be helpful or beneficial. In principle, Lawyers should maintain a high level of accessibility in order to encourage and not hinder rapid process and resolution of litigation. Positive Lawyer-Client interaction was explored by Elbers (14) in a Netherlands based centre of Law and Health.
More training and professional development opportunities are needed to improve knowledge and understanding of psychological process by legal professionals.
Their main points were: 1. Positive characteristics for Lawyers were empathy, discussion, independence and expertise, in both areas of Procedural Justice (getting things done; the way decisions are made) and Therapeutic Jurisprudence (involvement of clients; empathy; care).
At several steps in the medico-legal ‘trail’, it is crucial that the expert and lawyer communicates effectively with their chosen client or colleague. The expert witness will be faced with plenty of opportunity to communicate with experts and lawyers in written form, telephone and face to face contact. They need to have a high level of communication skills utilising micro skills of effective communication.
2. Lawyer dis-engagement (i.e attitude and poor communication) was one predictor for worse claimant recovery. As a result they stated that the following skills or ‘preferable lawyer characteristics’ were the beneficial application or display of:
Experts should maintain a high level of accessibility to lawyers in order to encourage and not hinder rapid process and resolution of litigation.
a. Communication: Client involvement, Information provision, Client-preferred mode of communication and frequency (every 2 months minimum)
Experts and Lawyers need positive characteristics of empathy, discussion, independence and expertise, in both areas of Procedural Justice (getting things done;
b. Empathy: Compassionate, interested, accessible EXPERT WITNESS JOURNAL
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the way decisions are made) and Therapeutic Jurisprudence (involvement of clients; empathy; care).
tion (managing expression of feelings). Manage sympathy/empathy interface. Understand internal conflictual feelings. Maintaining focus on opinion and its implications.
The specific and crucial area of impartiality and neutrality, which is key for all legal and medico-legal professionals has been recently discussed (16) with its emphasis on emotional intelligence and impartiality micro skills.
Skills Interaction: Develop emotional intelligence. Display logical neutrality and impartiality. Resolve conflicts in neutral way. These are all summarised in Fig. 10 below: -
What are the social skills of impartiality? We know that an expert or legal opinion must be robust and able to tolerate, withstand and react to the challenges of debate, opposing side’s expert and legal opinion, at various stages of the litigation trail. Such as: 1. Claimant examination and re-examination 2. Meetings run by counsel 3. Attendance at court 4. Case conferences 5. Between-Expert discussion (joint statement discussion) 6. Cross examination in Court or deposition. These stages and many others require a high level of effectiveness and advanced communication skills from expert and lawyer alike. These can be measured as a general expert impartiality trait but a necessary training and development requirement is the subdivision into its consistent micro skills, similar to the Ivey method which was originally applied to the counselling and therapy skills back in the 1970’s. Inherent in the Ivey Micro skills approach was the learning to be ‘intentional’ about utilising communication skills. The person needs to know and be aware of using any one particular micro skill when doing so.
Intentionality and Microskills: The Role of Training and CPD In order to be able to interact and deal completely with many people in many different legal situations, professionals need to be flexible, learn new ways to interact and understand one’s ways of ‘being’ with others. Legal professionals we meet have multiple issues and concerns. ‘Intentionality’ is a core goal of effective communication, and results from being aware of our own responses and possible responses and their effects and outcomes – it means understanding our competences and deciding from a range of alternative communication-based action. To begin with, our understanding of the micro-skills hierarchy shown in figure 10 and 11 (the pyramid for building intentionality) is crucial.
From an analysis of 40 expert witness psychologists through peer supervision, case discussion and general inter-professional debate, the following key social skills, of impartiality have been identified (16): Non-verbal attending: Sitting still, observing and listening. Encouraging the other person to ‘open-up’
Understanding the psychology, the human factors, which are relevant to the many aspects of the medicolegal trail is crucial – within this, interpersonal communication is of paramount importance. Some examples of this are shown below in Figure 11: -
Active Listening: Using questions and summarising to encourage the claimant to repeat his/her ‘story’ to maximise the ability to detect consistency or inconsistency. Reflecting or paraphrasing information to clarify what the claimant is communicating. Identifying sources of bias (actual or potential). Displaying sincerity, integrity. Avoid interrupting. Use paraphrasing and summarising accurately. Influencing Skills: Maintaining empathy but not agreement (or disagreement). Withholding knowledge where appropriate to encourage claimant selfdisclosure. Being even-handed and fair. Building and maintaining trust. Avoiding displaying participating or bias. Treating own and others views equally (time; emphasis; interest). De-personalising debates. Complex Skills: Emotional Self Awareness (identifying bias, over-identification). Emotional self regulaEXPERT WITNESS JOURNAL
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the interface between Law (and legal systems) and psychology in the context of civil cases and litigation, and thereafter to provide education to legal students and practitioners on these issues. This collaboration should inform the scientific, medical and psychological communities on the one hand, and legal communities on the other, and also the public, about current research and practice in the area of science and law (18).
Conflict Resolution One key aspect of the litigation process is ‘conflict resolution’ via a negotiated settlement, hearing process, joint statement or Alternative Dispute Resolution (ADR). All these processes involve, at some stage, certain key communication micro-skills such as: 1) Identifying and clarifying mixed messages 2) Understanding incongruity in messages 3) Managing conflictual communication
Civil courts admit evidence from health care experts in order to assess injury and determine quantum. It points to a need for Law and Psychology to address the use of science, and both sectors’ narrow constructions of rationality and logicality which can often have the effect of divorcing science and ‘facts’ from their psychological and social context (19).
These are summarised using the adapted Ivey Micro skills Model in figure 12 below: Figure 12: Micro Skills Hierarchy (adapted from Ivey, Ivey & Zalequat, 2014)
Both lawyers and psychologists groups have significant expertise to increase the understanding of how these two areas (Law and Psychology) interact in the modern legal world and to promote policies which clarify and solve legal-oriented challenges. Multidisciplinary research and education can make a major contribution to the generalisation and dissemination of medico-legal knowledge and, as a result, improve the decision-making processes undertaken by judges, lawyers, jurors and scientific/medical experts. Both US & UK legal frameworks and practices have an inbuilt uncertainty which individuals and professionals have a variable tolerance of and ability to manage, especially after evaluating contentious scientific evidence in legal claims. This issue of uncertainty tolerance is nowhere better exemplified than in the two crucial areas of credibility assessment and judicial decision making. These two areas and the emphasis on legal communication is currently under investigation by the first author and his colleagues, plus colleagues in the Law School, Birmingham City University.
How can confrontation management help you? Although all communication skills are concerned with understanding and facilitating change, it is the confrontation of discrepancies that acts as a lever for the resolution of claims within our adversarial legal context. Most legal professionals come to a meeting seeking some sort of movement or change. Yet, at times, they may need to move beyond their issues to realise a wider solution. Confrontation is basic to helping this process.
In addition, the first two authors are investigating the differences between the UK and USA system in the use of negotiated settlements using cross-expert discussions. References
Knowledge and skill in confrontation result in the following: u Increased ability to identify incongruity, discrepancies, or mixed messages in behaviour, thought, feelings or meanings.
1. Koch HCH, Palmer H, Reay K (2017) The Interface Between Psychology & Law: Continuous Improvement in Claimant, Lawyer and Expert’s Experience. Expert Witness Journal. Spring.
u Ability to increase talk with a view toward explanation and/or resolution of conflict and discrepancies.
2. Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.
u Ability to identify change processes occurring during the meeting, using confrontation skills.
3. Wexler D and Winick B (1996) Law in a Therapeutic Key. Durham.
u Ability to utilize confrontation skills as part of mediation and conflict resolution.
4. Koch HCH and Diesen C (2015) Contemporary 21st Century Therapeutic Jurisprudence in Civil Cases: Building bridges between Law and Psychology
It is important that both academic and practitioner groups are active in promoting the understanding of EXPERT WITNESS JOURNAL
5. Koch HCH, Diesen C, Boyd T, Hampton N (2016) 21st Century Agenda for the Justice System: Therapeutic
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Jurisprudence and Total Quality Management. Solicitors Journal. January.
ing in Personal Injury Litigation. Mathews Open Access Journal. April 2016.
6. Koch HCH (2017) Special Edition on ‘Trauma & its medico-legal implications’. Mathews Open Access Journals, 2, 1 – 11.
14. Elbers NA, Akkermann AJ, Cuipers P & Bruinuels (2012) Procedural Justice and Quality of Life in Compensation Process. Injury. Nov. 44 (11) 1431-6.
7. Koch HCH, Cleary A, Mackinnon J & Willows J (2017) Chronic Pain and Understanding the Interplay between Orthopaedic and Psychological Aspects: A Case Study. MOJ Public Health. May 2017.
15. Ivey A (1971) Micro counselling: Innovations in Interview Training. Servingfield, Illinois. 16. Koch HCH, Humphreys K, Byram V, Livingstone L, Wilson S (2017) Communication Psychology in Civil Law: The micro skills of impartiality and neutrality. Expert Witness Journal. December 2017.
8. Koch HCH, Elson PA (2017) Impartiality of medico-legal experts. The Expert Witness Institute Newsletter. Spring 2017.
17. Ivey AE, Ivey MB & Zalaquett CP (2014. Intentional interviewing and counselling: Facilitating client development in a multicultural society (8th ed.). Belmont CA: Cengage Learning.
9. Koch HCH, Akehurst L & Easton S (2017) Judging Credibility of a Road Traffic Accident claimant. Journal of case reports and studies. Annex Publishers. April 2017.
18. Cooper SL (2016) Forensic Science Identification Evidence. Journal of Philosophy, Science and Law. 16: 1-35.
10. Koch HCH & Diesen C (2017) Koch HCH (2017) Therapeutic Jurisprudence – Continuous Quality Management and Positivity in the Civil Justice System in Sweden and UK. MOJ Public Health. February 2017
19. Koch HCH, Hampton N, Midgley S and Tanner R (2017) Current Developments on the Interface of Psychology and Law in Civil Justice: Reconciling Law, Science & Policy. J Psychol Cognition. 2(2): 83-85.
11. Koch HCH, Court K, Bates S (2016) Medico-Legal Implications of Assessing Unreliability in Civil Compensation Cases: A Case Study Reflecting Potential Unreliability. Scholarena SAJ Case Reports. February 2017
All authors can be contacted via www.hughkochassociates.co.uk.
12. Koch HCH, Carleton RN, Cosway R (2017) Investigating Expert Witness Uncertainty: A Single Case Study Approach. CP Case 1(1), 1-4
For correspondence, contact Professor Hugh Koch at Hugh Koch Associates, Festival House, Jessop Avenue, Cheltenham, GL50 3SH or at hugh@hughkochassociates.co.uk
13. Koch HCH (2016) Medico-legal case commentary: Interface Between Clinical Opinion and Legal Case Report-
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Hugh Koch Associates offer expert witness services including psychological, neuropsychological, orthopaedic, and pain Assessments. We offer a rapid assessment of specialists and experts throughout the UK who have been involved in one of the following situations:
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Personal Injury Types of situation: Road Traffic accidents (car, bike, lorry, pedestrian) Train Accidents (driver, passenger) Work Accidents Medical Accidents Assaults Emotional, Physical and Sexual Abuse Natural Disaster Accidents Refugee and Asylum Seeker
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The Difficulties with Borderline Capacity by Giles Eyre and Linda Monaci The issue of the mental capacity of a claimant during or at the conclusion of injury litigation may arise from a condition pre-dating and independent of the accident or event that is the subject of the claim, or the condition may be the result of the accident or event, or, as in this paper, a combination of both.
Case study: Ms D. suffered a preventable subarachnoid haemorrhage (SAH) at age 45, which left her with a degree of cognitive, physical and emotional symptoms. At the time of the index event she lived with her partner and their 17-year old daughter; she worked part time in a warehouse. She brought a claim for negligence against the healthcare provider.
Section 2 of the Mental Capacity Act 2005 provides that “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” The burden of proving lack of capacity is on the person asserting such lack. Section 1 of the Mental Capacity Act 2005 provides that “(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.” These latter 2 provisions can be challenging to apply to the facts of a case. EXPERT WITNESS JOURNAL
On discharge from hospital she was reported to be able to wash, dress and safely cook a meal with minimal physical restrictions. Subsequently she had some community neurorehabilitation and on numerous occasions was referred for psychological support due to mood disturbances and prescribed antidepressants. Neuropsychological assessment 18 months after the index event, Ms D. reported that since the index event she had been unable to live independently, needing considerable help, for instance to organise and carry out shopping, cook52
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ing, dressing. Her partner attended the appointment with her and he also (consistently with her self-report) indicated that she could not live independently and that he now supported her including in all financial matters. He reported that he had to give up his job as a building contractor to become her carer and had recently applied for Carer’s Allowance. Ms D, now medically retired, received a small work pension and state benefits. All spare income was spent in funding the partner’s on-line gambling which appeared to take up much of his time.
tive testing results could not be relied on (because of the failed effort tests), all other information consistently indicated that since the index event she had difficulty in maintaining goals and this was consistent with executive problems, impacting also on her social and interpersonal functioning. When the neuropsychologist asked questions aimed at understanding her ability to manage finances, Ms D. reported to be completely independent and having no problems. However, when Ms D’s partner was interviewed (separately), he reported that Ms D. needed support with money management which he now took complete responsibility for, saying she would “regularly lose her purse”.
The assessment could not objectively establish the degree of cognitive decline because Ms D. failed effort tests so she was likely to have underperformed on tests of cognitive functioning. Ms D. also over-reported physical, cognitive and emotional symptoms on a questionnaire that included validity scales. Her underperformance and overreporting were considered to be consistent with malingering, factitious disorder or somatisation; in the first two the person has a conscious intent, but this is subconscious in the latter.
Ms D. reported seeing herself as physically and cognitively disabled. She did not enjoy going out or meeting others as social interactions created heightened anxiety for her. As a result, she and her partner were socially isolated and she had become even more emotionally vulnerable and dependant on him. Although the results of the cognitive testing were not conclusive, there was abundant behavioural evidence that, while even before the index event she was disorganised and struggled with completing a training course, since the brain injury she was less socially aware (e.g. often making socially inappropriate comments) and she was considerably more anxious and vulnerable and dependant than she had been before the SAH.
Ms D.’s medical history suggested a past tendency to somatise (i.e. experience physical symptoms in response to psychological stress). There was consistency between her reports, her partner’s reports and the multitude of contacts with her GP, rehabilitation team and services providing psychological support. As a teenager she had been involved in a relationship that featured physical, emotional and sexual abuse; she also had a long-standing history of recurrent depression.
The capacity test Under Section 3 of the MCA it is provided that “a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision,
During the relationship prior to her current one, which also featured physical and emotional abuse, she was charged with several counts of theft and handling stolen good, which she reported committing to please her partner at that time in the hope that he would stay with her and they would get married. She had not reported any abuse by her current partner, but her history prior to the SAH indicated she was a vulnerable individual and she had a tendency to become emotionally dependent on the men with whom she formed romantic attachments and as a result she had made decisions that were not in her best interest (e.g. becoming involved in criminal acts, remaining in abusive relationships) to maintain the relationship. It was significant therefore that she was now content that much of their meagre income went on the partner’s gambling.
(b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).” “The information relevant to a decision includes information about the reasonably foreseeable consequences of— (a) deciding one way or another, or
In order to try to establish her cognitive problems, the neuropsychologist considered data on the prevalence of cognitive problems following a SAH, cognitive test data, behavioural observations, interview, third party reports and information contained in the medical and occupational records. While the cogniEXPERT WITNESS JOURNAL
(b) failing to make the decision.” Financial capacity issues Upon direct questioning, although Ms D’s responses suggested that she had capacity, the key issue was her ability to weigh up information and her ability to do 53
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so in face of possible influence by those close to her, as indicated by her pre-morbid history and more recent events. There was a mismatch, typically observed in individuals with executive problems (the likely consequence of the SAH) between what she said she would do and what she actually did in reality. In addition, there was her pre-existing emotional vulnerability and tendency to undertake actions that were not in her best interests in order to preserve a romantic relationship.
Each case is unique and among experts a range of opinions can often be found. It is ultimately a matter for the Judge to apply the law in each individual case, but it would be helpful for both members of the legal profession and expert alike to be able to access Court decisions in such difficult cases, including in the County Court and Court of Protection, to be able to enrich their understanding of the application of the MCA (2005) in practice. 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)
- Ms D. reported managing finances without help but needing help with more basic activities such as self-care, which was inconsistent with the cognitive abilities required by these tasks. - The records showed that before the index event, on several occasions, she agreed to do something but then failed to go through with her stated intent.
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.
- Given her history of somatisation, her underperformance on cognitive tests and over-reported symptoms were highly likely to be the result of somatisation rather than malingering or factitious disorder, however, intent cannot be excluded due to the presence of secondary gains, both in terms of financial rewards but also care (e.g. her partner had applied for Care’s Allowance and there was a clinical negligence claim).
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.
- Multiple sources of information indicated Ms D appeared to experience significant executive problems since the index event.
Assessments can also be carried out in Italian. Consulting rooms in Surrey, London (Harley Street and London Bridge) and other locations. www.monaciconsultancy.com
Conclusion The Neuropsychologist, contrary to the opinions of the psychiatrist and neurologist instructed, raised the issue of vulnerability and that due to pre-existing emotional vulnerability, together with her perceived disability, social isolation and problems in executive functioning since the SAH Ms D was even more vulnerable to being exploited and manipulated by others and at high risk that she would allow the substantial damages she was to receive to be gambled away by her partner in order to appease and placate him. In these circumstances she was not just likely to make a bad financial decision, as she was entitled to do under the mental capacity test, if she felt this was necessary to maintain a romantic relationship, but because of those factors she was unable properly “to use or weigh that information as part of the process of making the decision”.
This article was previously been published in the New Law Journal. Many thanks for permission to reproduce
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While the MCA presents with a 2-stage test that needs to be applied to establish whether an individual lacks capacity, ‘borderline’ capacity cases raise difficult, and at times almost philosophical issues, as to what is meant by the proper weighing of information, and how judges approach such cases. EXPERT WITNESS JOURNAL
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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
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• Mental capacity & fitness to plead assessments Medico-legal services: Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments usually within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can be carried out in Italian. Dr Monaci also has a good knowledge of the Swedish language and has experience of working through interpreters. Clinical services: neurorehabiliotation services are also available Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). Contact: linda@monaciconsultancy.com for an initial enquiry. Main consulting rooms (nationwide locations): Several locations in the UK are available. Domiciliary visits can be arranged when clinically appropriate 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
Mr R Scott-Watson BSc(Hons) MB BS LLB (Hons)(Open) Cert Av Med. Cert MR(2)CUEW DDAM FRCS(Ed)
RSW Medico-Legal Ltd Linked In: uk.linkedin.com/pub/richard-scott-watson/34/4bb/531/
Expert Witness in Orthopaedic Trauma. Disability Analyst. APIL Expert. MedCo accredited. MEOL Approved Expert. Injury reports and Employment Tribunal reports (Equalities Act). Waiting list 4-6 weeks. Urgent reports undertaken. Reporting since 1990. Over 22,000 reports. Cardiff University Expert Witness Certificate 2014. Fully trained in CPR, Court appearance (2 per year) and report writing. Low velocity impact traffic accident cases accepted. 2018 Corporate Intl. magazine Global award ‘Orthopaedic Therapy Expert Witness of the Year in England’ Orthopaedic Expert Witness (UK) Leaders in law (LiL) 2017/18 2017 Global Law Experts 100. Orthopaedic Surgeon and Disability Analyst Expert of the Year - UK Winner: FORENSIC INSIDER Orthopaedic Award 2016; Lawyer Monthly Magazine Orthopaedic Expert Witness of the Year 2016; Forensic and Expert Witness E Magazine Medico Legal Award 2014/15 and 2016/17; Forensic and Expert Witness E Magazine Lifetime Achievement Award receiver for Trauma & Orthopaedics.
Home and prison visits undertaken Clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford
Contact: Carol Couzens 7a Heath Lane, Oldswinford Stourbridge, West Midlands DY8 1RF Tel/Fax: 01384 441126 Email: carolcouzens@ymail.com
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Understanding mental health – through our stomachs Alex Schubert from the European College of Neuropsychopharmacology (ECNP) explores the link between our mental health and what we eat Every day we consume a wide variety of substances with the specific goal of modifying our mental states. These can range from substances that are overtly mood-altering, such as coffee and alcohol, to those of a more diffuse impact, such as chocolate and folic acid, to out-and-out comfort foods, whose effects – like Proust’s famous madeleine moments – are less chemical than they are sentimental. We all instinctively know there is a connection between what we eat and how we feel, but as the madeleine moments show, that connection is multi-layered and maddeningly elusive. Its scientific basis, not altogether surprisingly, is also very poorly understood.
ing its composition, structure and synaptic function relies on access to the appropriate nutrients, including lipids, amino acids, vitamins and minerals. These can only be obtained in the quantities we need them through the intake of nutrients in the food we eat. Moreover, endogenous gut hormones, neurotransmitters and the gut microbiota-derived substances that mediate brain-gut-microbiota communication are directly affected by the composition of our diets. The implications are very important: if, as it appears, food intake and food quality have a direct impact on brain function, by modifying that intake we have the potential to influence cognitive performance and overall brain health.
Nevertheless, we are finding out more and more. Research is revealing suggestive linkages, giving rise to a dynamic new field, ‘nutritional psychiatry,’ which is trying to unpick the complex web of interactions that connect what we eat with what we feel and how we behave.
We already have many interesting leads. Mounting evidence points to a healthy diet, rich in polyphenols, B-vitamins, polyunsaturated fatty acids and nutritional supplements, having a positive influence on mental health, cognitive performance and stress reactivity. There are reasons to believe, for example, that omega-3 polyunsaturated fatty acids can improve cognition and ameliorate anxiety and that dietary omega-3 polyunsaturated fatty acids supplementation protects against the development of cognitive impairment, hyperactivity of the hypothalamic-pituitary-adrenal (HPA) axis and neuro-inflammation. Dietary exposure to high levels of polyphenols, B-vitamins and polyunsaturated fatty acids during middle age has also been found to correlate with better cognitive performance later in life. A recent study has even suggested that plasma monounsaturated fatty acids can significantly influence the efficiency of functional connectivity in the brain and enhance general intelligence.
Chair of the European College of Neuropsychopharmacology’s Nutrition Network Suzanne L. Dickson, professor of neurobiology at the University of Gothenburg, Sweden, explains what is at stake: “There’s a lot of accumulated wisdom about how nutrition meshes with brain health, but not much hard science. In particular, what we’re missing is a means to connect the many insights we’ve acquired on food’s effects to the underlying neurobiology and, in doing so, develop a path that might lead one day to actual nutrition-based treatments. “The promise of nutritional psychiatry is that by identifying which nutritional components truly matter for brain health and how these interact with the body’s metabolic, endocrine and other signalling processes, we can work out how to modulate neuronal function and, in turn, influence behaviour.
We also have a large body of epidemiological evidence that points strongly to the influence of diet on mental function and brain health. Early life malnutrition studies show that proper nutrition is essential for brain development in childhood and that these effects carry through right into adulthood and old age. At any stage of life, in fact, an improved diet quality is associated with better cognitive fitness and reduced risk of cognitive decline. Not only has the intake of antioxidant polyphenols been linked to improved cognitive abilities in the elderly, but higher
“We’re only at the beginning, but if we can isolate the environmental, lifestyle and genetic factors that determine nutritional responses, bearing in mind that humans are very different in the food they eat and how they process it, we can begin to envisage a future of personalised nutrition.” The importance of food for the brain’s functioning is easily inferred from how the brain works. MaintainEXPERT WITNESS JOURNAL
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serum vitamin D concentrations have been shown to be closely associated with better attention and working memory performance in the over-65s, pointing to a frontline role for diet in the fight against cognitive decline. For an ageing population facing rising levels of neurodegenerative dysfunction, these are very encouraging findings.
studies in large cohorts to identify exactly which mechanisms are involved in connecting nutrition and neuronal functioning and how these mechanisms can be manipulated by improved dietary habits to enhance people’s mental health”. This was the rationale behind the ECNP Nutrition Network, to pool European expertise in nutrition and neuroscience and help give nutritional psychiatry a more secure, evidence-based grounding. The Network includes researchers from academia as well as Europe’s leading food companies, attracted by the enormous therapeutic potential inherent in the field. “The long-term possibilities are immense,” says Dickson.
New evidence has also brought to light the role that the intestinal microbiome plays in the development and functioning of the brain, with data showing that the gut microbiota is critically implicated in the body’s ability to manage stress and respond to affective disorders, such as anxiety and depression. The way stress can negatively affect the gut microbiota and digestive health opens up the promising possibility that stress might also be lessened if the gut microbiota can be appropriately regulated via a precision diet. While not minimising the impact of other complex determinants, including genetics, environment, lifestyle and mode of delivery, the close association between diet, nutrition, the digestive organs and mental health promises whole new lines of possible treatment research.
“Simply by adjusting what we eat we are looking at being able to lift general standards of health and wellbeing and reduce the growing social and economic cost of mental illness. Right now, it’s one of the most exciting areas of mental health research. We are very optimistic”. Alex Schubert, Ph.D. - Nutritional Psychiatry Suzanne Dickson - Nutrition scientist Suzanne L. Dickson, University of Gothenburg Executive Director European College of Neuropsychopharmacology Tel: +31 88 75 69 555 secretariat@ecnp.eu www.ecnp.eu - www.twitter.com/ecnptweets
Yet, while compelling links between diet and brain health abound, identifying causes is another matter. “The evidence is pretty clear: nutrition, stress susceptibility, brain health and mental function are somehow bound up together,” says Suzanne Dickson. “But the evidence is correlational. There is a gap in understanding how these effects come about. What’s needed now are much more robust intervention
Dr Dawn Bailham
Dr Nigel Hinds
Consultant Clinical Psychologist
Consultant Neurologist
MSc Forensic Psychology DClinPsych Doctorate in Clinical Psychology BSc (Hons) Psychology
MBBCh, MRCP, CCST Neurology & Clinical Neurophysiology
Dr Dawn Bailham is a Consultant Clinical Psychologist with over 16 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. Also has a number of years experience giving evidence in the family and criminal law courts
Consultant Neurologist since 2003. Dr Hinds provides General Neurology, specialist peripheral nerve and nerve Conduction/EMG services to the population of South and West Wales.
In her current position Dr Bailham is Lead Psychologist working in CAMHS and Children's Services, where she works with children with histories of abuse. She also undertakes forensic assessment of young people with forensic histories and sexually harmful behaviours. Prior to this she worked in a low secure forensic CAMHS inpatient service for adolescents aged 12 - 16 years with emerging personality disorders. She is also a cognitive analytical therapist CAT and is experienced in delivering the therapy to adolescents.
Prior to his current appointment at ABM University Health Board in Swansea, he was a Consultant at Walton centre, Liverpool providing specialist peripheral nerve and Nerve conduction/EMG service there and lecturing medical students from the University of Liverpool on a regular basis. Dr Hinds undertook specialist training in Neurology and clinical Neurophysiology at the National Hospital for Neurology and Neurosurgery, London and University Hospital of Wales, Cardiff. Areas of expertise include all general Neurological disorders including epilepsy, peripheral nerve disorders, and spinal cord disease/injuries including whiplash and concussion. Medical Negligence work is undertaken on a national basis.
Dr Bailham has considerable experience spanning 10 years conducting child and family court work. Including assessing parents and children and preparing reports, conducting forensic assessments particularly for domestic violence, sex offending and physical violence.
Dr Hinds has written peer review publications and has 12 years of medico-legal report writing experience and training. He has completed training in Medico-Legal Report Writing in Civil Claims (Core Skills) and has been certified as having achieved the required standard by the Expert Witness Institute (EWI.)
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 and, has completed the University of Cardiff Bond Solon Certificate.
Address: Morriston Hospital, Morriston, Swansea, SA6 6NL Tel: 01792 703688 - Fax:01792 703249 - Mobile: 07767 354453 Email: enquires@neurologist-wales.co.uk Website: www.neurologist-wales.co.uk
Tel: 07801 266 010 Email: dawnbailhan@icloud.com
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Area of work Northamptonshire and Nationwide.
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The Chemsex Phenomenon Darrell Jones is a Drug Expert Witness who has spent his time with specialist addiction doctors, psychologists, nurses, counsellors, discussion groups such as The European Chemsex Forum and speaking with men who have previously attended and hosted Chemsex parties to understand what takes place within this not so new drug enhanced sexual environment. I have spoken with a number of different people who are associated with Chemsex and asked the same question “What is Chemsex?”, and I have had numerous answers but it all comes down to roughly the same thing, it’s a term which has been coined to define chemically enhanced sex by men who have sex with men. It takes place within a subsection of the gay community, and it is not just that this arena is growing, but society in general is becoming more aware of it for a variety of reasons, be it social and mainstream media reporting on recent murders within this environment to the use of PEP and PrEP which I will come to later, but the fact that the number of negative incidents linked to this section of the gay community are catching the headlines.
hour every hour as phones are synched to alert everyone when the next shot is due. Everyone looks out for each other with measurement of doses and effects to make sure no-one goes under, as a typical dose varies from 0.5ml to 1.5ml, two milliliters is enough to induce coma and then there is a fine line between quantities which induce coma to heart failure and death. Last of the trio is Mephedrone (drone, m-cat, meow meow), chemically similar to amphetamine, and is taken to offset the lethargic effect of GBL. The initial feeling is one of euphoria, extremely horny, and sexually alert to what is going on around, being empathic to others and very confident. This cocktail of drugs all mixed together seriously reduces your inhibitions, boosts your self-worth and engages you with everyone in the room to the extent where you are having sex, lots of sex, with lots of total strangers and feeling the best you have ever felt and are having the best sex you could imagine. A few days later the come down kicks in, and for a short space of time you consider your options, then its back on the apps looking for the next hook up. What really convinces you to go again is that your drug dealer has just sent out another group text with a picture of a kitten smiling with the phrase “Thank F**K it’s Friday get your special offers T,G,M, V’s party packs available” .
Chemsex is seen by many who work within sexual health clinics and other similar services as a complicated sexual arena rather than a complicated drug related arena. Putting those views aside for a moment, this is still a very drug specific setting, the aptly named “un-holy trinity” of drugs, which have become notorious for the scene are Methamphetamine (Crystal, T, Tina, Meth), Mephedrone (M-cat, Meph, Drone) and Gamma-hydroxybutyrate / Gamma-butyrolactone (GHB/GBL, G, Gina) or also known as date rape are used by nearly everyone who attends. Methamphetamine is a strong central nervous system amphetamine-based stimulant. The initial rush creates a euphoric feeling which can last up to 30 minutes depending on the route of administration and the sense of well-being can last 6 to 12 hours. During an event the people who I spoke with said that they would initially slam (inject) the first hit then continue smoking it while engaged in sex, the continued use would maintain the euphoric high and avoid the pain of the inevitable comedown.
Some men attend these events to overcome personal issues they may have, consuming drugs to overcome fears of rejection, sexual inadequacies, being ashamed about their body and to feel sexually released. Many gay men have struggled with growing up with a different sexual identity than what may have been expected of them, with the help of these apps men have been able to communicate instantly with people who have had the same feelings and desires to fit in and find friendship. I have seen that this can also come at a cost as they are introduced into a setting they may not have expected, or even liked but again the need to fit in, to be accepted wins over any negative judgement they may have of what is taking place.
The next consumable is GBL (gamma-butyrolactone) (often used and known as date rape) is a sedative/depressant which creates a similar feeling to being drunk but in control, along with an initial rush of euphoria and reduced inhibitions it is taken on the EXPERT WITNESS JOURNAL
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banking apps such as pingit and Apple pay, new arrivals requiring their first hit, party goers looking for the next Chemsex party which, assisted by the geo-location apps is never too far away. I was told that dealers would to take amphetamines to stay awake over long weekends to supply numerous clients at numerous venues.
The men who attend are from all walks of life and some tend to fit themselves into certain categories of which they are quite proud, for example Wolves: Late 30s to 40s, lean to semi muscular, usually hairy, often with facial hair. Otters: Late 20s to 30s, leaner, usually hairy, often with facial hair and Twinks: Late teens-early 20s, boyish features, thinner to slim build, and usually smooth skinned, to many other descriptive terms which men categorise themselves, and there’s those who don’t who are generally referred to as “others”. Their financial status may be that they sofa surf and live off friends and family, or they have high paid jobs with a large disposable income to men in their 70’s who pay for young sun kissed muscular male escorts/sex workers who are supplied free drugs to advertise on their profiles that a Chemsex party is on. The purpose being to attract similar looking men for the older generation to hopefully get involved with when the free drugs kick in.
Flying around London on mopeds to serve a very demanding market which will go on for several days, established dealers have their clients details stored in their handsets and as soon as an order in placed the standard response is sent and the supply continues. The content of the message is often seen as a basic abbreviation for the common commodities, for example GMTV or TKMAX, very commonly used acronyms for GBL, Meph, Tina and Viagra or Tina, Ketamine and Meph the deal is set, the drugs are served and the party continues. It would not be uncommon for a dealer to return to the same venue several times over a number of days
Men I have spoken with have said that the Crystal Meth and Mephedrone impacts the ability to obtain an erection and ejaculation, and at a sex party that is the last thing you would want. Viagra, Kamagra or similar erectile dysfunction medication are consumed in abundance, one man said that he would often be more concerned about the rush of blood in certain parts of his body rather than the cocktail of drugs he was injecting, smoking and drinking as he would take one Viagra with every shot of GBL on the hour every hour. The open and frank discussion about how the drugs take over and extreme sexual disinhibition kicks in was quite sorrowful. Any stigma, shame or intimacy issues were stripped away as the drugs took over and the hours turned into days, the boundaries which had been set prior to drug use have long since disappeared, unprotected sex has taken place with multiple partners whose names are a blur or not even known, and extreme sexual practices which would never be have been considered under “normal” circumstances had now become standard practice. Injecting crystal meth (slamming) once viewed as a step too far towards addiction, and “only addicts inject” is now at the top of the list of things to do as soon as you arrive, then all of a sudden wondering what happened to the last five days.
I’ve been told how this “Party N Play” culture became a way of life, of being unable to have sex without “Chems” and numerous known and unknown partners, there was no off button until your body was physically unable to cope, which could be 3 or 4 days later. He told me how people were always looking for the next guy, irrelevant of how many were there and what they looked like, the apps always contained someone new and exciting. More often than not these parties were spontaneous and would often start with just 2 men, smart phones and apps, and before long there would be numerous men arriving with or without drugs soon followed by the men with the drugs…the dealers. When men started to arrange Chemsex events based on their HIV positive status it was seen by some as a good thing, somewhere they could go and have unprotected sex and indulge in whatever they wanted with whoever was there without prejudice. Then men wanted to attend and intentionally get infected with HIV. In my previous employment I read text message evidence discussing a man who wanted to get “pozzed up”, it was and is still hard to understand the concept, as no doubt it is for many people. There are a number of reasons why men attend these parties to get intentionally infected with HIV, some for a sense of security within a certain clique while others see it as the ultimate self-harm or even sexual suicide, but these are just a couple of views of why anyone on earth would want to intentionally get infected with HIV. I was told that men would attend these events intent on carrying out specific sex acts that would or could increase the chance of contracting HIV. It became such a common thing that it wasn’t long before terms were bestowed upon the people involved. The person looking to get infected is a “bug chaser” and the man, or more often
Chemsex parties will often last for several days and these events can be easily found on any number of sexual networking sites and smartphone apps, for example Grindr, Scruff, BarebackRT and Gaydar to name but a few. The men I spoke with stated that they would never host a party at their own place if they were dealing drugs, because they knew as soon as they got into full swing the drugs would be out and selling them would not even be considered. This environment created a niche market for drug dealers, numerous clients in one location for days on end who require serving up, payments made by the use of EXPERT WITNESS JOURNAL
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than not men were called “gift givers”. I was told that knowing you have it is better than worrying about catching it.
then used by anyone and everyone until they wake up. A number of other “party games” are also played which, on hearing the basic rules just made me wonder “Why”.
The illimitable availability of men on apps and willing to partake in a wide variety of sexual desires 24/7 it's inevitable that the passing of sexually transmitted diseases would take place. Its believed 1 in 8 gay men in London are HIV positive and with endless Chemsex events this should be a cause for concern. David Stuart, Substance Abuse Lead at the sexual health clinic at 56 Dean Street, Soho explains that about 3,000 gay men attending the clinic each month are using GHB, crystal meth, and mephedrone and the clinic diagnoses between 20 and 30 gay men who are regular users of these drugs, with HIV each month. He also explains that the centre estimates that it also prevents between 200 and 300 gay men from contracting HIV from chemsex each month, by prescribing PEP (Post-Exposure Prophylaxis). PEP is a treatment which can be available through sexual health clinics and can reduce the likelihood of HIV infection after potential exposure. PrEP (Pre-Exposure Prophylaxis) on the other hand is taken regularly and stops people becoming infected if exposed to HIV. At present it is available in Scotland and Wales on the NHS and a trial started in England in Sept/Oct 2017 making this product available in certain sexual health clinics. The cost of this medication on the NHS in 2016 was estimated to be between 10 and 20 million pound a year. The use of PrEP and PEP is a game changer in prevention of HIV and with advancements in science hopefully HIV will become more easily managed in the future.
With an increase in the number of events the rise in crime being reported having taken place within a Chemsex setting was inevitable. Murder, rape, blackmail, extortion, assaults, thefts and being injected against your will while tied up in a sling are a number of incidents that I have been involved in or I know have taken place. The biggest issue men have in not wanting to report these incidents is the fact that the Police know very little about this environment and are concerned that if they explain the circumstances of the incident they feel they may be arrested, or are high at the time of reporting the crime and think that they will not be believed. Some high-profile cases for example the Stefano Brizzi and Stephen Port murders have subsequently shone a spotlight on this sexual arena and the Police are becoming more aware of the setting and attitudes appear to be changing. Having spent a long time gaining an invaluable insight into this environment as a Drugs Expert Witness, I would suggest that any trial surrounding this drug trafficking arena would benefit from the services and opinions from an expert like myself. Please get in touch at www.drugsexpertwitness.com or email darrell.jones@drugsexpertwitness.com.
Psychological Expert Witness and Treatment Service Personal Injury - Clinical Negligence - Employment Tribunal
Dr. Aftab Laher
It is common knowledge that sex between men takes place within numerous saunas and in the back rooms or dark rooms of a number of other venues throughout certain parts of London, Manchester and Brighton. Numerous other venues throughout the cities and suburbs of the UK also hold specific events which are openly advertised for a specific clientele. The “No Strings Attached” sex is seen by some as social interaction after a night out and safer than “cruising”. The use of CCTV and security at these venues is seen as another benefit, but that does not stop sexual assaults, rapes, overdose, drug supply and many other types of crime specific to these venues and those who attend taking place. I was told non-consensual sex while someone was in a GBL induced coma is very common. The fact that a game of GBL Roulette is played would indicate that some held a psychological attraction to being used while in a catatonic state.
BA (Hons.) MSc PhD C.Psychol. AFBPsS UKCP CSci.
Consultant Chartered Clinical & Health Psychologist (BPS) Registered Practitioner Psychologist (HCPC) Accredited Cognitive-Behavioural Psychotherapist (BABCP) Extensive training and experience in the psychological assessment and treatment of adults presenting with psychological injury in the context of accidents, clinical negligence and employment. Clinical issues and conditions covered include adjustments disorders, PTSD, anxiety, phobias, depression, sexual abuse, body dysmorphic disorders, chronic pain, chronic illness/ disability and work-related well-being. Experience of giving expert evidence in court and tribunals. Trained as a Single Joint Expert. Quality of my court reports have been commended by judges and lawyers. Quick, efficient and sensitive service backed up by a commitment to high standards and ongoing professional training and supervision.
Consulting Rooms: Spire Hospital, Leicester - Nuffield Hospital, Leicester Nuffield Hospital, Derby - Tranquil House Psychological Centre, Birmingham
Work undertaken nationwide. Contact Details: 54 Asquith Boulevard, Leicester LE2 6FA t: 0116 212 9995 f: 0116 212 9300 m: 07900 916 857 e: al@psyworks.co.uk w: www.psyworks.co.uk
GBL roulette is played by any number of players, a number of shots are poured and one glass contains enough GBL to put you into a “G sleep”. All the glasses are mixed up no-one knows which is which, they are consumed and the one who goes under is EXPERT WITNESS JOURNAL
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Expert Debt Collection by Alison Somek, Expert Witness and CEO, Somek & Associates Alison Somek continues to act as an expert witness as well as running Somek & Associates – a Medico-Legal consultancy with over 200 expert witnesses, including Occupational Therapists, Nurses, Midwives & Physiotherapists. She is currently on the membership committee of EWI. This article is based on a presentation at the Bond Solon Annual Conference in November 2017. Many thanks to Alison Somek for kind permission to re-print. The author wishes to point out that the following is based upon her personal experience as an expert witness and CEO of a company providing expert witness services. Alison is not a lawyer or an accountant and advises readers to take professional advice on any relevant matter. structures and systems in place. You must also ensure you have time to put those systems into practice, or pay someone else to do it for you.
Experts Getting Paid At the EWI Conference in September 2017, its chair Martin Spencer QC stated “Experts are entitled to be paid a proper fee; and to be paid on time”. For many years one of the issues most consistently raised at Expert Witness conferences is that of getting paid. This editorial aims to provide some insights and tips that may assist and it predominantly looks at what you can do to maximise payments.
I have heard of expert witnesses who often fail to present invoices for work undertaken. Not dealing with the business side of your legal practice will clearly lead to non payment and may ultimately cause financial difficulties. Moreover this is not professional behaviour, not least because it gives a totally false view of the cost of litigation which is not helpful.
The author’s main experience is in civil litigation although much of what is stated here will apply to all expert witness fields. However, the rules about who pays what in criminal, family and coroners’ court cases are different and prior to entering into a “contract” to undertake any work expert witnesses would be advised to clarify the position.
Thought and planning are required. Advice can be sought from colleagues and your professional bodies; some may have a specialist section for independent or private practice, with business codes of conduct, and business guidance (such as the Royal College of Occupational Therapists). You may prefer to employ an accountant (if only for tax advice) and/or a solicitor (e.g. to assist with drawing up terms of engagement).
1.Business Brain Develop a business brain and functions Expert witnesses are no longer working for an organisation where salaries simply appear in the bank account on a particular day of each month.
A huge source of great advice is through the expert witness organisations such as Expert Witness Institute (EWI), Academy of Experts (AoE) and UK Register of Expert Witnesses.
If you want to be paid for your work you must act in a professional business way, and ensure you have EXPERT WITNESS JOURNAL
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Credit checking is just one tool in your decision making process. You need to look into the company, its history, its size, its experience in the market, and make your decisions accordingly.
You should consider investing in a management system of some description so that all communications can be well documented, instructions and work can be logged and invoices and receipts processed. If you do not have a dedicated system, you must develop your own and above all ensure all communications (verbal and written) are logged very carefully.
Another consideration is to establish whether the instructing solicitor’s firm is the same as the organisation paying your bills? The one responsible for paying your fees is the one you need to check. See article by Chris Pamplin, from UK Register of Expert Witnesses: http://www.jspubs.com/experts/ewire/itemtext.cfm? ewid=323
2. Client Relationship Any supplier of services has two options – to agree to work for a client or to respectfully decline. A question you should consider is whether you wish to work for any particular client, personally, professionally and financially.
It is clear that some, generally smaller legal firms, have set up a separate “Reporting Company”, to be responsible for paying your invoices. So what is the situation should the “Reporting Company” go into administration? Do you have a contractual relationship with the legal firm itself?
Expert witnesses should understand who is instructing them and their financial status. Is the firm a Legal Entity or simply a Trading Name for another company? Who has responsibility for payments? For example, you may receive instructions from Your Legal Friend. The Legal Entity for Your Legal Friend (and Camps Solicitors) is 2020 Legal. Many solicitors have a similar business structure. You can find this information out from the Law Society website.
Chris recommends that you should take the time to get terms with the instructing legal firm to provide you with some protection in the event this happens. It may not be quite that simple, but you need to do your due diligence when assessing whether to work for this solicitor/reporting agency in terms of your risk.
A sensible approach is to undertake credit checks. Many legal firms, large and small, have gone into administration in recent years and if this happens when you are owed money, you may not get paid at all, and if you do, almost certainly, you will not get paid for a long time. There are a number of credit checking facilities available; we use a company called Experian paying about £750pa. For this we are able to check out the credit score, rating and limit for most firms, along with varying degrees of useful financial information. We also receive daily if not weekly updates through a monitoring process. So if the credit rating for a previously, apparently sound business plummets, we will get a credit warning.
3. Terms and Conditions When agreeing to accept instructions and undertaking work you are entering into a “Contractual relationship”. If you want to ensure to get paid you must have Ts&Cs which should be clear and unambiguous, and issued to the client at the earliest opportunity. They should be sufficiently comprehensive; they need to deal with all aspects of your work with clients and most importantly your fees (including cancellation fees, disputes and non payment of fees) and payment terms.
Considerations include: 1. Is this company sound?
See EWI, UK Register of Expert Witnesses and AoE for Sample terms: http://www.ewi.org.uk/ https://www.jspubs.com/ http://www.academyofexperts.org
2. If the case goes badly can they still afford to pay me? 3. If the credit rating is poor, you would be mad to agree to deferred payment terms, but you may agree to doing a case on 30 day terms to see if they pay, or if the credit rating is that poor you may decide to ask for money up front
The UK Register of Expert Witnesses even has an online application to produce your own bespoke Ts&Cs. Some professional bodies also produce sample terms eg RICS.
4. However, once instructed on a case (in proceedings) you have a duty to the court, so the decision to refuse to do further work is not so simple. Credit scores are fairly simplistic and can sometimes be a bit misleading. You may agree to do work for some companies with poor credit scores, where their payment history with you is good and your experience of the company informs you that they are a well managed and ethical company. It would be advisable to monitor their on-going payment record carefully, and limit the level of total credit given. EXPERT WITNESS JOURNAL
You may want to include caveats, such as if records sent to you for review are in really poor order you will reserve the right to charge an additional fee. Legally, for a contract to be deemed to be in place, terms must be offered and accepted. It is not sufficient to simply send terms; you need a positive response; even an email saying I accept! This becomes most pertinent in the event you do end up in the Small Claims Court (SCC). The gold standard 62
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is undoubtedly to have signed Ts&Cs. However, you may make a commercial decision with a client you know well (from a business perspective) and where you consider the risk is very low e.g. NHSR panel solicitors.
30 days – for clients who are not waiting for funding sources e.g. MROs 90 days – for clients with funding such as LAA, insurer or NHSR, giving time for your instructing solicitor to be put in funds from his payer
With a client you are less confident about or do not know, you should not start work until you have received signed terms. This would be another good commercial decision.
Deferred payment terms – 1 year or more, depending on what your cash flow will allow; these are mainly for Claimants to allow time for settlement, interim payments etc.. Where deferred payment terms are given a premium should be added for this “credit facility”. CPR allows for deferral of payment, but not payment terms that are contingent upon the outcome of a case (There was a slight amendment in the 2014 Guidance, but the author believes this remains the position for 99.9% of cases).
If amendments to contract are offered by either side the most recent version becomes the version in place. Consequently you do need to address any terms sent to you, subsequent to your own being agreed. A typical example is when a client writes into a letter of instruction that: “At the conclusion of the case your fees may be subject to costs assessment and if reduced by the court, they will expect repayment (if they have already paid) or make a deduction from the amount due (if they have not already paid).”
If providing deferred payment terms, it is recommended that you do not give end of case terms, but specify a payment date. If a case is adjourned, goodness knows when you will get paid.
If this is not acceptable to you (which I hope it is not) you must respond. Such a statement can only be enforced if contractually agreed.
Some MROs are financed to allow end of case terms and therefore if your client insists they cannot pay you and will not sign anything other than end of case terms, you could suggest they instruct you via one of the MROs, such Premex.
Discussions on terms may have consequences; for example if a client says they cannot pay you until the end of the case, and you do not agree such terms, the client may choose not to instruct you.
Within your terms, ensure that you have a clear statement about disputes of fees, and time frames. It is totally not acceptable for clients to accept your work, ask you to do more, accept that too, and then complain nine months later that the work was not up to scratch and they are not going to pay you!
You may have plenty of work and not be concerned about losing a case, or you may be starting out and wanting to develop your practice; thus cases are important.
Once a case is settled, the bills are not paid immediately as the issue of costs needs to be concluded. Thus there may still be a delay in clients being put in funds. Some will pay you from their own funds in the knowledge they will receive costs in the near future; some will ask you to wait. You may consider waiting a “reasonable” time is acceptable and sensible if you value the relationship.
Having signed Ts&Cs do not guarantee payment, but they make the expectation clear to the payer, and they will stand you in good stead if you end up in the SCC 4. Fees and Payment Terms You need to understand the market, and your clients’ constraints. Be realistic and reasonable. You may be at the top of your field, and sticking your head above the parapet, so charge an appropriate fee. However, the costs of litigation are persistently the political football of our time and expert witnesses should be mindful of this when setting fee levels which should be relevant for your level of expertise without being arrogantly excessive or unreasonable, especially when considering cancellation fees.
5. Tactics! Invoices must: • be sent out on time ie when the work is done • be clear what instruction they relate to; it is best to invoice separately for each instructed piece of work, although you may lump obvious tasks together such as reading new evidence and attending conference, if all within a short time frame • have a breakdown showing how the bill is made up itemising time spent reading, report writing, assessment, travelling etc, along with a clear statement of expenses
Cases can go on for years and will accrue costs. Experts should be mindful of what you are being instructed to do and that there are indeed constraints on costs. Invoices should be raised regularly as work is completed, and not accumulated - landing a lawyer with an unexpectedly large bill is asking for trouble. Typical commercial terms are 7 days or perhaps 30 days, but in the medico-legal market this will not work for most clients. You may therefore consider a range of payment terms: EXPERT WITNESS JOURNAL
• include the due payment date • include the client’s and your references It is advisable to send out monthly statements! If your invoice “never arrived” the monthly statement will act as back up, and should invoke a query! 63
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You may start by threatening to charge interest, if the payment is not received by x date; but give a reasonable time frame to enable them to revert to their client if necessary.
Due date – no payment Straight away you should send a nice friendly reminder requesting immediate payment, adding “If your cheque is in the post please ignore this reminder, and may I take this opportunity to thank you.”
If you receive no response, or no satisfactory response, apply the interest charges.
What you are really looking for is real communication, i.e. communication explaining the delay and when to expect payment. When this is forthcoming, showing patience is advisable. Promises of payment “soon” are likely to be empty promises, and it is recommended that you try to agree specific dates and ensure such communications are in writing (very helpful if you do end up in a SCC).
Reasons for going down this route (rather than suing) might include: 1. If the case is on-going and you are likely to be required to do more work 2. If the client is communicating well with you. Generally clients do not want to pay more than the fee they signed up to, so they will not want to pay interest. However you cannot get blood out of a stone and if people do not have the funds, e.g. the case has gone on for much longer than anticipated, they may welcome agreed deferment and accept late payment interest.
Methods of communication are worth considering – Is email ideal or sufficient? Will it get to the right person? Is the fee earner still there? Digital communications are the norm these days, but if email does not work, send your next reminder in the post, when others in the firm may be alerted to your issue. Consider who will communicate. You may have a very efficient Accounts Manager, but it’s funny how an email from the expert involved in the case, often gets the most delightful response, and even an apology! Sometimes it’s the phone call that just embarrasses into submission.
Keep good tabs on the case though. It is helpful to know if the case has been issued; ask for court orders which may give you an idea as to time frames on the case and the stage it is at. When the client is “never there” you can ask the receptionist or assistant to check if the case is still on-going. Sadly some clients do not want you to know if a case has settled because then they will have to pay you! This may especially be the case if the firm is having financial difficulties, and it becomes even more important for you to attempt to get your payment before they go into administration!
Dealing with the “Gatekeepers”. There is a strange phenomenon that occurs when people owe money – every time you call they are in a meeting, or just left the office for the day, or on annual leave! But persistence often pays and it is worth calling again, daily if necessary. It is advisable to speak to the main fee earner, not the paralegal administrating the case. If you are getting nowhere you may even consider contacting another partner in the firm.
7. When to Sue? 1. Case on-going If the case is on-going and your input not concluded, you may be advised to take the decision not to get too heavy, and to go down the charging interest route. However, the client is also in an awkward position – they want to keep you reasonably happy too in case they want to instruct you further on their case. But it does not sit comfortably with me to sue your client who is still instructing you on a case!
Take a view: 1. How many communications are reasonable over what length of time before you decide to get tough? Don’t just keep sending the same old email month after month if getting no response. You need to deal with the issue.
2. Case concluded You may start by threatening to “have no option but to take legal advice” i.e. to sue; this usually gets a reaction and often achieves a result! But if not .... then sue.
2. Big clients who have funds but are just “poor managers” – you will probably want to persist for longer; indeed are you ever going to sue them? Possibly not, but then you are more likely to get paid eventually. 3. Smaller clients who you do not have a valued relationship with – give them a few opportunities to communicate reasonably, but take action sooner rather than later.
Consider taking legal action if you are getting no satisfactory resolution or communication. My advice is not to go down this route lightly. Consider your position very carefully. • It is time consuming • It is costly • It is extremely unlikely you will recover all your costs (if you consider your own time spent dealing with this process)
6. Interest Payment You can apply late payment interest and then agree to defer payment; clients may prefer this where a case has not settled, and they do not have funds. Late payments of commercial debts legislation allows for interest to be charged, but it is also advisable to specify the same in your terms. EXPERT WITNESS JOURNAL
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to lose the case for the sake of a few hundred pounds; principle being an important factor. It really shows you mean business too. We did not regret it – on one case our barrister was so good we came away with an even better settlement than we thought we would.
• You may lose! • You will almost certainly, lose a client – and probably you will be delighted to do so, if you have reached this stage However, the times we have sued we have done so “on principle” where we have believed very strongly we are in the right and our client has behaved badly and should not be allowed to get away with it. But we have weighed up the options very carefully.
So the costs of going down the SCC route are: • Your time and that of any other associate / staff involved – not claimable (For case preparation and court attendance) • Court fee – recovered if you win; dependent on value claim (£185 for claim values £3k-£5k) • Your solicitor – if you use one ????? (our cost in 2016, was £1,500 - £2,000) • Barrister for court, via an agent – about £200
To win you must have all your ducks in a row. • Your communications must be really good and demonstrable; so this is where your business communication system comes to the fore. • Your terms must be in place, and preferably signed. You can take the matter through the SCC yourself or appoint a solicitor. The process is:
You are bound by LP legislation. You can claim interest on money owed.
1. Ask your solicitors to send a legal letter; For them to do this you must provide them with your case and your evidence. (First time consuming task)
‘Statutory interest’ – this is 8% plus the bank of England base rate for business to business transactions (currently 0.5%) for the number of days overdue. Send invoices for late payment charges.
2. Your solicitor sends a legal letter essentially threatening suit if payment is not made, setting out the key points. Solicitors do not want CCJ against them and will take this seriously. Payment may be forthcoming and no further action is needed.
Plus you can charge a fixed sum for the recovery of a late commercial payment: £1 to £9,999 – £70 You can also claim for reasonable costs in recovering debt. For information re SCC: https:www.gov.uk/make-court-claim-for-money
3. The client may respond defending the non payment, making a counterclaim and / or offering to negotiate / mediate.
8. Debt Collection You can go down this route. There is a cost but it should reduce your own time. If you do go down this route it is advisable to use a firm that understands our market.
4. Consider the response; does he have a point? (Unlikely as I hope this would have come to the fore before now if he does). Decide whether to continue or withdraw.
Eg Debt Collection for Expert Witnesses “is the no-nonsense way to deal with recalcitrant solicitor debtors for debts greater than £750. We don’t mess around with the debtor. We will initiate action (unless there is in our view a valid defence) either under the Civil Procedure Rules or the Insolvency Rules. Because of this, our modus operandi invoices you assigning the right to payment to us. This is designed to insulate you from any claims for costs which may arise in the recovery process. You, for yourself and any business partners you may have, assign the debt to us using a Deed of Assignment we supply. Once your fees have been recovered, we will forward the money to you less our agreed fee. Our fee is based on results. We charge a flat 18.5% of fees recovered. So if we aren’t successful, you don’t have to pay us anything. E-mail info@dcew.org.uk”
5. If you continue, SCC proceedings are issued 6. You will be asked to sign a “Witness Statement” as will any of your associates involved in the case. These are sent to the Defendant client. Your legal advisor can draw this up but in my experience it is better for us to draw up the statement, with the legal advisor then improving or correcting it from a legal perspective. (More time ++, countered by a slightly lower fee from our solicitor). I say this because we generally know the case inside out by this stage, plus we have direct access to all of the communications. 7. You will then receive a Defence. 8. You will be expected to go through mediation, but if you have already made offers to settle, you may consider this is pointless. Do bear in mind that in mediation you will be expected to give, and it is likely you have already made offers to settle in the interests of cost and your sanity!
I should point out that I have no experience of this service, and I must state that there are undoubtedly other providers of such services!
9. You can decide whether to appoint a barrister to handle your case in the small claims court. This is done through an agent and is not costly. Personally, I consider it as money well spent – I was not prepared EXPERT WITNESS JOURNAL
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bill can I withdraw from the case or refuse work until the invoice is paid”:
The Guidance (10) reminds us that the overriding objective is that courts deal with cases justly and that experts are under obligation to assist the court in this respect. This includes dealing with cases proportionately (keeping work and costs in proportion to the value and importance of the case to the parties), expeditiously and fairly (CPR 1.1).
- This may depend on what you have written in your Ts&Cs which are key. If you have a statement in your contract to the effect this is what you will do, it will be hard for the solicitor to criticise you - You can try it, and see if you get a positive response i.e. payment.
CPR 35: 35.4(2)-“When parties apply for permission (to instruct an expert) they must provide an estimate of the costs of the proposed expert evidence ...”
- Negative response – you can put it in writing that you are withdrawing from the case providing your reasons, but then the client a) will almost certainly not pay the unpaid bill and b) may request payments already made are re-paid on the basis he will have to get another expert to start the case again (Guidance 27 is not very helpful). You may be glad of this outcome but you should consider whether there may be an argument for professional negligence!
Costs Budgeting: You will be required to provide an estimate of all costs for all Expert Witness tasks at the outset of the case. My recommendation is not to be lazy and simply give an estimate for what your clients ask; often the person asking does not know the case and what may or may not be required. I suggest you give an estimate for all tasks that you are typically asked to do on any case; make sure your estimate is “handsomely reasonable” ie not ridiculously excessive but may include a contingency, as it is likely to be impossible to change it later unless there is a clear reason why the assumptions on which the first estimate was based, have changed.
- You can put in writing that you will not undertake further work until the bill is paid – in this case you may be in contempt of a court order, in which case this should only be done a) if not related to a court order and b) if you ask the court for directions - You can approach the court for directions – but you would need to draw up the letter to the court and send this to your client in the first instance stating that you will continue to send the letter to the court unless the client resolves the issue
(3B) - Soft tissues claims – fixed costs reports 38.5 (3a) (4a & b) (5) SJE – payment of fees & expenses
At the end of the day you must remember that experts have an overriding duty to the court when they become expert witnesses. Whether or not that overriding duty trumps the contract is a legal question, and there are plenty of court cases where the court is dealing with the consequences of an expert withdrawing without criticising the expert who withdrew.
PD35: 6.2 – Payment related to part 35.6 questions to experts. The Guidance (17) clearly outlines the terms of appointment: 17. Terms of appointment should be agreed at the outset and should normally include:
So I would recommend you consider the circumstances of the case before deciding what action to take; the closer the case is to trial, the dimmer the view the judge may take of an expert who for purely commercial reason, upsets the court timetable!
a. the capacity in which the expert is to be appointed (e.g. party appointed expert or single joint expert); b. The services required of the expert (e.g. provision of an experts report, answering questions in writing, attendance at meetings and attendance at court);
10. Orders Are you receiving court orders? CPR 35 / PD8 – Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert. The claimant must serve the order on a single joint expert.
c. Time for delivery of the report; d. The basis of the experts charges (e.g. daily or hourly rates and an estimate of the time likely to be required, or a fixed fee for the services). Parties must provide an estimate to the court of the costs of the proposed expert evidence and for each stage of the proceedings (CPR.35.4(2) ;
This is important as it is especially difficult to refuse instructions if they have been ordered by the court. But you may be able to ask the court for directions.
e. Travelling expenses and disbursements;
11. Know the Rules (CPR) If acting as an advisor pre-proceedings, the CPR do not apply.
f. Cancellation charges; g. Any fees for attending courts;
Take note of the rules as if work is done outside “the rules” costs may not be recovered, and/or sanctions could be applied, including non payment. EXPERT WITNESS JOURNAL
h. Time for making the payments; i. Whether fees are to be paid by a third party; 66
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j. If a party is publically funded, whether the experts charges will be subject to assessment; and k. Guidance that the experts fees and expenses may be limited by the court MR JOHN CHAMBERLAIN FCA
See also Guidance 26 (terms), 37 & 40 & 41 (SJE), 88 (Conditional fees “strongly discouraged�), 91a (cost penalties)
Brebners is a firm of chartered accountants and business advisers based in London and Sevenoaks. We provide accountancy, tax and compliance services to businesses and individuals across the UK.
Alison Somek, CEO Somek & Associates, October 2017.
We are specialists in a range of sectors, including the media, sporting and creative professions. Our expetise inlcudes all accounting matters including, due diligence, financial disputes, investigations, personal injury claims, professional negligence actions and valuations.
Need an expert fast call our FREE searchline on 0161 834 0017
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Contact Details London Tel: 020 7734 2244 Email: london@brebners.com Kent Tel: 01732 457676 Email: kent@brebners.com Website: www.brebners.com Tel: 0207 919 0315 Email: john.chamberlain@brebners.com Fax: 0207 919 0359
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Forensic Architecture and Grenfell Tower Following the Grenfell Tower fire of 14 June 2017, Forensic Architecture, a multidisciplinary team of investigators based at Goldsmiths, University of London, launched an open ended investigation into the circumstances of the night of the fire. The first part of the project is concerned with the thousands of videos of the fire that were taken by Londoners on their cameras and smartphones. Every one of those videos is a unique piece of evidence, containing information about the fire.
Anybody with video footage of the fire is welcome to submit material, and in this way contribute to a collective project by the residents of London. Material can also be submitted through a workstation set up at the Institute of Contemporary Arts, from the 21 March until 6 May, where Forensic Architecture is holding it’s first UK exhibition.
Forensic Architecture has started collecting these pieces of evidence and assembling them within a 3D model of Grenfell Tower, in order to create a powerful new resource for the public understanding of the events of Grenfell Tower fire.
The website will go live on March 21st, at the same time as the project is launched on Sky News. Forensic Architecture is grateful to Sky News for their early support of the project, which has included contributing their entire rushes from the day of the fire.
Our investigators have developed techniques to geolocate and map footage onto a model of the tower By stitching multiple ‘mapped’ and geo-located videos together, Forensic Architecture will construct a 12 hour ‘3D video’ of the fire, mapped onto our architectural model of Grenfell Tower. This model will allow the user to investigate the fire, improving the public’s understanding of the course of the tragic events on the night. The model will sit within a web platform which will ultimately act as a freely available public resource.
The circumstances of the Grenfell Tower fire are the subject of both a public inquiry and a criminal investigation. Forensic Architecture has consulted extensively to ensure that as the project sits productively alongside both, and we will strongly urge contributors to also share with the Grenfell Tower Inquiry and the Metropolitan Police any information that they share with Forensic Architecture. ‘Mapped’ videos will eventually sit within a navigable, interactive and timelined platform
To begin this project, we are inviting members of the public to share with us their video footage of the fire, at the following website: www.grenfellmediaarchive.org.
A. Model A1 (above left) and A2 (above right) show our architectural model of Grenfell Tower, in its entirety and in a plan view. In A2, the flat-level detail of the model is evident. The model has been constructed to the exact specifications of the architectural plans publicly available via the website of the Royal Borough of Kensington and Chelsea EXPERT WITNESS JOURNAL
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B. Motion Tracking B1(above left) and B2 (above right) show one of the early stages of our process of ‘mapping’ video onto the architectural model. After video footage of the tower has been analysed and geolocated, the movement of the camera is ‘tracked’ and counterbalanced, to produce a relatively stable video image which is projected onto the model. B1 shows the application of our ‘wire frame’ model to video footage of the fire. In B2, which shows this projection, the green wire frame indicates the position from which the video was taken.
C. Video Projection C1-3 (clockwise from above) not only showcases the early progress we have made mapping videos onto the architectural model, but gives an indication of how the model will sit within a web platform, including possibilities for interactivity such as a timeline and communications data.
D. Unwrapped Facades D1 (above left) and D2 (above rigfht) demonstrate an alternative possibility that our video ‘mapping’ and synchronisation offers for analysis of the fire. ‘Unwrapping’ the tower (and adding a second East façade) provides a simple and comprehensible way to follow the progress of the fire across the building’s exterior. The angled footage shown in D2 is a result of the ‘texture projection’ process. EXPERT WITNESS JOURNAL
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E. Tracing paths Behind the tower’s exterior, and beyond our analysis of the video footage, the model and the platform which will house it could be used to present a wealth of other information as it becomes publicly available, including communications data, the movement of emergency services and even witness testimony as it is published by the Grenfell Tower Inquiry. E1 (above left) zooms into a generic corner flat within the tower, and showcases our ability to illustrate testimony. E2 (above right) presents a generic movement path through the building. field, we generate unique and innovative techniques for spatial and media research and to put these at the service of human rights groups and international prosecutors.
What is Forensic Architecture? Forensic Architecture is an investigative research agency based at Goldsmiths, University of London, working around the world in support of communities affected by state failure or violence, as well as with human rights organisations such as Amnesty International, and international institutions such as the UN and the International Criminal Court.
Forensic Architecture Centre for Research Architecture, Goldsmiths, University of London www.forensic-architecture.org E: info@forensic-architecture.org T: +44 (0) 20 7078 5387
‘Forensic architecture’ is also an emergent academic field that refers to the production and presentation of architectural evidence in legal forums, including courts, and for advocacy purposes. In developing this
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Expert Witnesses and Negligence – Riva Properties Limited v Foster + Partners Limited by Emma Hynes, Barrister, Hardwicke Riva Properties Limited v Foster + Partners Limited (2017) EWHC 2574 (TCC) is packed with delicious details – a world famous architectural firm versus a business man with aspirations of building a five-star hotel (retaining a bowling alley as required by planning), conducting business from the front room of his home. The disputed factual and legal issues read like a particularly thorny laundry list. Unsurprisingly, Riva has engendered numerous excellent articles and discussions.
The conduct of one expert quantity surveyor came under particular scrutiny. The evidence sought was as to whether an alternative design, known as the “Acanthus Scheme”, could be built on the site for £100m. The quantity surveyors agreed in their first Joint Statement that they would each cost the scheme. The Claimants’ expert, making assumptions, concluded the Acanthus Scheme could be built for £100m. The court agreed, and criticised the Defendant’s expert:-
Mr Justice Fraser’s judgment is unflinching to say the least. By it, the court undoubtedly has fired warning shots across the bows of all manner of professionals. Few are spared scathing remarks.
• He did not perform the costing exercise agreed in the Joint Statement, instead working out a costing on an entirely different methodology. • He costed the project such that the outcome appeared to arrive at unrealistically high amount. The price per room was considerably greater than even Foster’s design.
Expert witnesses are among those under scrutiny. These professionals are regularly forgotten in professional negligence spheres, but no less bound by duties and no less potentially liable to suit.
• He opined that the Acanthus scheme was being used an example of how Foster’s design could be value engineered down to cost £100m, a misconception.
The Case Mr Dhanoa brought a claim through several companies against architectural firm Foster + Partners. Mr Dhanoa proposed to build a luxury hotel near Heathrow and wanted iconic Foster + Partners to design it. The central issue was the cost to build Foster’s design: Mr Dhanoa’s case, which the court accepted, was that he had a budget of £70m; Foster’s design was initially costed at £195m; but Foster said that the build could be value engineered down so as to cost £100m. That cost proved to be impossible – as architectural experts on both sides agreed – and Mr Dhanoa could not obtain funding. The Claimants claimed for a variety of professional fees expended in reliance on the firm’s advice, and loss of profits from failure of the build.
• Crucially, in adopting his own methodology, he refused to make any assumptions, asserting that assumptions were unsafe. Mr Justice Fraser said that this approach had “no intellectual justification whatsoever” and was “wholly flawed ... verging on nonsense”. The judge said he could not avoid reaching the conclusion that the Defendant’s expert refused to make the assumptions “because he feared the answer to the exercise would harm the case being advanced by Fosters”. Harsh words. Other evidence in the case, and the court’s findings on causation of loss of profits, had the effect that this expert evidence had no material effect on the outcome.
The court held that, on expert evidence, Foster’s advice was negligent. The professional fees incurred in reliance on that advice were recoverable as damages. However, the inability to obtain funding was not caused by the negligent advice; it was caused in part by the lack of cash reserves of the Claimants and in part by the global financial crisis. Accordingly, the chain of causation was broken, rendering lost profits unrecoverable.
Expert’s negligence In other circumstances, the judge’s criticism might have founded a case of negligence against the Defendant’s expert. The law on suing an expert is uncontroversial. Since Jones v Kaney (2011) UKSC 13, an expert giving witness evidence does not have immunity from suit. Expert witnesses owe duties to the court, but also duties to his client. It is worth remembering what Lord Dyson said:
The Expert Evidence The court heard witness evidence from six experts; architects, quantity surveyors and accountants, one of each for the Claimants and for the Defendant.
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duty to the court cannot be in breach of duty to the client. ... If (the expert) gives an independent and unbiased opinion which is outside the range of reasonable expert opinions, he will not be in breach of his duty to the court ... but he will be in breach of the duty owed to his client�.
Dr Ian Starke Consultant Physician in Stroke Medicine and Geriatric Medicine MSc, MD, FRCP (Lond), FRCP (Edin)
The ability to sue the expert directly sits alongside other remedies of seeking costs orders against experts, and complaining to the expert’s governing body (if any).
Dr Starke has been a practising Consultant Physician in Stroke Medicine, Geriatric Medicine and General Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988.
In this case, the expert failed to follow an agreed methodology. Not only will this be unhelpful to a court, it may result in the evidence being rejected entirely, leaving the instructing party without an opportunity to test the other side’s position and assert a viable alternative. Moreover, the expert here might have arrived at a view that was outside the range of reasonable opinion. In either case, there might have been a case in negligence for the expert to answer.
Dr Starke provides expert reports for clinical negligence and medical injury cases in stroke medicine and geriatric medicine and on fitness to practise. He has provided expert examinations and reports for immigration and HM prison services. He is able to assess clients within or outside London. Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net
The severity and extent of judicial criticism in Riva might well give expert witnesses reason to pause. On the facts, the criticisms came to nothing actionable. But it is easy to imagine how, in different circumstances, clients might seek to recoup losses caused by experts failing in their duties. This article does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole. Many thanks to Emma Hynes at Hardwicke for permission to publish. - www.hardwicke.co.uk
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David Humberstone (AT) M: 07960 753248 E: at@equip2speak.co.uk W: www.equip2speak.co.uk Based: NW Coverage: UK EXPERT WITNESS JOURNAL
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The Architect Expert Witness and Building Defects by Richard Morton, RM Architects All aspects of expert witness work in construction litigation have their specific challenges and complexities, but work on cases involving construction defects, especially when there is a parallel repair brief, can be particularly involved and even hazardous. On one occasion, returning from a site in Somerset, I was almost arrested when a police officer spotted what she thought was a consignment of heroin in my case – it was actually a sample of failed render which I needed for testing – and in another case involving major repairs to an occupied block of flats I found that my site visits were being logged by the police because one of the tiniest flats was being used as a brothel!
developments where incorrect details had been passed from one contract to the next. A drawing for one particularly poor parapet detail had been passed from one team to another with a hasty note added: ‘We’ve had a lot of problems with this; hope you have better luck.’ - but to no avail. Nor were the problems confined to those caused by incorrect and inadequate detailing; poor construction and lax site inspection were also major contributory factors. The first difficulty for the expert in cases like this is simply to discover what the problems are. Detailed site inspections, analysis of the files and occupier interviews all help to build the picture but it can still be very unclear how many separate problems you are dealing with and in one case a major drain failure below the building only came to light very late in the day when a resident, who had been refusing to give access for inspection, ran off leaving a small mountain of unpaid bills and a flat with damp patches half way up the walls.
Happily, I came through these and other incidents unscathed but there are many other aspects of building defect work which make it notably different from investigations of planning or contract disputes. First is the fact that there may well be dozens or even hundreds of different defects arising from poor design and construction of a single project and each one will probably need to be separately investigated to find out what has gone wrong, who is responsible and how serious the problem is. Then, if you have a dual brief to report and repair, you will also need to work out what to do about each one and to incorporate that into an overall repair contract. This can, as you may imagine become extremely complex and time consuming.
Once the problems affecting each development have been identified- and there may sometimes be dozens of different failures to deal with – the next essential is an understanding of ‘building pathology’. The huge damp marks on the ceiling of a particular flat may result from a roof failure, from interstitial condensation, from the builders’ failure to connect the bath in the flat above or from the empty scotch bottle bridging the cavity of the external wall. The huge cracks in the brickwork may be caused by clay heave distorting the foundations where a large tree has been removed, by the lack of movement joints or by the failure to ensure that balconies are adequately fixed back to the main building structure.
My first involvement with such work was in the 1980s when the practice I was with then was instructed by a Housing Association to investigate two seriously defective developments in Barnet. This was in the days when we still built large numbers of houses and flats in the UK and in this case an architect, an engineer and a QS had set up our client Association and then been swamped by approvals for 30 or more projects in a very short space of time. The schemes, moreover, were in many cases intricately designed, increasing the numbers of dwellings on constrained sites but, at the same time, generating great numbers of complex detailing and construction problems.
With every problem, scrupulous analysis is needed to achieve a real understanding of the cause or causes before any attempt can be made to consider questions of negligence and it may also be necessary to reach a view on precisely when any defect occurred. This was particularly so at the time of my first involvement with building defects work, when case law on architect’s liability in tort and on limitations relating to latent defects was changing constantly.
Almost inevitably, as the schemes were finished and occupied, it became clear that great numbers of them were riddled with serious defects, often with the same problems rearing their heads in several different EXPERT WITNESS JOURNAL
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hard-pressed architects and it was certainly a difficult time for the profession. Mandatory fee scales had recently gone but there was no possibility of practicing as a limited company, judgements were pushing liability ever further into the future and Housing Corporation policy was to pursue architects in all cases. PI insurance premiums shot up to form 10% or more of turnover.
designs. I think it is entirely right that architects should push against the limits to create exciting new buildings, but at the end of the day a piece of concept design which has gone completely off the rails is as much a defect as bridged cavity or a leaking parapet detail. RM Architects was founded in 2012 by Richard Morton and Yarema Ronish, together with a small team of specialist designers. During 25 years with Sidell Gibson, including 12 years as a partner, Richard completed a wide range of residential, commercial and historic building projects. These have included City offices, hotels, luxury residential and work on a number of important listed buildings. Richard is a specialist in retirement housing, including sheltered housing, assisted living and care homes. He has won over 60 design awards for 40 completed developments nationwide, and now advises Beechcroft, Anchor, Hanover and other leading providers. Yarema's extensive experience has given him a particularly strong technical grounding in residential, commercial and listed building projects in London. RM Architects 70 Cowcross Street, London, EC1M 6EJ T: +44203 179 9030 E: info@rm-architects.com W: www.rm-architects.com
Looking at the matter more dispassionately though it can never be right if a few architects take to cutting corners, however difficult the circumstances, and identifying those whose work is negligent has to benefit the profession in the long term. Often such negligence results from obvious causes - persistent failure to resource the work adequately and the use of junior staff without checking their work for instance – but there is also a particularly architectural failure where the client’s best interests are swept aside as the architect single mindedly pursues his vision of ‘his’ building. I have come across a case recently where, as part of his design concept for a house, the architect drew up an entirely bespoke window system with very large sliding and pivot doors, instead of selecting a manufacturer’s system which had been through the processes and testing of a normal product design programme. Great care was lavished on the details, large numbers of drawings were produced and the finished windows look very fine but they were hugely expensive, the long lead in times contributed to serious delays, they are not properly ‘weathered’ to keep the rain out, they do not include effective thermal breaks to cut condensation risks, they do provide properly for ventilation and they are so enormously heavy that it usually needs two people to open them.
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This is difficult territory because I consider it essential that experts should also be involved in normal architectural practice and in that part of my life I spend a lot of time and effort resisting attempts by clients, quantity surveyors and others, to ‘dumb down’ my
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Disputes Between Residential Neighbours are a Growing Problem, and Many of them are Ending up in the Courts by Martin Burns, RICS When neighbours go to court, both risk losing more than just an argument. The consequences of litigating a residential neighbour dispute is that the winner is often also a loser. Litigation can be inordinately expensive. Both neighbours will inevitably lose a great deal of money, and many can end up damaged emotionally and socially.
Against this cheerless view of the reality of residential disputes, there is hope for the future. This comes in the form of high level commitment from the government and judiciary to find and implement ways to help neighbours resolve disputes quickly and amicably, and avoid the need for court action. The Civil Justice Council (CJC) at the request of the Ministry of Justice (MoJ), has been looking at ways to improve the resolution of neighbour disputes. A Working Group set up by the CJC has been consulting with the Royal Institution of Chartered Surveyors (RICS) and the Property Litigation Association (PLA), which have been working together to develop helpful guidance and alternative methods to resolve disputes between neighbours.
After months, maybe years, of dispute, involving a long and expensive route to court there will be a few days of emotionally charged judicial hearing and the immediacy of a judge’s decision. Then, in the days and weeks that follow the court’s judgment, each neighbour must contemplate the future. The neighbours may continue living next to each other, albeit most likely in continued state of hostility. Alternatively, one or both neighbours may decide to sell up and move away, only to discover that litigating their dispute has had a negative impact on the price they can achieve in the sale of their property.
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The PLA has recently published a protocol for neighbour disputes which places Alternative Dispute Resolution (ADR) as central to resolving boundary issues. RICS receives 1000s of phone and email enquiries each year from residential owner/occupiers,
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who have fallen out with their neighbours. RICS provides comprehensive guidance on boundary issues and currently offers a specialist neighbour disputes ADR service.
Because of its adversarial nature, litigation can only serve to increase polarisation of views, but steering disputing neighbours away from litigation represents a big challenge. Even so, it is apparent that all those involved in the CJC initiative are committed to finding a way to imbed a default ADR system into the preaction stages, and head off disputes before the court stage where battle lines tend to be very firmly drawn. The PLA and RICS are now in discussions about a joint ADR system, which will be reliable and cost effective. Current thinking is that the ADR system should provide disputing neighbours with options e.g. for non-binding determination or mediation. It should also give them access to impartial professionals who have legal and/or technical expertise, and genuine experience in dealing with residential boundary disputes. Once the new ADR system is set up, which should be soon, it will be possible for the CJC and judiciary to construct some robust messages to encourage ADR and perhaps also warn on cost consequences if the messages are ignored. This will hopefully improve the uptake of ADR, and reduce the number of residential neighbour disputes that end up in court.
Given that it is unlikely to find favour with senior judiciary, it seems the CJC Working Group will not recommend a pre-action protocol. However, in considering the input it has received from RICS and the PLA, it could well include in its final report to the MoJ recommendations for courts to encourage would be litigants to use a joint RICS/PLA dispute resolution procedure. A real challenge for the CJC, and others, is overcoming the intransigence of neighbours who want their day in court. Neighbour disputes often involve people who have gone well past the point where they are ready to have an open dialogue with each other. Disputing neighbours, who are already exploring the litigation option, are seldom able to maintain an open mind. Many will have let go of the ability to accept evidence or information that may cast doubt on their cast iron assumptions on a matter such as the location of their boundary line.
Martin Burns – 29 March 2018
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Mr Jon Knights
Tim Davies a Chartered Building Surveyor, and the practice principle and founder of T R Davies Limited, (established in 1998). An established independent practice providing property related services throughout South Wales and Nationwide.
Independent Materials & Concrete Technology Consultant BSc MSc CEng CSci MIMMM FCS FICE
Tim has over 30 years experience, he is a fully qualified Chartered Building Surveyor and RICS accredited Expert Witness. He has also undertaken specific Bond Solon training in both Civil and Criminal expert witness fields. Tim is a registered property expert with the National Crime Agency, working with police and trading standards, principally dealing with rogue traders.
Jon Knights is a Materials Consultant with over 20 years experience in concrete technology and materials consulting. He has comprehensive experience in design, specification and testing and investigation of all aspects of construction materials, concrete technology and construction processes, as well as expertise in concrete durability, coatings and protection of concrete.
His extensive experience and expertise covers; Expert Advisor/Expert Witness Work – Civil Expert Advisor/Expert Witness Work – Criminal Residential Surveys and Valuations Building Defect Pathology (defect analysis/investigation) Domestic Workmanship Standards Domestic Building Disputes and Quantification Surveyor Professional Negligence Building Related Insurance Claims Party Wall Matters Building Conservation/Period Buildings Structural Surveys Dilapidations Insurance Claims Landlord and Tenant issues
Jon has extensive expertise in forensic investigation of construction materials and products, deterioration mechanisms, and analysis of root cause along with experience in a wide range of condition survey techniques and a nalytical interpretation of test data. He has a broad knowledge of residual life optimisation and repair and asset management strategies. Expert Training includes; Expert Witness Reporting, Witness Familiarisation/ Cross Examination/ Civil Procedures Contact: Jon Knights Tel: 07837 486 850 - Mobile: 07837 486850 Email: jonknights@jkmc.co.uk - Website: www.jkmc.co.uk Address: 16 The Rise, Calne, Wiltshire, SN11 0LQ
Contact Details - Mr. Tim Davies Chartered Building Surveyor, Valuer and RICS Accredited Expert Witness BSc (Hons), MRICS, MAE, Cert EW (Civil and Criminal) Windsor House, 107 Talbot Road, Talbot Green CF72 8AE Tel: 01443 229576 - Alternate Tel: 02920 668855 Email: info@trdavies.co.uk - Website: www.trdavies.co.uk
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To find out more: t 024 7686 8584 w rics.org/expertwitnesscertificate e drstraining@rics.org EXPERT WITNESS JOURNAL
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What’s the Real Opportunity for Drones in the Surveying Industry? by Eric Van Rees Discussions about the potential impact of drones in industries like agriculture and first response have been going on for a long time now, and there are clear benefits and efficiencies that drones will be able to bring to these industries. However, talk about how processes and workflows might change these industries often comes at the expense of the tangible benefits that have already been quantified for surveyors that have adopted drone technology. Those benefits have the potential to grow and scale while professionals in other industries are at the beginning phases of their adoption process. Does that mean the survey space represents the greatest potential for the commercial application of drone technology? Seeing how surveyors can do more with less with the technology and data from Skylogic Research, which identifies surveying and mapping industry as the most profitable of all the segments, it certainly seems as if the opportunities in the survey space are as unique as they are lucrative. However, it’s important to focus talk about opportunities in this space or any other around how business problems are being solved by drones, as opposed to solutions that may or may not be able to address these issues. Integrating drones in surveying workflows Excitement around the opportunities drones represent is easy to understand. Surveying companies have been directly and indirectly challenged to raise efficiency after experiencing a growing demand in the last year that is expected to continue in 2018. Drones have proven that they can help create these efficiencies, and it’s a benefit the technology enables by providing surveyors with more options related to how they process their data as well as being able to reduce man-hours by up to 60%. Does that mean the opportunities in this space are just about acquiring a drone? The reality is that land surveying is a challenging profession which requires a special license. In nearly any state, producing topographic data requires a having
a state-issued licensing survey, which takes many years and a lot of experience to get. This reality means that the opportunities in the space are best realized by surveyors who can use drones, as opposed to drone operators trying to figure out how they can provide value to surveyors. It’s one of the reasons that many have found it to be much preferable to train current surveyors to be drone operators. “It makes much more sense to utilize current field survey staff who are already going out to project sites to just operate the drone as part of their field workflow,” said Daniel Katz, Co-founder at Aerotas. “Also, surveyors already have to be highly skilled technology operators, so a drone is not too far a leap for them.” Aerotas creates turn-key drone systems for land surveyors and helps businesses across industries develop in-house drone capabilities, but an important consideration when it comes to creating value for their clients surrounds being able to discuss drone technology as a relevant tool to be utilized as necessary, rather than a piece of technology that’s coming in to replace everything. Headlines and reports centered on the potential impact of drone technology have raised expectations and gotten stakeholders asking about things like creating an entire drone program, and that talk underscores the opportunities many see in the space. However, it’s talk that can lead those stakeholders down an inappropriate avenue, which means they often have to pull back and focus on the right question before becoming too focused on a specific answer. “Drones are not going to be your silver bullet to every problem,” said David Boardman, CEO at Stockpile Reports. “They can definitely be the right tool for a given problem, and they’ve opened up new approaches that have created incredible efficiencies, but if you’re really focused on the problem of materials management, you can’t just consider a specific piece of hardware. How do you help solve that business problem? That’s what matters.”
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The business problems in the surveying space can be dealt with and resolved in unique ways because of the capabilities of drones, but the opportunities here are related to what it means to see those problems solved, not because all of them can be resolved with drones. Of course, each project is different and requires its own approach, which makes it hard to generalize about data collection time or the division between the amount of work done by a field crew or a drone. There will almost always be some points that need ultra-high accuracy as well as critical points that are obscured from the air. All of which means that drones are rarely going to be the only tool used on a survey project, and their true value in this sector needs to be better understood.
That kind of understanding is where and how the opportunities for drones in the survey space are being realized and created, and they’re as real as they are powerful. In many cases, surveyors merely need to understand that using a drone doesn’t represent that big a change for them if they have the right SOPs for data collection and the right workflow for producing their final linework. It’s proof that these opportunities are built on the methodologies and approaches that have been employed for decades now, rather than something completely new which is going to redefine the industry. It’s a proposition that people on both sides of the issue need to work through and understand though. Who’s in the best position to seize the opportunities? For stakeholders in the survey space, a topic that is often debated is whether or not an organization should build their own drone program or outsource. Much like questions related to “photogrammetry vs LIDAR” though, it’s not an either/or proposition. In fact, being able to understand the nuances associated with specific issues like photogrammetry/LIDAR is what helps define where and how the value can be created with drones, and whether or not service providers might be able to offer that value.
Quantifying the value Headlines that talk up the billions of dollars in drones have fueled an incredible amount of hype for the technology, but that hype has not defined where the opportunities for drones reside. The reality associated with what’s possible, and what will be possible, is the only thing that really matters, and a recent report laid out these realities in specific detail. The 2017 Drone Market Sector Report, an 88-page report from the team at Skylogic Research, included the results of a survey of over 2,600 drone buyers, service providers, business users, and software service users, as well as insights into the verticals that use drone data. The report found that the surveying and mapping industry is the most lucrative of all the segments, even though it will not be the biggest. In the top 10 of drone services making over $100,000 per year, the first place is taken by surveying/GIS/mapping services, followed by aerial photography and video. The distinctions between these sectors underscore the very different opportunities represented by each.
“In general, usage of LiDAR drones vs. lower-cost drone-based aerial mapping/photography systems that generate point clouds depends on the clients accuracy requirements,” Snow mentioned. “A good drone service provider knows when to use each to provide the best product at the right price.” Service providers that can do so will be able to take advantage of the opportunities in the space that drones have opened up. Having the expertise to provide this kind of insight, before talk about drones or any other piece of technology is discussed, is critical though. These kinds of insights can drive the creation of incredible value, which can then be realized in ways that may or may not incorporate drone technology.
“Surveying / mapping / GIS and aerial photography /video are two very distinct types of drone services,” said Colin Snow, CEO and Founder of Skylogic Research. “The first centers on creating maps. The second centers on images or video for media production.”
“Everyone is really excited to see what’s possible with drones,” Boardman said. “That can be a fine place to start, but the conversation really needs to transition to what business problems can be solved with them. If that’s not something an organization is prepared to do, they might suddenly find themselves with a staff of people flying a fleet of expensive drones. At some point they’re going to have to answer questions about their core business, and whether or not they really want to buy, maintain and upgrade a drone fleet.”
These very different needs and requirements further underscore where and how opportunities in the survey space will be most prevalent. Being able to do things like quantify distinctions between post-processing software for drone imagery and laser scanners is part of what it will mean to seize the opportunities being created in the space. Doing so is about understanding where and how all of these solutions can be best utilized.
Setting up an entire drone program obviously isn’t a fit for some organizations, but there are others where doing so can make sense. Sorting through these issues and defining what value that kind of setup or any other could look like is where the real opportunity in the space resides. Professionals that can work through distinctions related to what solution is going to create the most value in the survey space have a
“The right imagery-based software will enable a surveyor to get to a final surface, line-work or contours massively faster than even the most user-friendly laser scanner software,” Katz continued. “However, there´s a trade-off as laser scanner software has to handle massively larger and more complex laser scanner data types.” EXPERT WITNESS JOURNAL
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unique opportunity, because more people in this sector are asking these questions than anywhere else in light of the way UAVs have proven they can make a given task faster, cheaper or safer.
Electrical Investigations
The desire to figure out what it means to effectively integrate drones into a surveying business or workflow showcase why the opportunities that exist for drones in this space are especially lucrative. However, being able to take advantage of them is more about insight and expertise, rather than specific pieces of hardware or technology.
Dr Antony Anderson CEng FIEE Electrical Consultant and Expert Witness
About the Author Eric Van Rees Eric van Rees is a freelance writer and editor. His specialty is GIS technology. He has more than nine years of proven expertise in editing, writing and interviewing as editor and editor-in-chief for the international geospatial publication GeoInformatics, as well as GIS Magazine and CAD Magazine, both published in Dutch. Currently, he writes about geospatial technology, programming and web development. See more from him on SPAR3D.com
Investigates and reports on causes of electrical system & machine failures including alleged automobile cruise control/electronic throttle control malfunction (uncommanded sudden acceleration) Capability Statement on electrical failure investigations Offers ideas and solutions the improve design/manufacturing processes
www.antony-anderson.com 26 Westfield Drive, Gosforth, Newcastle upon Tyne, NE3 4XY Tel +44 (0) 191 285 4577 Email: antony.anderson@onyxnet.co.uk
This article first appeared in Commercial UAV News Many thanks for permission to publish www.expouav.com/news/latest
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Over the following pages are articles by experts who operate in the South West of England and South Wales.
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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Bristol Scientists to Study how Porcupines Could Improve Heart Surgery Scientists at the University of Bristol are to study how stopping Porcupine – a protein named after the spiky rodent – could improve heart surgery.
The results could identify whether Porcupine-blocking drugs can prevent vein graft failure in people with heart disease.
Professor Sarah George has been awarded £140,000 by the British Heart Foundation (BHF) to investigate if blocking the protein could help people who are having heart bypass surgery.
Sarah George, Professor of Cardiovascular Signalling from the Bristol Medical School: (THS) and Bristol Heart Institute, said: “Bypass surgery is one of the most important surgical procedures for treating heart attack, but it’s not as successful as we’d like.
In heart disease, fatty material builds up in the walls of blood vessels restricting the flow of blood to the heart. This can be treated by bypass surgery where a piece of vein is taken from the leg and used to circumvent the blockage and restore blood flow. Around 16,000 coronary artery bypass graft operations are carried out in the UK each year. However, the procedure does not always work for long as the newly grafted vein can thicken, narrowing the vein. Professor George and her team at the Bristol Medical School; (THS) and Bristol Heart Institute are working on a way to prevent this.
“When the vein is grafted in, it inevitably causes damage and creates inflammation. The body tries to repair the damage by producing new cells to line the walls of the vein. This process thickens the vein, reproducing the problem that doctors were first trying to address. “But by blocking the signal to produce new vein cells, we believe the narrowing process can be prevented. “If successful, it may provide us with a way of improving the success of bypass surgery and helping the thousands of people who have the operation each year.”
Previous research carried out in her laboratory has shown that molecules called Wnts play a key role in the thickening of the grafted vein. Specifically, they found that the molecule Wnt4 caused blood vessel cells to increase in number, while a second molecule, Wnt2, made the cells move to the site of the graft causing the thickening.
Dr Subreena Simrick, Senior Research Advisor at the BHF, said: “Currently, there’s no way of stopping the narrowing that occurs in some bypass patients. “This important project could, for the first time, identify a mechanism which can be targeted to stop vein grafts failing. “Research like this, funded by the public’s donations, is central to winning the fight against heart disease, and making the advances that could ultimately save and improve lives.”
The activity of Wnt2 and Wnt4 is controlled by a protein called Porcupine. In this project, Professor George will test whether blocking this protein can prevent vein narrowing in mice and human veins.
Stuart Winter MD MB. ChB, BSc, FRCS (ORL-HNS) Consultant Ear Nose and Throat Surgeon Oxford University Hospitals NHS Trust Honary Senior Lecturer University of Oxford
Dr Gary Hartnoll
Stuart Winter is a Consultant Ear, Nose & Throat (ENT) Surgeon in Oxford with an NHS consultant practice based at the John Radcliffe and Churchill Hospitals.
Consultant Neonatologist
MA (Cantab.), MB, BCh, MD, MAE, MRCP, FRCPCH
Stuart has a specialist interest in tumours of the head and neck, both benign and malignant and is a member of the Oxford Head and Neck Multidisciplinary team. Stuart also runs a specialist swallowing clinic at the John Radcliffe Hospital.
I have been a Consultant Neonatologist since 1999 working in tertiary level neonatal units covering both medical and surgical conditions. As well as being a full-time clinician I have also held positions as director for my unit and board positions for the operational delivery network for neonatology in NW London. I currently hold the position of Associate Medical Director for Clinical Informatics and Transformation at Chelsea and Westminster Hospital and I am a Medical Director for the UK Resuscitation Council Newborn Life Support course.
In addition to these services he offers expertise in all aspects of General ENT including problems related to Snoring, Lumps in the Neck or Salivary Glands, Voice Disorders, and Sinus Disease. Private Referrals Practice Manager: Kate Taylor Appointments: 01865 307 542 Fax: 01865 307 693 E-mail: kate.taylor@nuffieldhealth.com Website: www.oxford-ent-doctor.co.uk
My clinical practice covers all areas of neonatal medicine, including the medical care of babies with surgical problems and premature infants. I have recently become a Member of the Academy of Experts and have been awarded the Bond Solon Cardiff University Certificate in Civil Law
Consulting rooms: The Manor Hospital Beech Road, Headington, Oxford. OX3 7RP - Telephone: 01865 307 777
Mobile: 07541 110 064 - Email: g.hartnoll@btinternet.com Address: BM Box 2512, London, WC1N 3XX Area of work: Greater London and Nationwide
The Manor Hospital The Foscote Hospital, 2 Foscote Rise, Banbury, Oxfordshire OX16 9XP Telephone: 01295 252281
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UWE Bristol supports Engineer Leaders Award for South West England The University of the West of England (UWE Bristol) and DE&S (part of the Ministry of Defence) have teamed up with Primary Engineer Programmes and launched the South West England Region’s Primary Engineer & Secondary Engineer Leaders Award, a national engineering competition for schools.
selected and built by engineering students at UEW Bristol. Their aim will be to take the concept, develop the design and build it into a full-scale functioning prototype, giving the school children who entered the competition an insight into the process behind designing and manufacturing a product.
2018 is the Year of Engineering, a Government-led national campaign to increase awareness of what engineers do. UWE Bristol and the MOD’s Defence, Equipment and Support (DE&S) organisation are the partner organisations of the Primary Engineer & Secondary Engineer Leaders Awards taking place in the South West of England.
Shortlisted and winning entries from the Primary Engineer & Secondary Engineer Leaders Award submitted by primary and secondary school children will then be displayed at an exhibition at the University on 30 June. There will be two winners per year group and an overall winner. Laura Fogg-Rogers, who coordinated the event and is Senior Research Fellow in UWE Bristol’s Science Communication Unit said, “Engineers are highly creative people who can help to solve many of society’s problems. It’s a really collaborative profession, where you have to work together in teams to see your visions and designs come to fruition. The range of roles and careers is really diverse, and that’s what we’d like to emphasise to all young people, particularly girls. You can make your own mark in engineering!”
UWE Bristol will also host the South West competition awards and exhibition at the end of June to help promote the importance of science, technology, engineering and mathematics in schools. The competition aims at enabling school pupils to meet and learn from engineering students and professionals, before answering the question “If you were an engineer, what would you do?” by identifying a problem in society that engineering could solve and devising a solution. One winner’s design will then be
Schools can register for the Awards at www.leadersaward.com
Engineering Advisory Services to the Insurance Industry McLellan and Partners Ltd is a leading independent multi-disciplined engineering consultancy. The Insurance Advisory Team have been operating for over 20 years providing comprehensive consultant engineering, quantum, costing and other advisory services to insurers, loss adjusters and solicitors across the world. McLellan has a clear understanding of the priorities and imperatives gained through working with Owners, Insurers, Reinsurers, Loss Adjusters, Brokers, Solicitors and other professionals. We understand the need for a rapid, responsive and sensitive approach to the work we undertake and the importance of local issues such as costs, legislation, productivity, methodologies and available resource and how they impact on the claims.
Matthew Hinckley - Tel: 07976 456 470 - E-mail: matthew.hinckley@mclellan.co.uk Simon Arnold - Tel: 07791 554 467 - E-mail: simon.arnold@mclellan.co.uk Telephone: 01932 343271 - St Andrew’s House, West Street, Woking, Surrey, GU21 6EB
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DRC Forensics Ltd is a firm of Chartered Accountants specialising as Forensic Accountants & Expert Witnesses Our Directors are:David Cook JP FCA MAE who is a Justice of the Peace, a Chartered Accountant, accredited by the Institute as a Forensic Accountant, A Member of the Academy of Experts, accredited by them as an Expert Witness, and is a member of the Professional Negligence Lawyers Association and the Society of Expert Witnesses. Chris Gahagan LLB FCA, who is a Chartered Accountant, an Associate Member of the Academy of Experts and a member of the Society of Expert Witnesses with experience in commerce as well as professional practice. We have considerable experience in Forensic Accounting, with David in particular having given evidence in Court, both Criminal and Civil, on numerous occasions. We offer a complete range of service, where we pride ourselves on our analytical and interpretive skills, personal involvement, ability to meet the requirements of the case and deadlines and our cost effective approach.
CPR and to give evidence in Court and cope with the rigours of cross examination. They can be acting as:• A party expert for the Claimant/Prosecution or the Defence, which is still probably the position in the majority of cases, particularly in criminal cases. • A Single Joint Expert, where, either the parties agree on this or the Court specifies it. This will often be the case in Matrimonial disputes, where, for example the main asset and source of income is a private company and the value, ability to extract income and capital and tax position need to be assessed.
The main areas of work that we cover are:• Fraud • Money Laundering • Confiscation Orders • Loss of Profit or Earnings • Professional Negligence • Commercial Disputes • Business valuations, in dispute situations • Matrimonial disputes • Expert Determination
• An Independent Expert to determine a financial dispute. This often arises under the terms of a contract, where it is specified that if the parties cannot agree on a financial matter it will be determined by an Independent Accountant appointed by agreement between them or, failing that, by the President of the Institute of Chartered Accountants.
Forensic Accountants deal with a range of legal disputes involving money, which can be criminal or civil. In the vast majority of cases they are instructed by Lawyers, sometimes by Accountants, Insolvency Practitioners or Financial Advisors (even litigants in person, although that is fraught with difficulties), to investigate a situation, produce an Independent Expert’s Report and if necessary give evidence in Court.
• A Shadow Expert, which can arise with either a Single Joint or Independent Expert, where either party feel they would benefit from Forensic support/advice in dealing with their position. We have acted in all these capacities many times. Some examples of the type of cases that our firm have acted on are:Professional Negligence An MBO by a one third director shareholder of the other two one third director shareholders. Completion was agreed by fax late on Friday afternoon when it was too late to transfer funds. The partner had already left for the bank holiday weekend so
A Forensic Accountant needs a comprehensive knowledge of accounts, financial and business transactions combined with analytical and interpretive skills, direct involvement, ability to meet the requirements of the case and deadlines, a cost effective approach, the ability to produce a clear relevant independent report complying with the relevant EXPERT WITNESS JOURNAL
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an assistant accepted completion subject to agreeing payment of interest up to Tuesday. On Saturday the purchaser director received information that a major customer had been lost and pulled out of the deal. The vendors sued their solicitors on the basis that completion had taken place and that they had suffered loss due to the greatly reduced value of the company. The case went to trial in the High Court in London with the main issues being whether or not completion had taken place and if so the amount of loss suffered. Acting for the Defence, apart from evidence on the practical position, we had to value the company following the change in circumstances both with and without a minority interest, assess the value of security and value loan notes on a discounted basis. The case was decided in favour of the Defence, both on quantum where the Judge gave his assessment first and on causation. An unusual aspect was that at a further without prejudice experts’ meeting at Court, the Claimant's expert admitted that, as was pointed out to him, the treatment of cash in his valuation was incorrect but that he would not lose face by admitting that in Court and that he was very worried for his clients as they had been persuaded to go to trial by over aggressive lawyers and were likely to lose over it.
a private company is one of the major assets and income source and the company has to be valued and the ability to extract income or capital assessed, sometimes looking for disappearing income or funds. We had an unusual case acting for the widow and second wife of a wealthy businessman who had died. She was left with relatively little, partly by the terms of his will and partly by actions of his children in relation to the family business, pension rights and trusts. Action was taken under the Inheritance Provision Act. Acting for the Claimant, we had to value the company, investigate the dealings on the pension scheme and on the trusts, arrive at the effective total value of his assets for the purposes of the Act, advise on the tax situation and how matters could most efficiently be dealt with, so that a fair share for the widow could be assessed. We were able to show that this was £16m and were told by our instructing Lawyers that our report was a bombshell to the Defendants and their Lawyers. The matter was settled at Mediation with the widow receiving a fair settlement. Criminal Trial This was a Crown Court fraud trial relating to a director of a construction company, accused of fraud against a major supplier and customer, in conjunction with a director of that company. The other director had already been convicted of fraud against his international company.
Commercial The client company was supplied with defective goods which it used in its manufacturing process, resulting in faulty goods (custom built display stands) being supplied to customers as the faults did not become apparent until later when the goods were in use. Acting for the Claimant, we had to assess, quantify and report on the losses suffered by the company which in our view were in respect of:• The time and costs involved in identifying and solving the problem. • The cost of rectifying faulty items. • The cost of the faulty materials. • Compensation paid to customers. • Loss of business and goodwill which was the most difficult area to assess.
The basis of the Defence, for whom we were acting, was that the Defendant and his company colleagues knew nothing of the fraud, entered into transactions with someone that they were used to dealing with, supplied cash for subcontractors, as they had in other cases, had made their usual profit margin on the jobs and had dealt with the transactions correctly. We had to examine the transactions in detail and report on whether they were correctly recorded in the company's records and accounts, correctly dealt with for VAT and Corporation Tax and that the director had derived no personal direct benefit from the transactions, all of which we were able to do. We also had to look at and comment on how the transactions were dealt with in the other company's records and their very poor internal control procedures for verifying and authorising transactions
The conduct of the case by the Defence was a little unusual as they appeared to accept liability then changed their stance and cancelled an early mediation. They then appointed Forensic Accountants, who were said to be producing a report, but instead acted rather as Shadow Experts, producing points for the Defence Lawyers to challenge aspects of our position and it looked as though the case was going to Trial. Unexpectedly they agreed to a mediation, where the Defence points were robustly refuted and the matter was settled, with the Claimants receiving fair compensation.
After a fairly grueling cross examination our evidence was upheld and the Defendant cleared. Criminal POCA This was a fraud against an Insurance/Investment company by an individual who discovered by accident, that he could "fix" the time on fax instructions so that he could buy or sell units after he knew how they were performing and make guaranteed profits. He pleaded guilty so that the case was all about the level of compensation to the insurance company and the Confiscation Order under the Proceeds of Crime
Matrimonial Our usual involvement in matrimonial eases is where EXPERT WITNESS JOURNAL
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Act (POCA). The prosecution claimed that the Defendant should pay both £4.5m compensation and £5.5 confiscation, with the bonds being worth some £4.5m and using his other assets, property and investments to pay the balance.
expanding UK company selling top up Health Insurance in France to French Citizens. The two 50% shareholders wanted to go in different directions, could not agree on value and needed an independent valuation. This had all the normal aspects of a valuation with the increased difficulty of arriving at maintainable profits where these had increased so quickly and substantially, with the added factor of how this would be affected by increases in insurance taxes and a large unknown, the effect of BREXIT!
Our first task was to correct the figures being claimed for compensation to £3.5m and for confiscation £4.5m and to point out that cashing the bonds, as was being proposed, would attract tax of £lm, which should either be taken into account in the compensation figure or that this should be dealt with by the insurance company taking back the illegal profit direct from the bonds so that tax was not a consideration. The next task was to argue and show that the Defendant’s other assets were not derived from crime and that the compensation should be paid first with confiscation only being paid to the extent that there was a balance of value left in the bonds, some £lm. This would leave the other assets for the Defendant’s now divorced wife and family.
HMRC As mentioned above we are involved in dispute valuations with HMRC and we do have dealings with them in another area. In our experience it is quite usual following a criminal trial, where there are relevant aspects, for the Prosecution to pass information to other agencies such as HMRC or DWP. We find that this particularly and often applies to HMRC where there seems to be an increasing tendency for the Prosecution to do this particularly where it seems at all likely that something further can flow from it and they are unhappy with the result of the case.
At a hearing before a High Court Judge in London, he found in the Defendant's favour.
A slightly unusual example of this is was in respect of a business providing attachments that would enable equipment such as DVD players and games consoles play none compatible items and pirate versions. He was charged with offences by Trading Standards and then the case was taken over by the SFO who took it to trial, where the Defendant was acquitted, a verdict with which the SFO were not very happy. He had not declared his profits for the four years that he had been trading, so the SFO contacted HMRC and took over handling the tax position.
Expert Independent Determination We were appointed by the ICAEW under the terms of a contract to act as Independent Accountant to determine a large financial dispute between a District Council and a Contractor. In this case, as is usual, operating to our timetable, both parties made their submissions and then their responses. In this case, due to the complexities, they were both given the opportunity to make a further response and then asked to respond to our points/questions. After a detailed review of the figures, the basis of both parties’ position and considering the relevant factors, the determination was made.
The SFO then issued assessments based on the gross turnover, which produced a very large amount of tax payable. We duly appealed against the assessments on the basis that they were excessive, should be based on net profit and that the matter should be dealt with by HMRC not the SFO. We then received a phone call from a solicitor at the SFO, who was quite patronising, telling us that we obviously were not aware of the provisions of the Proceeds Of Crime Act, under which they were entitled to use gross proceeds, not net profit, and with HMRC’s agreement were fully entitled to deal with the tax position. We should therefore immediately withdraw our appeals as there were no grounds for them.
Valuations Valuations of Businesses in Dispute Situations. This can be Professional Negligence, Shareholder Disputes, Partnership Disputes, Matrimonial Disputes, Probate, HMRC, Company Commercial Disputes and once, a Murder Trial. Normally the valuation of a trading company involves examining the accounts for three to five years, dealing with any discrepancies/anomalies, adjusting things such as management charges, rent, directors’ remuneration etc. to a fair commercial charge for that company, to arrive at maintainable profits post tax. We would then arrive at a relevant Price Earnings Ratio, by using the FT, BVB and the ICAEW library etc. to arrive at a value for the company, also considering the net asset position. Shareholdings would be valued based on their rights, size and influence with account being taken of relevant provisions in the M & A and any Shareholders Agreement.
We replied that he was mistaken, we were very well aware of the POCA position and our clear understanding was that it only applied post-conviction. The client had been acquitted, so that normal tax rules applied and the assessments should be based on net profits. Further in that situation the SFO could only take over dealing with the tax position from HMRC with the taxpayer’s agreement and that was not being given.
An example of a recent valuation that we carried out was in respect of a very profitable and rapidly EXPERT WITNESS JOURNAL
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The caller was taken aback, said that cannot be right, he would consult on the position and come back to us. In due course he did so, apologising profusely and begging to be allowed to deal with the position and undertaking that, if we did so, the case would be dealt with by an Inspector of Taxes on secondment to the SFO, who would come to our offices and reach reasonable agreement with us. Which is what happened.
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In another case, following the criminal trial of the director of a construction company mentioned above, the Prosecution had alleged during the trial that, as part of the operation the company had been issuing fake orders to suppliers in return for acceptance and payment of invoices with no goods being received, with a cash hand back from the suppliers to enable the construction company to fund the alleged fraudulent transactions. This we were able to totally refute at trial (in fact showing that this was completely absurd), but, following the director being acquitted, the Prosecution have passed the papers to HMRC who have raised very substantial VAT and Corporation Tax assessments and have told us that different rules apply to the trial where the Prosecution have to prove their case beyond reasonable doubt, whereas with HMRC it is on the balance of probability and they issue assessments which the company have to prove are wrong.
• Fraud
• Fatal accident
• Money laundering
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• Business valuations
• Professional negligence
• Matrimonial including collaborative law
• Personal injury
• Mis-selling of Hedging Products (IRHP)
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&KULV *DKDJDQ KDV FRQVLGHUDEOH H[SHULHQFH RI YDOXDWLRQV LQ FRPPHUFLDO VLWXDWLRQV DQG LQ GHDOLQJ ZLWK Č´QDQFLDO LQYHVWLJDWLRQV DQG FRPPHUFLDO GLVSXWHV e: chris@drcforensics.co.uk
Tel: 01275 390407 Mob: 07891 492002 .HVWUHO &RXUW +DUERXU 5RDG 3RUWLVKHDG %ULVWRO %6 $1
We are currently assisting the company’s tax advisors and have produced an Expert’s Report completely refuting in detail HMRC’s position, which has been submitted. We await the response and whether this goes to the Tax Tribunal.
www.drcforensics.co.uk
Mr Sarwat Sadek MBBCh, FRCSI, FRCS, FRCS (ORL-HNS) Consultant Ear, Nose & Throat Surgeon I am a consultant otolaryngologist - study of ear, nose, and throat (ENT) conditions - and have been a head and neck surgeon since 2000.
David Bunker is a member of the Academy of Experts and is an experienced mediator, arbitrator and a member of the President’s Appointments Scheme panel. He is appointed by the Institute of Chartered Accountants to deal with disputes referred to it. For over fifteen years David Bunker has been applying his expertise as a Chartered Accountant to the resolution of business disputes. This can take a number of different forms:
I gained my qualifications in Egypt in 1974 and Dublin in 1983, and subsequently my Fellowship of the Royal College of Surgeons in 1999 and my certificate of completion of specialist training in June 2000. I was appointed overseas visiting Professor of ENT at Islamabad Medical and Dental College in 2009. I am a member of the Court of Examiners for the Royal College of Surgeons for England.
Acting as an Arbitrator David is a Member of the Chartered Institute of Arbitrators and is experienced in acting as a single or joint Arbitrator in disputes between shareholders and business partners.
I have been practicing ENT for over 30 years and have a wide range of experience in all aspects of adult and paediatric ENT and head and neck surgery. My special interest is in nasal and thyroid surgery. I have substantive skills in functional endoscopic (minimally invasive) sinus surgery and aesthetic rhinoplasty (nose surgery).
Acting as an Expert Determiner David is a Member of the Academy of Experts and is called upon as an independent expert to report and determine the outcome of disputes arising out of accounting issues, such as the valuation of a business or the agreement of the proceeds on a business sale.
Areas of Expertise include: Industrial deafness, Occupational rhinitis, Facial and neck trauma, Loss of sense of smell and taste in trauma, Deafness and tinnitus as a result of road traffic accidents and Vertigo in trauma.
Party Expert. David is experienced at acting as an expert for one party to a dispute, preparing reports for consideration within that dispute, and working with the appointed legal team.
Languages spoken: English, French, Arabic Contact Details Tel: 01823 342111 Fax: 01823 250 610 Mobile: 07802 974000 or 07717 710706 Email: sarwatsadek@doctors.org.uk Email: janinemedsec@yahoo.co.uk Sarwat Sadek Ltd Somerset Nuffield Hospital, Staplegrove Elm, Taunton, Somerset, TA2 6AN
Mediator David has wide experience as commercial mediator working with parties in dispute. Contact Telephone: 0117 905 5060 - Fax: 0117 905 5061 - www.david-bunker.com Address: Kings House, 14 Orchard Street, Bristol BS1 5EH
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Dorset Legal Awards Winners Announced! The inaugural Dorset Legal Awards, hosted at The Bournemouth International Centre, celebrated leading legal professionals, teams and firms across Dorset. The event, organised by specialist legal recruiters ASH Elite and IT consultancy QuoStar, saw more than 300 legal professionals gather to acknowledge the achievements of individuals and law firms across the region. Following a successful launch in May 2017, the Awards received over 200 nominations from across 25 Dorset law firms. An independent judging panel, comprised of legal and business heavyweights, whittled these nominations down to a shortlist of 42 finalists across 14 categories. All shortlisted finalists then met with the judges for face-to-face interviews, after which the winners were selected. Among the sponsors for this prestigious event were Investment management company Charles Stanley, UK Top 20 accountancy practice Saffery Champness and legal financial solutions provider The Iceberg Partnership. The Winners • Rising Star of the Year 2018 – Emma Tullis, (pictured right) Mustoe Shorter Solicitors & Advocates (right) “I am absolutely thrilled to have won Rising Star of the Year. The Awards ceremony was a great opportunity to celebrate the Dorset legal scene, and I am extremely grateful to Mustoe Shorter for its continued support. I hope the Award is the first of many things to come at this early stage in my career.” EXPERT WITNESS JOURNAL
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• Lawyer of the Year 2018 – Paul Kanolik, Ellis Jones (pictured right) “I am absolutely thrilled and honoured to have won Dorset Lawyer of the Year, and to be able to share this success with my colleagues at Ellis Jones, who have provided me with tremendous support over the years. There is a wealth of talented lawyers in Dorset and the competition was exceptionally strong. Hats off to the organisers at Ash Elite and QuoStar, and I look forward to another entertaining and enjoyable evening next year!” • Partner of the Year 2018 – Sam Freeman, Laceys Solicitors (pictured right) “It was a great honour to win Partner of the Year, however I couldn’t have done it without the support of the team I have around me. Leadership is not always easy, but I believe if you lead by example, retain your integrity and inspire and influence where possible, you allow the team to develop and maximise their potential.”
• Property Team of the Year 2018 – Laceys Solicitors (pictured right) “Winning the Property Team of the Year award for us was very special as it recognises the great work our team does, authenticating the service and commitment we endeavour to deliver to all our clients. We also believe in nurturing and developing our talent, and, as a result, we have a great staff retention rate which means our clients can build longstanding relationships not only with the firm but also with the individuals within it.” – John Munro, Head of Property Team • Family Team of the Year 2018 – Williams Thompson (pictured right) “We had an amazing time at the first ever Dorset Legal Awards. Winning the Family Law Team Award is a great commendation which reflects our well-regarded reputation as local family law experts. The team at Williams Thompson will continue to build upon our now award-winning family law service and ensure we continue to be one of the best family law departments in Dorset.” - Suzanne Kadziola, Practice Manager and Partner
• Personal Injury/Clinical Negligence Team of the Year 2018 – Dutton Gregory (pictured right) “We’re delighted that the expertise of our specialists, together with the level of care and personal service we afford to all our clients, has resulted in our Personal Injury / Clinical Negligence Department being recognised by the Dorset Legal Award judges and awarded the title of “Team of the Year.”
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• Private Client Team of the Year 2018 – Blanchards Bailey (pictured left) “Winning Private Client Team of the Year at the Dorset Legal Awards is testament to the dedicated team we have at Blanchards Bailey. This award recognises that we are providing specialist legal advice and service of the highest quality. With such fierce competition in this category, we are thrilled to have come out on top.” – Jerome Dodge, Head of Private Client – Wills and Estate Planning • Company Commercial Team of the Year 2018 – Laceys Solicitors (pictured left) “Winning the Corporate and Commercial Team of the Year is recognition of the hard work and commitment of everyone in the team. I believe one of the reasons we won is the way we like to work with our clients to ensure that they achieve their goals while protecting them against risks along the way. It is important to be a key part of our clients’ decision making process so that we can maximise the support and advice we provide. It is about making a difference to the client and delivering it in a way that works for them.” – Sam Freeman, Head of Corporate and Commercial Team • Dispute Resolution Team of the Year 2018 – Blanchards Bailey (pictured left) “As a team, we are proud to have won Dispute Resolution Team of the Year at the Dorset Legal Awards. Winning this highly contested award demonstrates the team’s dedication and motivation to exceed expectations, in addition to the specialist litigation knowledge we have and the advice we provide. Blanchards Bailey’s commitment to developing a highly skilled litigation department has enabled us to obtain this recognition.” – Paul Dunlop, Head of Litigation and Disputes • Law Firm of the Year (up to 10 Partners) 2018 – Farnfields (pictured left) “The Dorset Legal Awards provided an excellent opportunity to highlight the good work of law firms in Dorset and we are absolutely delighted to have won Law Firm of the Year (up to 10 Partners). We are immensely proud to be winners alongside such well recognised and highly regarded local firms. Our win is testament to the hard work of all of our staff to deliver a fantastic service to our clients.” – Fiona Thomas, Managing Partner • Contribution to the Community Award 2018 – Kitson & Trotman (pictured left) “Celebrating and supporting the community in which we live and work is very important to us. To be recognised for something which represents the values we believe in means a great deal to the firm.”
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• Engagement with Education Award 2018 – Coles Miller (pictured right) “We’re very proud to have won the Engagement with Education Award. Coles Miller sponsors Parkstone Grammar School as part of the Dorset Chamber of Commerce & Industry Young Chamber programme. It’s a wonderful way to support a local school with such enthusiasm for its students. We’ve also agreed to engage further as Enterprise Advisers as part of the Careers & Enterprise Company, a governmentbacked scheme to support schools further with careers advice for young students.” – Roger Leedham, Managing Partner • Law Firm of the Year (10+ Partners) 2018 – Ellis Jones (pictured right) “We‘re all so proud to have been crowned as the first ever Dorset law firm of the Year as it reflects our core values of working together and providing mutual support. It was great that so many of the firms were there on the night to celebrate the success as it was a real team effort. We’d also like to congratulate the sponsors for organising such a successful and well supported event.” – Nigel Smith, Managing Partner • Lifetime Achievement Award 2018 – Nigel Smith, Ellis Jones (pictured right) “I was surprised but delighted to be announced as the winner of the Lifetime Achievement Award. As I said on the evening, whilst it is an honour to have been recognised for the 32 years that I have been practising in the law locally, I have no plans to retire yet and hope that I have much more to offer and achieve going forward.”
Graham Gillam RIBA - Chartered Architect Dipl. Arch. Northern Polytechnic London. 1971. - ARIBA 1971. - Registered UK Architect 1971. Post Graduate Diploma Architectural Conservation Plymouth University 2000. Details of my qualifications and experience entitling me to give expert opinion. Training includes: Construction design and management, Architecture, Expert Witness reports and investigations, Arbitration at the Chartered Institute of Arbitrators London, Adjudication, Town and Country Planning procedure and Waterproofing of structures. Practice profile: Practice formed in 1974. Practice as an architect providing sound design and construction advice. Experienced expert in the investigation of alleged contractual and design failures, and construction faults. Specialise in investigating water ingress into structures. Experienced in providing reports giving evidence in County and High Courts as an expert. Conversant with UK current planning procedures. Conversant with current UK building legislation and regulations Skilled in the design detailing and contractual matters related to building design, construction, and project management. Contact details: 5 Newcombe Close, Okehampton, Devon. Telephone: 01837 53371 Email: grahamgillam@btinternet.com
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New Guidelines for Psychologists Working with Refugees and Asylum Seekers Article reproduced by permission of The British Psychological Society When asylum seekers arrive in the UK they may believe this signals an end to their difficulties, but the reality can be different. Professor Bill Yule from the Institute of Psychiatry, Psychology and Neuroscience at King’s College London, says: “Asylum seekers have shown great fortitude in fleeing to this country. They bring many skills and experiences with them. But they may not always be familiar with the way things are done in their new country. Many individuals and organisations have offered to help them settle, but while many local communities show support, some others may show a lack of interest or worse. Asylum seekers may experience a lot of stresses such as homelessness, social exclusion, stereotyping and overt discrimination. The psychological impact of this realisation can be significant.”
asylum seekers and supporting the institutions and communities of which they form part. The guidelines offer guidance on supporting different client groups such as adults, families and children, young people and unaccompanied minors. There is also guidance on working in the wider community and in settings such as the workplace and nurseries, schools and colleges. The practicalities of working with interpreters are discussed too. Other points for psychologists emphasised in the guidelines include: Asylum seekers may assume you are familiar with the politics and the human rights record of their country of origin. This may mean that they do not immediately disclose their experiences of human rights abuses, including torture, and you may need to ask about this.
This is one of the points emphasised in new guidelines for psychologists working with refugees and asylum seekers produced by the British Psychological Society.
Someone who has to seek asylum in another country is likely to encounter multiple losses – loss of home, culture, family, profession, language and friends, as well as their plans for the future. Getting to the 0country may involve trauma.
Produced by the Society’s Presidential Taskforce on Refugees and Asylum Seekers, of which Professor Yule was Chair, these guidelines say psychologists have an important role in supporting refugees and EXPERT WITNESS JOURNAL
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Families are often split up and the journey is frequently fraught with risk and numerous dangers including arrest, theft, kidnap and sexual violence.
Guidelines for psychologists working with refugees and asylum seekers in the UK These guidelines were developed by the British Psychological Society’s Presidential Taskforce on Refugees and Asylum Seekers.
Professor Jamie Hacker Hughes, a former President of the Society who set up the taskforce, says: “The number of refugees and asylum seekers in the United Kingdom, across Europe and across the world has increased dramatically since 2015. This developing worldwide crisis has resulted in headlines about thousands of people experiencing traumatic events, crisis and disaster with alarming frequency.
The number of refugees and asylum seekers in the United Kingdom (UK), across Europe and across the world has increased dramatically since 2015. As a discipline and a profession, psychology has a wealth of knowledge, experience and talent to apply in this area to help improve the lives of those who have fled their countries and are seeking safety.
“As a discipline and a profession, psychology has a wealth of knowledge, experience and talent to apply in this area to help improve the lives of those who have fled their countries and are seeking safety. Psychological evidence and practice can help to equip individuals, organisations and communities with the knowledge, skills and understanding that they need in order to help them navigate challenging experiences in a complex world.” 0
This guidance document is important, not only for frontline psychologists and others working in the field, but also for practitioners in related disciplines. It is an important resource for directors, managers and practitioners of organisations working with refugees and migrants and providing services to this population, at home and abroad. This guidance will help everyone who is working with these vulnerable populations to access evidence-based psychology, which can help them to improve the lives of individuals and communities that have been affected by the ongoing crisis.
The Society’s Presidential Taskforce on Refugees and Asylum Seekers is an expert group that includes academic and practitioner clinical, community, counselling, educational and occupational psychologists.
For more information please consult the document(s) available at: www.bps.org.uk/news-and-policy/guidelines-psychologists-working-refugees-and-asylum-seekers-uk
Professor Hacker Hughes says: “I formed the BPS Presidential Taskforce on Refugees and Asylum Seekers in order to pool the expertise of Society psychologists to provide the best possible advice to psychologists and others working in this field. I wanted this special group of people to receive the very best psychological services. I am delighted that this report is now publicly available.”
Many thanks to The British Psychological Society for permission to reprint this article.
Dr Elizabeth Soilleux Consultant Histopathologist MA, MB, BChir, PhD, FRCPath, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)
Practising consultant haematopathologist and autopsy pathologist in Cambridge. Cambridge University lecturer and fellow/director of studies in medicine, Churchill College, Cambridge.
Dr. Pavan Chahl
Expertise in: Haematopathology - histopathological assessment of
Consultant Psychiatrist
lymph nodes, bone marrow, thymus, spleen, lymphomas,
MBBS, MRCPsych, CCT (General adult psychiatry), Section 12(2) approved
leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including
I work as a Consultant Psychiatrist working in independent sector in Locked Rehabilitation. I have previously been on the Council of the Birmingham medico-legal society and the Birmingham medical institute.
infections, molecular tests in haematopathology. Autopsy (post mortem) pathology.
I have worked as a Consultant Psychiatrist since 2002 and have undertaken expert witness work since 2009. I have significant experience of dealing with cases that relate to Personal Injury, Family law, the Disability Discrimination Act and Clinical Negligence. I have written reports for the Defendant, Claimant and also joint instructions.
Contact: Tel: 07798 643879 Email: expwitpathol@gmail.com
Tel: 07985 883 549 Email: pchahl@yahoo.co.uk
Website: www.expertwitnesspathologist.co.uk 60 Cow Lane, Fulbourn, Cambridge, CB21 5HB
Wallflower Consulting 240 Alcester Road South, Kings Heath, Birmingham, B14 6DR
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What Does A Forensic Accountant Actually Do?
by Bee-Lean Chew
This article looks at the potential ways in which a forensic accountant can be involved in a litigation. In the course of my career as a forensic accountant, I have often fielded enquiries from private individuals along the lines of “my lawyer informs me I need the services of a forensic accountant. Can you help? No, I don’t know what I need you to do… I just know that I need one. What exactly is it that you do?” After some unravelling (forensic, naturally), we come to the crux of the matter which usually falls in one or more of the following categories where the individual is a party or counterparty in a law suit and needs some assistance in: (i) Understanding the financial figures and explanations presented by the other party
common thread running through all enquiries – the suggestion that the other party is “hiding” assets, or obfuscating their financial position (iv) Providing reassurance where another expert had already been appointed but, for whatever reason, they do not trust the opinion of the expert and want a second opinion (v) Challenging the responses from the other party or the other party’s expert (vi) Providing expert witness evidence in Court There is no set time in a litigation at which a forensic accountant should be appointed – sometimes, they may be appointed pre-litigation to quantify the loss suffered in order for the potential litigant to decide whether or not to proceed with incurring the cost of litigation – no small amount, despite the Courts’ best efforts to limit the same. However, the potential litigant should always consult with their legal adviser before deciding to go down this route as the Courts may restrict the level of professional fees recoverable by the winning party. At the pre-litigation stage, the forensic accountant usually takes on the role of Expert Adviser, and his or her duty will be to the client or instructing solicitor. However, the forensic
(ii) Quantifying the losses that either or both parties have claimed to suffer as a result of the action or inaction being litigated (iii) Investigating the veracity and completeness of responses provided, particularly from the one who appears to be in a more financially robust position – bearing in mind that, oftentimes, the parties to the suit are in a fractious situation, where the level of trust between parties is at an all-time low, this appears to be the most
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used for personal reasons. In itself, as long as such measures are properly accounted for in the business’ annual accounts and tax returns, this is not problematic. However, it sometimes happens that the business partners become complicit in gaining a tax advantage for their shared business which might not be strictly within the rules. When the business relationship breaks down, fingers start pointing, and accusations start flying as to who benefited unfairly from the business relationship. I have found that participants in this type of business relationship breakdown are rarely objective and discussions or negotiations can grind to a halt over each individual’s notion of fairness. Where the forensic accountant can be useful is in boiling down the arguments to black-and-white figures to illustrate whether there is any financial benefit to holding fast to an argument, or whether the financial benefit gained is outweighed by the cost of maintaining that argument, e.g. in legal costs. Knowing the potential quantum of certain decisions also helps the legal adviser to work out an effective strategy in the earlier stages of a law suit.
accountant needs to be aware at all times that, potentially, the pre-litigation work and/or advice they are giving will be converted into an expert witness report for presentation at Court – and at that stage their duty is to the Court. Therefore, during the period of their appointment as Expert Adviser, they should be careful to stay away from overly-partisan assumptions in preparing their calculations; there is always a fine balancing act here – while professionally-qualified accountants will be careful to adhere to their regulating body’s professional guidelines, there is a natural inclination for accountants in practice to safeguard their client’s interests which can result in overly-optimistic or overly-pessimistic quanta (whichever serves the client’s interests best). The forensic accountant as Expert Adviser can be a very useful tool in a legal professional’s arsenal – knowing the potential financial outcomes of different decisions allows legal advisers to consider their litigation strategy from a more informed position and to test out different scenarios with the corresponding financial outcomes prior to deciding which would serve their client’s purposes best. But, of course, there is a corresponding cost with involving a forensic accountant which encourages many lawyers to defer their involvement. While many legal professionals are perfectly comfortable with numbers, it is generally not their main expertise and, oftentimes, involving a forensic accountant in the early stages can help to focus matters as well as maximise efficient management of the case. I have, on one memorable occasion, been passed my instructions and the requisite backing records (including a 1Tb hard drive) with a heartfelt “it’ll be a cold day in hell before I ever touch another Excel spreadsheet again” from my instructing solicitor. In that particular situation, we had a silvertongued counterparty who produced beautifully plausible reasons for every financial wrongdoing he was accused of perpetrating – in order to establish the veracity of his explanations and quantify the results of his misfeasance, we had to piece together the actual sequence of events, cross-check them to the defendant’s explanations, and present a robust report detailing where discrepancies arose between the defendant’s explanations and what factually occurred, from the company’s physical records, computer system back-up and decommissioned accounting system.
In a litigious situation, there is sometimes a weaker party with a lower level of commercial experience or knowledge and without a network of business contacts to whom they can turn for financial advice. In such situations, the forensic accountant can assist in an advisory capacity – helping the client to understand financial submissions by the other side, as well as helping the client to understand the personal financial implications of any offers put forward by the other side. Sometimes, the forensic accountant’s role is merely to be an interpreter for the less-commercially astute client. This often happens in matrimonial cases, where marital arrangements follow a more traditional route with one primary caregiver who stays home, the other spouse being the primary breadwinner. Often, the spouses will each have a share in a family-owned business, irrespective of their contribution to the management or running of the business – this is a common tax planning method for owner-managed businesses, to minimise tax payable on drawings from the business. In such scenarios, it is common that the stay-at-home spouse lacks the skills or confidence to understand or challenge financial assertions put forward by the breadwinner spouse regarding the robustness of the family business. In such situations, the forensic accountant can be useful as an interpreter and to highlight problem areas for both the legal adviser and client to challenge.
A more straightforward use of the forensic accountant, pre-litigation, would be in assessing whether there is any practical purpose to standing one’s ground. A fairly typical example would be where one party is aware that their business partner has used business funds for personal benefit – this often happens in small, closely-held, family-owned businesses where, over the years, the business partners agree amongst themselves that funds can be extracted and EXPERT WITNESS JOURNAL
It can also be effective for the legal adviser to involve a forensic accountant at an early stage in the litigation process to help articulate the issues which need to be addressed in the manner which is best suited to the client’s case, as well as to aid in establishing the scope of work to be performed up front, thus providing some form of control over costs. Leaving the instructed expert to define their own scope can some95
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times be the equivalent of issuing a blank cheque - an end result to no one’s benefit, arising from the expert’s desire to provide as comprehensive a report as possible with too wide a scope for an effective and efficient job to be performed. Involving the expert early on to assist with drafting the scope of instructions will help ensure a cost-effective use of the expert’s time.
frequently made over the dining table. In such situations, the forensic accountant has to draw on their experience in order to assist the Court in establishing the facts of the case being considered. In the final stages, the forensic accountant as Expert Witness can assist their client by assessing the quantum of whatever settlement figure has been agreed on.
Where the Court has given permission for the parties to do so, the forensic accountant can be appointed as an Expert Witness – either party-appointed or single joint expert. At this point, the forensic accountant owes his or her duty of care to the Court. Of course, in an ideal world, this switch of focus should make no difference to the expert’s opinion or conclusions – the expert should come to the same conclusion irrespective of which side he or she is engaged by. This can hold true where the subject under litigation is backed up by hard facts and concrete, contemporaneous documentary evidence. However, it is often the case that a significant proportion of the evidence presented to the forensic accountant for review and analysis is subject to interpretation. Additionally, detailed backing records get lost over the course of time – if they ever existed in the first place! Small businesses tend towards a more laissez faire attitude towards documenting management decisions on a timely basis; this is particularly true for family-owned businesses, where management and operational decisions are
This is just a brief overview of the many uses of a forensic accountant. A more detailed description is included in the book Forensic Accounting and Finance: Principles and Practice, 2017, Bee-Lean Chew (ed.), London: Kogan Page. The book is available on amazon please see; www.amazon.co.uk/ForensicAccounting-Finance-PrinciplesPractice/dp/074947999X Bee-Lean Chew is Head of the Litigation Support team at Wilder Coe Ltd, a London-based firm of chartered accountants based in the City of London. She has been a qualified chartered accountant for over 20 years, specialising in owner-managed businesses. She is an accredited Forensic Accountant by the Institute of Chartered Accountants of England and Wales, as well as a member of The Academy of Experts.
Steve Turnham Chartered Surveyor Maritime Consultancy and Engineering
As an accredited Royal Institution of Chartered Surveyors (RICS) Expert Witness (EWAS) with more than 40 years property and construction consultancy experience, Stephen Turnham can offer expert witness advice and report comprehensively on:-
Extra First Class Certificate of Competency, CUBS Expert Witness, Maritime Competence Assessor Course for DP & Marine Engineering Operations
Over experts are experienced professional engineers and master mariners, who have provided expert witness services for marine and oil & gas clients world-wide for over 21 Years.
Surveyor's/Architect's negligence; building contract disputes and other quality and construction matters; building defects; fire, flood and subsidence damage; etc.
We offer specialist expertise in marine operations skills to shipping, maritime civil engineering and offshore oil & gas clients.
His experience is across a broad range of building types, i.e., residential, commercial, etc., including buildings of special architectural and historic interest. He acts often as Single Joint Expert and can provide counsel, solicitor and other references on request, including in relation to testifying in a wide range of venues, from arbitrations to County and Higher Courts.
Our Expertise Covers:Dock and harbour damage, Shipping incidents, Personal injury, Cargo claims, Hull and machinery, Vessel under-performance, Naval architecture, Bulk carriers, Oil & gas Tanker operations, Marine Operations, Shipyard practice, Grounding, sinking and salvage, Marine engineering, Offshore structures, Structure failure, Collision and repair, Pipeline incidents, Towage and Pilotage, and High-speed craft.
You will find him thorough, able to communicate effectively and fairly both in written and verbal form, wholly familiar with the Civil Procedure Rules (CPR) and easy to contact.
Initial consultancy work has included incident investigation, vessel inspections, and DP trials. He carried out Failure Mode Effect Analysis (FMEA) on a wide range of vessels, including drillships, cable layers, accommodation vessels and crane vessels and conducted proving trials.
Contact: Stephen Turnham Phone: 01392 499091 Email: info@assinderturnham.co.uk Website: www.assinderturnham.co.uk Address: 6/7 Southerhay West, Exeter, Devon, EX1 1JG
Address: Saddlers House, 44 Gutter Lane, London EC2V 6BR Area of work: Nationwide and Worldwide Tel: 0203 465 2500 - Fax:0203 465 2501 Email: jfd@globalmaritime.com - Website: www.globalmaritime.com
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r u o y g n i d n a t s r Unde g n i k a m s e g n e chall e l p m i s x e l p m o c the Smith & Williamson’s forensic services tteam include es experienced expert witnesses,, who have evidence before a variety of courrts and given e als. Their advice and experience will ensure tribuna our case, or that of your client, iss positioned that yo e best possible outcome. for the er 25 years, we have provided a ffull range of For ove nary team forensic services and our multi-disciplin on cases. advisess on a variety of dispute resolutio eas of expertise include: O are Our • quantum and valuation services in mmercial disputes; com • valu uation services in divorce procee edings; XG DQG ÀQDQFLDO FULPH LQYHVWLJDWLLRQV • IUDX • fore ensic technology and e-disclosure e; and • quantifying losses in personal injuryy and clinical negligence claims. 7R ÀQG RXW PRUH SOHDVH FRQWDFW )D\H + +DOO RQ 0117 37 76 2045, faye.hall@smithandwilliamson.com smithandwilliamson.com
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