Expert Witness Issue 13 by ExpertWitness

COVERS ISS 13:Layout 1 9/29/15 12:47 PM Page 1

THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS

EXPERTS & LAWYERS BEHAVING BADLY

THE ADVOCATE & THE EXPERT IN A TESTAMENTARY CAPACITY CLAIM

TREES - BALLISTICS - RICS Vol 1 Issue 13 - Autumn 2015 - UK £5.00 Euro 6.00

COVERS ISS 13:Layout 1 9/29/15 12:47 PM Page 2

Is your arbitration career legally binding? The Chartered Institute of Arbitrators (CIArb) is a leading professional membership organisation representing the interests of alternative dispute practitioners worldwide. CIArb supports the global promotion, facilitation and development of all forms of private dispute resolution and has provided lawyers and similar professionals with prestigious qualifications and training.

Why do lawyers join?

Membership benefits

• To raise their profile and boost their career

• Branches across 127 countries worldwide

• To validate their professional standing

• 13,500 members

• To be informed of best practice, innovation and learnings

• Access to the Maughan Library

• To join a community with sound international reputation, reach and influence • Subscription fees priced from just £246

Join Today

• Discounts on high street shopping, health clubs, holidays, hotels and insurance • News and info including The Resolver Magazine, CIArb’s quarterly journal

T +44 (0)207 421 7447 E memberservices@ciarb.org W ciarb.org/membership Registered charity number: 803725

editorial 13:Layout 1 9/30/15 3:26 PM Page 1

Welcome to the Expert Witness Journal Hello and welcome to the 13th issue of the Expert Witness Journal. A particular warm welcome if you are picking up this copy at The Bond Solon Expert Witness Conference, we hope that you enjoy this Journal and the conference, please pop by our stand and say hello. The main articles in this issue concern the role of the expert in general with. ‘The Expert in a Testamentary Capacity’ ‘Writing reports for the Court article’ and ‘The Expert Witness in Adjudication’ and ‘Experts and Lawyers behaving badly” a must read for all experts. We are sure that these articles will provoke much debate, please let us know your thoughts and feelings on these and any subject covered in the Journal. We will follow this in our next issue with ‘What the expert wants from the Solicitor’. Another area of interest to many expert is MedCo, we feature two articles on MedCo in this issue, one a review and undertanding of Medco’s workings (page 44), whilst Dr Zafar (page 31) offers his opinions on the changes. Speaking to experts it appears that many experts are being pressured by Solicitors (who in turn are being pressured themselves) regarding costs. (This is a matter which we will also cover in the next issue.) One such example was brought to our attention where an expert was asked to produce a full report on a medical negligence case, if the expert thought that a breach off duty had occured. If the expert thought that a breach had not occured, then a fee for 1 hours reading of the notes would be paid. In our opinion this is more than subtle pressure being applied towards influencing an expert and their opinion. We would like to hear from experts regarding such instances. Chris Connelly

Acting Editor Email:chris.connelly@expertwitness.co.uk This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2015. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2015. The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk - www.expertwitnessjournal.co.uk

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 2

News & Events CIArb comments on EU proposals for a new Investment Court System for TTIP The EU Trade Commissioner has today announced the long-awaited draft negotiation text for the investment protection regime in the Transatlantic Trade and Investment Partnership (TTIP). In a significant move they have pressed ahead with proposals for a new Investment Court System which sets out to replace arbitrators with publicly appointed judges and introduce an appeals mechanism for disputes. This follows the highly politicised debate surrounding the inclusion of investor-to-state dispute settlement (ISDS) in TTIP.

policymakers. Now is not the time to rush through proposals that will have significant impact on the international investment protection regime in the years ahead.” “Europe is a global centre for private dispute resolution, it is disappointing that the EU has cast aspersions on so called ‘private justice.’ It is critical that ISDS does not become lumped together in the public consciousness with other forms of ADR, it is a special form very distinct from the likes of international commercial arbitration.” ■

CIArb Director General Anthony Abrahams said: “We have serious concerns about EU proposals announced today. Whilst increased transparency is to be welcomed, the autonomy of any new Court and who exactly will be footing the bill remain unclear.”

Subscribe call 0161 834 0017 or Email: admin@expertwitness.co.uk

“The unprecedented debate about the inclusion of ISDS in TTIP has brought huge pressures on EU

Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA

Professor Charles Claoué

Chronic Pain Expert

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

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.

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

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.

2) Excimer Laser and other Refractive Surgery Techniques for Myopia, Hyperopia, Astigmatism and Presbyopia; PRELEX and LASIK. 3) Corneal Disease and Surgery including Corneal Transplants/ Grafts, Anterior Segment Reconstruction.

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.

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

Contact:

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

Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Suite 6, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 3

Contents Some of the highlights of this issue News and Events

Pages 2 to 10

Forced Marriage and Honour Abuse by Jasvinder Sanghera, CBE and Natasha Rattu, Barrister

Page 11

Experts & Lawyers Behaving Badly:

Page 14

What Sanctions or Measures are Open to Tribunals? Importance of Frank Disclosure of Factors that could Affect Expert’s Independence by Rachel Lidgate, Senior Associate, and Ramyaa Veerabathran Graduate Solicitor (India)

Page 14

Writing Reports For Court - Some Guidance For the Aspiring Expert Witness by Andrei Szerard

Page 24

The Expert Witness in Adjudication by Murray Armes FCIArb

Page 28

Dr Asef Zafar - A GP Medico-legal Profile & Opinions on the MedCo Changes

Page 33

Medico Legal Issues in Oncology by Professor Christopher Nutting

Page 36

Two Oncology Case Reports by Dr John P Glees MD FRCR DMRT

Page 39

The Devil Can Be In The Detail – Litigation in Obstetrics and Gynaecology by Mr Matthew Long

Page 43

Reviewing MedCo by John van der Luit-Drummond

Page 46

Areas in Orthopaedic Surgery Where Negligence has Occurred is Uncertain by Mr. Ian Forster - Consultant Orthopaedic Surgeon

Page 50

Why am I Stressed Since That Accident? Cognitive Model of Trauma Including Perceived Injustice by Dr Hugh Koch and Associates

Page 58

Understanding the Nature of Personality Disorders? by Dr Dennis Trent, Chartered Clinical Psychologist Midlands Psychological Services

Page 61

The Advocate and the Expert in a Testamentary Capacity Claim, by Carl Islam

Page 64

Resolving Dilapidations Dispute by Christopher Sullivan, Partner, Malcolm Hollis Martin Burns RICS

Page 76

Negligence Claims with Japanese Knotweed by Mark O'Hara, Bsc MRICS

Page 79

Conflict of Interest - Or Just a Different Perspective by Marisa Shek, BA (Hons), Dip Arch, RIBA, Cowan Architects

Page 81

Trees: When Quality is more important than Quantity by Mark Chester - Cedarwood Tree Care

Page 84

Ballistic Fingerprinting - Science or Art? by Mark Mastaglio, The Forensic Firearms Consultancy Ltd

Page 88

The Tribunal’s Independent Expert - by Richard Ward

Page 92

All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2015. The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk - www.expertwitnessjournal.co.uk

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 4

News & Events ICE helps Industry Enter the Next Phase of CDM 2015 Effectively ICE is calling on industry to ensure that it is equipped to implement the updated Construction (Design and Management) (CDM) regulations, as they move into a new phase, with full implementation required on all construction projects from 6 October.

and use. The new regulations have removed the CDM co-ordinator, and require the ‘principal designer’ to manage health and safety risks created before construction, to appropriately minimise their impact throughout the life of a project.

While the transition arrangements are coming to an end – requiring full compliance for all projects – there are still parts of the industry that are not fully prepared.

Those attending an ICE CDM 2015 training programme will be well equipped to apply for membership of the ICE Health and Safety Register – a publicised recognition of attainment of a defined standard in the application of the principles of health and safety in construction. They will also make a valid contribution to their continuing professional development.

ICE has produced a comprehensive programme of training and guidance materials on a range of aspects regarding CDM 2015, to help construction and design professionals to deliver projects effectively and compliantly.

On the day when full implementation comes into effect (6 October), ICE is also running a dedicated CDM webinar, which will draw on feedback collated from the ICE Training courses from the last six months. Russell Adfield, Head of HSE’s CDM Unit, and construction expert Tony Putsman will be taking questions from a live audience.

Industry experts around the country are delivering the CDM 2015 training programmes, developed by ICE Training and peer-reviewed by the ICE Health & Safety Expert Panel. Over 650 construction professionals have completed the training courses on the new regulations since they came into force in April this year.

ICE Health & Safety Panel Chair Margaret Sackey said: “Building on the success of the last webinar held on 21 April 2015, where over 800 people tuned in, the ICE Health & Safety Expert Panel is pleased once again to host a free CDM Webinar, ‘6 Months On’. Joined by members of the Panel, the webinar will be looking back at the last six months and sharing experiences from fellow construction health and safety practitioners.”

The updated 2015 regulations, governing the design and construction processes of building and infrastructure projects, are broader in scope than previous iterations. They spread, re-assign and expand responsibilities across the roles involved in a project, including clients, designers, principal contractors, contractors and workers, and introduce the Principal Designer at the heart of pre-construction activity. This is changing the dynamic of risk management on projects.

The CDM 2015 Regulations were first published on 6 April 2015, however the Health and Safety Executive’s provided a six-month grace period to allow construction professionals time to adapt to the new rules and finish existing construction projects. ■

Design and planning decisions made during the pre-construction phase affect the health and safety of onsite workers, maintenance works and in operation

Forensic Structural Engineer - Chartered Building Surveyor

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

Timber Defects Failure Of Duty Of Care. Building Surveyors Survey Reports Contract Administration Design Failures Schedule of Dilapidations

The above are just a few of the related topics that encompass my expert reports.

EXPERT WITNESS JOURNAL

Contact Details Landline: 01494 727 217 Mobile: 07961 398 049 Web: www.abillingham.co.uk E-mail: andrew@abillingham.co.uk 5 Cheyne Close, Amersham, Buckinghamshire HP6 5LT

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 5

News & Events Experts Concerned over Proposed Legal High Legislation The governmentâ&#x20AC;&#x2122;s top drugs advisors have called on Home Secretary Theresa May to revisit proposals to introduce a blanket ban on so called â&#x20AC;&#x2DC;legal highs.â&#x20AC;&#x2122; The Psychoactive Substances Bill, which is due its second reading in the House of Commons in November, will introduce a blanket ban on the production, distribution, sale and supply of designer drugs following a number of deaths associated with their use. The maximum sentence under the Bill will be seven years in prison.

drugs immediately after the previous forms have been banned. Usually by making slight amendments to the chemical structures involved. The Advisory Council on the Misuse of Drugs (ACMD) initially raised a number of issues in a letter to the government in July. Concerns surrounded the potential for what they described as â&#x20AC;&#x2DC;serious unintended consequencesâ&#x20AC;&#x2122; requiring the production of an extensive list of exemptions to prevent common harmless substances being included, and the difficulty in proving the psychoactivity of substances in a court of law.

The new legislation has been proposed because the current system (which has banned over 500 substances) relies on each substance being judged independently.

Professor Les Iversen, chair of the ACMD, is still hopeful changes can be made. â&#x20AC;&#x153;I donâ&#x20AC;&#x2122;t think any of the main issues have yet been resolved,â&#x20AC;? he said. â&#x20AC;&#x153;I am having a meeting with the Home Secretary next week at which I would hope I can discuss all these matters.â&#x20AC;? â&#x2013;

The complicated nature of the existing regime means that manufacturers often produce new versions of

% # % !

If yyou ou n need eed a rreport eport o on nas specialist pecialist s subject ubject tthen hen m make ake s sure ure y you ou iinstruct nstruct a Specialist Specialist

& 38+63'8/43'1 /7 +<5+6/+3)+* /3 '11 '75+)87 4, +<5+68 ;/83+77 ;460 /3)19*/3- -/:/3- +:/*+3)+ '8 .+'6/3-7 ;461*;/*+

Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW Consultant C onsultant Orthotist Orthotist and and Orthotic Orthotic Expert Expert Witness Witness

&/8./3 8.+ ,496 0+= /3*9786= 7+)8467 4, !/1 '7 .+2/)'17 44* 6= 4224*/8/+7 +8'17 /3+6'17 '3* '6/3+ "4687 ;+ .':+ ' 564:+3 86')0 6+)46* 4, /*+38/,=/3- 8.+ )'97+7 4, /3)/*+387 (48. 43(4'6* 7./57 '3* 43 7.46+ 3 '**/8/43 ;+ 4,,+6 ,/6+ /3:+78/-'8/43 +<5+68/7+

Chris C hris h has as 30 30 years years of of experience experience in in the the field field of of orthotics orthotics and and over over 18 18 yyears ears of of medical medical legal legal reporting reporting experience. experience. As As well well as as his his in-depth in-depth principles and practice he kknowledge nowledge of of orthotic orthotic p rinciples a nd p ractice h e has has specific specific expertise expertise iin: n: Â&#x192; Post Post trauma trauma orthotic orthotic rehabilitation rehabilitation Neuro-rehabilitation Â&#x192; N euro-rehabilitation Complex Â&#x192; C omplex disabilities disabilities Â&#x192; Orthopaedic Orthopaedic conditions conditions and Â&#x192; Adult Adult a nd paediatric paediatric orthotics orthotics Â&#x192; L ower limb limb b iomechanics Lower biomechanics Â&#x192; L ower limb limb o rthotics Lower orthotics Â&#x192; C omplex ffoot oot a nd a nkle conditions conditions Complex and ankle Â&#x192; F oot orthotics orthotics Foot Â&#x192; S pecialised o rthopaedic and and bespoke bespoke footwear footwear Specialised orthopaedic

!96 6+54687 '6+ 56+5'6+* ,46 1/8/-'8/43 '3* '6(/86'8/43 478 4, 496 7+3/46 )437918'387 .':+ -/:+3 +<5+68 ;/83+77 +:/*+3)+ /3 8.+ /-. 4968 '3* '8 '6(/86'8/43 ;461*;/*+ &+ '174 '77/78 /3 2+*/'8/437 !96 ;460 /3 8./7 '6+' /7 7955468+* (= +<8+37/:+ /3 .497+ 6+7496)+7 /3)19*/3- ' *'8'('7+ 4, 8.497'3*7 4, )'7+ 789*/+7

He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the cclaimant, laimant, defendant expert. He has Expert Witness d efendant and and as as a single single joint joint e xpert. H eh as undergone undergone full full E xpert Wi tness with Bond Solon and holds Expert Witness ttraining raining w ith B ond S olon a nd h olds tthe: he: Certificate Certificate of of E xpert W itness Accreditation Law A ccreditation (CUEW) (CUEW) iissued ssued by by Bond Bond Solon Solon and and Cardiff Cardiff University U n iv e r s ity L aw School. Registered S chool. R egistered with with the the Health Health & Care Care Professions Professions Council Council (HCPC). (HCPC).

$/3)+ & .'7 /3:+78/-'8+* 4:+6

/3)/*+387 ;/8. )1'/27 6'3-/3- /3 :'19+ 95 84 (/11/43 &+ .':+ '174 56+5'6+* +<5+68 ;/83+77 ;460 ,46 7+:+6'1 .93*6+* )'7+7

Consulting C onsulting a at: t: 1 152 52 Harley Harley Street, Street, a able ble to to travel travel throughout throughout the the UK UK ffor or cclient lient vvisits isits w hen rrequired. equired. when Orthotic Experts Ltd O rthotic E xperts L td 52 5 2 Beresford Beresford Avenue, Avenue, Surbiton Surbiton Surrey, 9LJ S urrey, KT5 KT5 9 LJ Tel: +44 7721-514568, T el: +4 4 ((0) 0) 7 7 2 1 -5 1 4 5 6 8 , Fax: +44 20 7192 3339 F ax: +4 4 ((0) 0) 2 07 192 3 339 E-mail: E-mail: iinfo@OrthoticExperts.co.uk nfo@OrthoticExperts.co.uk

#+75437+ 43

2'/1 );' );' /38+63'8/43'1 &+(7/8+ ;;; );' /38+63'8/43'1 & 38+63'8/43'1 8* '1246'1 497+ 4.3 $86++8 43*43 & $

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 6

News & Events Assistant Solicitor Fabricated Counsel’s Advice and Expert Reports An assistant solicitor has admitted to having “fabricated” two expert reports, advice from counsel and a series of letters on a medical negligence case because she felt “completely panicked and couldn’t see a way out”.

personal injury client more than the amount agreed at settlement. The assistant solicitor later explained to the SRA that when she informed the client of the defendant’s offer of £3,000, he “had been persistent and wanted an offer of about £4,000”.

The Solicitors Disciplinary Tribunal (SDT) described the behaviour of Claire Tunstall as “quite extraordinary”, but said she had been “placed in an unenviable and wholly unacceptable position” by Cumbria firm Scott Duff & Co through a lack of support and supervision.

Rejecting the allegation of dishonesty, the SDT concluded: “The tribunal accepted the respondent’s evidence in its entirety and found, in this particular case, that the applicant had not substantiated beyond reasonable doubt that the respondent knew at the time that her conduct would be regarded as dishonest by the ordinary standards of reasonable and honest people. The tribunal was satisfied that the respondent had not been thinking rationally at the time and had not given any thought at all to the question of dishonesty. She had simply been trying to keep her head above water in extremely difficult circumstances.”

The tribunal was persuaded by the evidence of Ms Tunstall, based at the firm’s Keswick office in the Lake District and two years’ qualified at the time the conduct started, that “she had been struggling to cope to the extent that she contemplated having an accident so that she wouldn’t have to go to work anymore”. Ms Tunstall admitted to making false entries on the firm’s time-recording system,to try and give herself more time to catch up. Also paying a

Ms Tunstall now has a job outside the law and told the SDT she would never return to the profession. ■

CONSULTANT PLASTIC RECONSTRUCTIVE & HAND SURGEON MBA, MBBS, FRCS, DIP EUR B(PLAST), FRCS(PLAST) Mr Atul Khanna is a consultant plastic surgeon and has been involved in medical legal work since 1997. In this period he has provided over 2,300 medical reports. These have been predominantly in the following areas of expertise: • Hand surgery: Sequelae of hand injuries and surgery • Soft tissue injury: Sequelae of post traumatic scarring • Burns management: Sequelae of disability following burns injury, scarring and surgery. • Medical negligence in Cosmetic Surgery His work involves the treatment of patients with hand injuries, burns, soft tissue and facial injuries, breast surgery, scars and deformities, skin cancer and cosmetic surgery. He is on the GMC’s specialist register in Plastic Surgery and is a member of the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), and member of the society of expert witnesses.

Tel: Email: Web:

0121 507 3455 atulkhanna@doctors.org.uk www.atulkhanna.co.uk/expert_witness.html

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 7

News & Events Forensic Review of Sexual Assault Cases Ordered After Poor Practice Concerns The forensic science regulator is reviewing a series of sexual assault cases to examine whether poor evidence gathering at crime scenes may be compromising criminal justice in the UK, she has told the Guardian.

full-time for 18 months in order to secure the fibre evidence,â&#x20AC;? said Coyle. â&#x20AC;&#x153;Even if you were to pool all the fibres expertise in England and Wales, you wouldnâ&#x20AC;&#x2122;t have enough skilled people to work on that case now.

Dr Gill Tully, whose remit is to establish quality standards in forensic science and ensure compliance with them, said her review was prompted by a number of cases where â&#x20AC;&#x153;the scientific opportunities donâ&#x20AC;&#x2122;t appear to have been maximisedâ&#x20AC;?. These included examples where scientific analysis was not carried out at all.

The serial killer, convicted of killing five victims, was linked by DNA to only three, Paula Clennell, 24, Annette Nicholls, 29, and Anneli Alderton, 24. But fibre evidence linked Wright to Tania Nicol, 19, and Gemma Adams, 25 and he was convicted of killing all five. Prof Peter Gill, an award-winning forensic expert and one of the pioneers of DNA analysis, echoed Coyleâ&#x20AC;&#x2122;s concerns about miscarriages of justice in Britain.

The forensic review will look at decision-making at every stage of the investigation in a number of cases, from the crime scene through to any subsequent prosecution. The review will focus on sexual assault cases because they are complex and often not well resourced. The review is expected to take nine months.

â&#x20AC;&#x153;With the Birmingham Six and Judith Ward [the M62 bomber whose conviction was quashed], there was very poor reporting by forensic science,â&#x20AC;? Gill also said that the â&#x20AC;&#x153;purely market-drivenâ&#x20AC;? UK model was not used anywhere else in the world. â&#x20AC;&#x153;Most other jurisdictions fund forensic science services to allow tests that arenâ&#x20AC;&#x2122;t used very often to keep them up and runningâ&#x20AC;?. â&#x2013;

The review comes as forensic scientists warn that Britainâ&#x20AC;&#x2122;s over-reliance on cheap DNA techniques and the countryâ&#x20AC;&#x2122;s loss of expertise following privatisation of the Forensic Science Service (FSS) in 2012 may have already led to miscarriages of justice. Spending on forensic examinations has shrunk by ÂŁ20m over the past two years, according to a National Audit Office (NAO) study. In January, the NAO expressed concern that criminal trials could collapse because of skill and availability problems in the forensic market.

!62/)1 #),-'/) :%0-1%6-21 %1( ()16-*-'%6-21

#),-'/) %1( 20321)16 :%0-1%6-21 N 2'75 )32465 !'%/) /%15 %1( ,262+4%3,5 N !6%6)0)16 "%.-1+ N ";4) ")',12/2+; $) %4) %**-/-%6)( 62 )9 %9 552'-%6)5 6( ";4) 53)'-%/-565 N

One forensic fibre expert told the Guardian that the killers of Stephen Lawrence, Sarah Payne and victims of the Suffolk strangler Steve Wright, all cases where fibre evidence helped secure conviction, might have escaped justice today because of pressure on forensic science providers to get quick results using cheaper DNA profiling. There are currently less than six full-time fibre experts in the UK, compared with 44 in 2008, according to Tiernan Coyle, chief scientist at Contact Traces. â&#x20AC;&#x153;During the Wright case, the Forensic Science Service had five experts working EXPERT WITNESS JOURNAL

''-()16 18)56-+%6-21 %1( )'215647'6-21 &26, 4-0-1%/ -8-/ 2%( "4%**-' **)1')5 *420 !3))(-1+ 62 %75-1+ )%6, &; %1+)4275 4-8-1+ %1( )%6, &; %4)/)55 4-8-1+ "%',2+4%3, 1%/;5-5

Asked about concerns that spending cuts imposed on police evidence gathering in the wake of the closure of FSS was compromising investigation, she said her analysis would include looking at whether â&#x20AC;&#x153;any fragmentation of decision making and analysis is affecting the overall quality and effectiveness of forensic science in the end to end [crime scene to court] processâ&#x20AC;?.

")/ %:

$)& 999 (%1(,& '20 0%-/ 0%-/ (%1(,& '20

%8)1(-5, 2%( ")%1 !62.) 21 "4)16 !" )9 **-')5 23)1 -1 246,)41 1+/%1( -1 6,) %4/-5/) %4)% 3/)%5) '216%'6 *24 024) ()6%-/5

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 8

News & Events Excellence in Report writing Starting 12th Oct 2015 09:30 in London Starting 11th Nov 2015 09:30 in London Starting 02nd Dec 2015 09:30 in Manchester Starting 07th Dec 2015 09:30 in London

Talking Life Stress & Resilience Courses: Autumn 2015 Stressed out? This is a rare opportunity to attend one of the most popular & unique stress & resilience courses anywhere in the U.K. Entertaining, funny, illustrated by hilarious cartoons but with a hard hitting message - this course has been delivered to tens of thousands of people nationwide, in organisations and companies of all kinds. Now available outside the workplace and open to anyone. Book now to avoid disappointment.

Re:Cognition Health Educational Meetings 15th October 2015 The Pullman Hotel, St Pancras, London Re:Cognition Health will be hosting The Big Picture in 2015. This one day conference at The Pullman Hotel, St Pancras will debate how advances in neuroimaging, neuropsychology and other new diagnostic biomarkers influence the evaluation of brain injury in clinical medicine, rehabilitation and in court. Speakers include: consultant neuro radiologist Dr Emer MacSweeney, Professor of Neurology Richard Wise, consultant neuropsychiatrist Dr Mike Dilley, consultant neuro radiologist Dr Paul Butler and consultant neuropsychologist Dr Priyanka Pradhan.

Stressed out! in the Workplace: Glasgow, 27th October, 2015 Liverpool, 23rd September 2015 £99 per person (Glasgow & Liverpool) London 12th October 2015 £119 per person (London) Please note, all prices include vat 1 Euston Square, 40 Melton Street, London, NW1 2FW. Contact: Tel: 0151 632 0662 Web: www.talkinglife.co.uk

For further information, please contact Mr Ajay Sachdeva on 0203 355 3536 or email medicolegal@recognitionhealth.co.uk

Bond Solon Courtroom Skills (1 day) Starting 13th Oct 2015 09:30 in London Starting 12th Nov 2015 09:30 in London Starting 03rd Dec 2015 09:30 in Manchester Starting 08th Dec 2015 09:30 in London

RICS Quantity surveying & construction RICS Legal Issues in Construction Conference 2015› Conference London , 13 Oct 2015

Cross-Examination Day (1 day) Starting 14th Oct 2015 09:30 in London Starting 13th Nov 2015 09:30 in London Starting 04th Dec 2015 09:30 in Manchester Starting 09th Dec 2015 09:30 in London

Dispute Resolution Conference London, 28 Jan 2016 To find out more or to book, contact RICS Training: Web: www.rics.org/uk/training-events Tel: 0207 695 1600

Civil Procedure Rules for Expert Witnesses Starting 15th Oct 2015 09:30 in London

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

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 9

News & Events T: 020 7421 7439 F: 020 7404 4023 E: education@ciarb.org W: www.ciarb.org

Chartered Institute of Arbitrators Annual Conference of the International Bar Association 4th - 9th October 2015, Vienna, Austria

The Academy of Experts All courses based in London TAE offers a comprehensive range of training programmes for Expert Witnesses and Mediators. Courses range from basic Role and Responsibilities through to the requirements of Procedure Rules and the practice of Giving Evidence. 1st Oct Law 17th - 18th Nov Foundation Course 25th Nov Into Court 26th Nov Procedure Rules

International Construction Contracts Dispute Review Boards, Dispute Avoidance and Recent Cases 20 Cursitor St, London EC4A 1LT Thursday 15th October 2015 commences at 6.00 pm. CIArb's New Guidelines: Safe Ports for Arbitral Storms A CIArb-Maitland Chambers Panel Debate Thursday 22nd October 2015 7 Stone Buildings, Lincoln's Inn London, WC2A 3SZ

The Academy of Experts 3 Gray's Inn Square, London WC1R 5AH www.academyofexperts.org

The Expert Witness Institute

The Chartered Institute of Arbitrators (CIArb) is a leading professional membership organisation representing the interests of alternative dispute practitioners worldwide. Our Pathways programme - ranges from Introductory to Advanced Certificates and Diplomas which will give you the specialist knowledge and skills you need to get ahead in ADR, whilst also qualifying you for membership of CIArb. For more information on our courses, please contact CIArb Member Services. The Chartered Institute of Arbitrators, 12 Bloomsbury Square, London, WC1A 2LP

Annual Conference at Church House, London on Sepember 24th The 2014 conference was bigger and better than ever. We look forward to welcoming everyone back for the 2015 conference and also welcome new friends to the EWI community. Email: events@ewi.org.uk

The Solicitors Group Law London, Olympia London 27th Oct 2015 to 28th Oct 2015 LAW2015 conferences. Call 01332 226601 to book your place today. The event takes place on 27th & 28th October at the Olympia Conference Centre.

Talking Life is the No.1 choice for high quality training in the Public, Private and Voluntary sectors. Established for more than 15 years, we offer a portfolio of over 1000 in-house courses and a small number of specialised open-access courses which we can deliver from as little as £250 (+ vat) for a half day training course.

Talking Life has developed a high quality range of legal courses in recent years which has attracted outstanding feedback across our client database. Our Achieving Best Evidence (ABE) course uses highly innovative techniques, including the use of actors and our Court Skills training is second to none (though we say it ourselves!). Our Court skills and Expert Witness training team is led by a senior practising Barrister and our ABE course is led by a former senior specialist police officer.

At Talking Life we pride ourselves in exceeding our clients’ expectations. Through our training courses we believe that we can make a positive difference in today’s workplace.

Download the current Legal brochure from our website at www.talkinglife.co.uk or call on 0151 632 1206

Telephone: 0151 632 1206 Fax: 0151 632 1206 Email: info@talkinglife.co.uk or enquiries@talkinglife.co.uk Website: www.talkinglife.co.uk Talking Life Ltd 36 Birkenhead Road, Hoylake, Wirral, CH47 3BW

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 10

News & Events

A New Aid for Forensic Investigators mainly in contact with the hands and the front comes into contact with the face and mouth. These observations are supported by studies that demonstrated how different microbial communities are from different body parts and that the personal microbial signature are unique.

A new study has shown that germs on phones, shoes and other personal belongings can help locate a person’s whereabouts. Making a crime scene an even richer source of evidence for forensic teams than previously thought. As scientists know bacteria are everywhere. Microorganisms like bacteria are small, diverse and often specific to certain environments. A pilot study has shown that the germs on personal belongings such as shoes and mobile phones are actually a useful way of tracing a person’s whereabouts, something that may prove useful in forensic investigations. Bacteria may also determine the possibility to trace people’s origin using the microbial community of their shoes.

Over past few years much work has been done in order to use the changes in the biome associated with decomposing bodies, called “necrobiome”, to estimate the time since death. The idea behind this approach follows what is already known and applied in another forensic discipline: forensic entomology. Although microbiome on the soles of our shoes typically changes throughout the day, which could make it hard to pinpoint the places visited if we have walked around a lot. In the same way, the microbiome of a certain floor is also altered if a lot of people walk on it.

Excellent forensic tools Microorganisms are also often specific to certain environments, organisms or individuals. Similar to DNA and fingerprints, a suspect can unknowingly leave microbes behind on a crime scene or victim, providing useful information about the identity or origin of the suspect for forensic scientists. Mobile phones could also be of used in this way. Studies have demonstrated that the pattern of microbes found on a telephone is unique. There are also differences between the front and the back since the back is

The study carried out in the US looked at shoes from 89 participants randomly selected from attendees at three different scientific conferences. More work is needed to determine the practical use of it in the future. A first step would be expand and introduce more people to the experiment. ■

Dr Rajesh Rajendran Consultant Medical Microbiologist & Infection Control Doctor MBBS, FRCPath, Diploma in Infection Control (UCL) Dr Rajesh Rajendran is a Consultant Microbiologist & Infection Control Doctor based in Cheshire. He has a vast experience in management of infections and in infection prevention and control. He is actively involved in the day-to-day management Health Care associated infections like Cdifficle and MRSA. He also has expertise in management of communicable diseases like TB and other tropical infections. His expert in diagnosis of infection, and is a specialist in Infection control within acute Hospital Trust in the NHS and in the community which includes contact tracing for communicable diseases and expert advice on community infection control. Tel: 01625 661 832 Email: rajeshrajendran@nhs.net Maclesfield District General Hospital Pathology Department, Cooper Building, Victoria Road, Macclesfield SK10 3BL Area of work Nationwide

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 11

Forced Marriage and Honour Abuse by Jasvinder Sanghera, CBE and Natasha Rattu, Barrister applications as FMPO's are sometimes made during the course of applications for other family orders, and there is no differentiation between interim orders and final orders. There were 63 applications for an FMPO made between 1st July to 30th September 2014 according to parliament.

Forced marriage and honour abuse are not a new phenomenon, yet many are still just beginning to hear about these abuses and get their heads around the staggering statistics impacting victims in the UK. The governments Forced Marriage Unit (FMU) was established in 2005 after the report 'A choice by Right' highlighting how British born subjects were subjected to forced marriages, suffered in isolation, how families would go to great lengths to track those who ran away including the use of bounty hunters. In 2012, the FMU gave advice or support related to possible forced marriages in 1,485 cases whereby the youngest victim was just two years old, and the oldest was 71.

After years of campaigning, Prime Minister David Cameron criminalised forced marriage with a specific criminal offence in 2014 highlighting how these abuses are a modern form of slavery. I was born in Britain, attended a British school alongside my siblings and one of seven sisters. Over 30 years ago I watched the majority of my sisters being taken out of British schools to marry men they had only met in photographs. One by one they would disappear with long absences that were never questioned only to return as someone's wife. I was 14 years old when my mother sat me down and presented me with the photograph of a man I was to learn that I was promised into marriage at the age of 8. My protest fell on deaf ears and the family colluded against me removing me from education until I agreed to the marriage.

The need for legislation was highlighted as a priority as it became evident that existing offences did not go far enough. This led to the the Forced Marriage Civil Protection Act 2007 with statutory guidance. Since the act came into force on 25th November 2008 and up to the end of September 2014, 762 applications for a Forced Marriage Protection Order (FMPO) have been made, and 785 FMPO's have been issued. The number of orders made generally exceeds the number of EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 12

Over the weeks the pressures mounted in various form but the greatest weight was emotional blackmail 'if you don't marry, dad will have a heart attack and it will be your fault' beyond this was the constant reminder that this was an arranged marriage part of my tradition, culture, religion and saying no was a cause of dishonour. After weeks of being worn down I agreed only to plan my escape and I ran away from home aged 16.

Honour based systems are not linked to any one religion, culture or society. It has been identified as more prevalent within South Asian communities in Britain. However it can occur in other communities, including African, Middle Eastern, Turkish, Kurdish, Afghan and includes White, English women who marry into families that operate honour systems. Advocates must consider these experiences when dealing with cases of forced marriages which is clearly defined by The FMU. Furthermore there will be greater motivations for a marriage to take place where a promise of marriage has been agreed. These cases often present greater risk and victims often know who they are promised too, especially if first cousin marriages are practiced within the family, or a victim may have been promised into marriage from birth. It is extremely important to consider the family tree and the practice of marriages within the family as this will provide information related to expectations, belief and value systems.

It is important to note that victims will always have multiple perpetrators and often they will be made to feel that they have been disloyal to their family which victims often internalise as guilt and shame, not able to own the abuse perpetuated by the very people who are meant to love them the most. It remains the case that British born South Asian women have a suicide and self harm rate that is 3-4 times higher than the national average and these abuses are a factor. Many women are driven to commit suicide due to a lack of family support, collusion, witness intimidation, isolation and encouraging victims to return back to perpetrators.

Karma Nirvana provide a range of specific services including providing emotional support to victims throughout the criminal justice process. This is probably one of the most important services to get right alongside appropriate risk assessments, as victims will be feeling a number of emotions including pressures from family members who may not be named in the case. The family tentacles are vast spreading across the UK and internationally carrying the risk of kidnap and abduction which is widely documented in cases such as that of murdered teenager Shafilea Ahmed.

My sister Robina was one of these victims as she suffered years of abuse, seeking support from both family and community members only to be encouraged to return back to her husband as leaving was deemed dishonourable. Finally Robina committed suicide by setting herself on fire and this was deemed more honourable than divorcing her husband and this was also to be the catalyst for the charity Karma Nirvana. The term ‘Honour Based Abuse’ is the current established terminology used by the police service. The notion of 'honour' is often associated with the behaviour that is expected in relation to the family rooted within their belief and value systems. Victims clearly understand how their behaviours are invested in the families reputation and how they have the power to honour and/or dishonour the family. It will be important for advocates to identify how victims experience a families honour system as this will provide clear indicators linked to risks and motivations that can lead to significant harm, forced marriage and the extreme murders.

Since 2008, the national Karma Nirvana helpline has taken 44,473 calls supporting victims and survivors of honour based abuse and forced marriage across the UK. Forced Marriage cuts across many areas of law from criminal and immigration law, through to private and public family matters. Dealing first with the criminal aspect, the topic of the criminalisation of forced marriage has been a long-standing contentious issue, creating a real divide between individuals and organisations alike. The Home Office first consulted on the need to criminalise forced marriage back in 2005. A decision was then made not to criminalise as many individuals were dubious as to the real benefit of a criminal offence and feared that it may discourage victims from reporting. Concerns that “a new offence would disproportionately impact on Black and Minority Ethnic communities and might be misinterpreted as an attack on those communities” was also provided as a justification to not criminalise forced marriage. After long standing campaigns by non governmental organisations and survivors, the Home Office consulted more widely on this issue again in 2012 and a majority consultation agreed that the time had now arrived to create a criminal offence.

If a family deem a dishonourable act has or could occur they will be motivated to maintain or restore the families honour and this is often the motivation for a crime. It is important to note that an honour based system is not only rooted in a patriarchal system as victims also experience abuse from females who have a fundamental role in core parenting which is an opportunity to enforce honour codes. Furthermore past criminal cases highlight mothers and mother-in-laws committing murders as a means to restore honour. EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 13

Our hope is that professionals seek advice as these abuses are extremely complex as victims experience abuse from multiple perpetrators within a family dynamic that will be advocating themselves as a protective factor. The tool box for professionals remains vast with Karma Nirvana's dedicated national helpline a resource for both victims and professionals, a government forced marriage unit, 15 CPS regions have now been trained, statutory guidelines, experts, specific refuges for men and women experiencing forced marriages and honour abuse. Furthermore, HMIC (Majesties Inspectorate of Constabularies) is currently inspecting all police forces to identify how they are performing in this area of abuse with a view to improve standards.

In 2014 forced marriage and the breach of FMPO’s became a criminal offence in England and Wales and in June 2015 Karma Nirvana welcomed the first criminal conviction for forced marriage. This involved a 34 year business man being jailed for 16 years for forced marriage, rape, bigamy and voyeurism. Forced marriage inevitable encompasses a multitude of offences, notably rape and sexual assaults. Since the criminalisation of forced marriage, Karma Nirvana has received an increase in calls from victims, in addition to professionals such as the police and social care. There has been a notable increase in awareness amongst professionals, however the training that should have gone hand in hand with this increased awareness has sadly not been provided. This often leads to ineffective risk management in these cases with misguided safeguarding plans implemented, leading to victims being left to inevitable additional vulnerability.

My message is simply that there is no excuse not to effectively advocate these issues effectively and sending out a clear message how cultural acceptance does not mean accepting the unacceptable. ■ Further information Passionately working to break the silences of the many silenced through Karma Nirvana mission, increase reporting, reduce isolation & save lives.

Since 2013, Karma Nirvana has trained 20 police constabularies nationally to improve responses and effective risk assessment and safeguarding. Notably, South Wales Police were the first constabulary to pilot this programme and were also (non-coincidently) the first constabulary to achieve a successful forced marriage conviction.

Karma Nirvana voted City Women's Network Charity of Year 2012 www.karmanirvana.org.uk Follow me on twitter @Jas_Sanghera_KN Helpline 0800 5 999 247

The area of forced marriage is also a growing issue within private family and public care proceedings. With increasing reporting levels and awareness within social care, more referrals to care proceedings are being made whereby forced marriage and honour based abuse is an issue. Karma Nirvana is often instructed in these care proceedings to provide an expert report on the risk posed to a young person. Further more, the Court of Protection is also witnessing a growing number of applications for the local authority to pursue nullity proceedings on behalf of incapacitated adults forced into marriage. Incidentally, the criminal law makes no exception for incapacitated adult to be forced in marriage, yet we have not witnessed a single prosecution relating to incapacitated adults forced into marriage.

Natasha Rattu is the Head of Learning and Development at Karma Nirvana and is a non-practising barrister. She was awarded the coveted Crown Prosecution Service Anthony Walker Scholarship in 2010. Jasvinder Sanghera CBE, is an Independent Expert Advisor to the Courts and Independent Reviews providing expert evidence and cultural risk assessments, reports and acting Chair for Domestic Homicide Reviews. Jasvinder’s evidence has been tested in the Court of Appeal case of B-M Children 2009 and Lord Justice Wall cited extensively from this evidence stating it to be ‘impressive and compelling’ after compelling stating how she speaks from the professional experience of being involved in numerous cases. She is also Author of best selling book Shame, personal biography

In order for the victims we support to receive justice for the heinous abuses committed against them, it is first imperative that we as professionals understand the issues. It is only then we can begin to get it right and see the changes this area needs. It is clear that that awareness and law has resulted in greater accountability that dispels myths linked to these practices forming part of a communities religion and/or tradition. However victims responses are still likely to be very much dependent of the professionals awareness as many victims continue to report how they are misunderstood, not believed and options of mediation are often advocated clearly placing victims at greater harm. EXPERT WITNESS JOURNAL

Awarded: CBE 2013 For Services to Victims of Forced Marriages & Honour Based Violence, Woman of Year Award, Pride of Britain Award, Guardian listed as one of Worlds Most Inspirational Women and Honorary Doctor University of Derby Links www.familylawweek.co.uk/site.aspx?i=ed115490 www.familylawweek.co.uk/site.aspx?i=ed120722

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 14

Experts and Lawyers Behaving Badly: What Sanctions or Measures are Open to Tribunals? This article deals with an issue that perpetually pervades domestic and international arbitration; the improper conduct of experts and lawyers. As this article will explain, whilst sanctions available to courts to control improper conduct are reasonably well established, the sanctions available to arbitral tribunals are not so lucid. considers what sanctions and measures are available to an arbitral tribunal along with some selected case law. The second half of the paper will follow the same structure as applied to experts.

Overview One may consider the idea of a well-behaved lawyer or expert a contradiction in terms. It has been said that ‘about trials hang a suspicion of trickery and a sense of a result depending on cajolery or worse’1. That may be a cynical view, but the fact is that lawyers and experts are instructed and paid by their clients in the hope that they will assist the client to prevail. It is certainly the case for lawyers that their remuneration is often partly or entirely linked to whether or not the case is won and for both lawyers and experts, the prospect of repeat business from the client is much more likely to follow on from success as opposed to failure.

Lawyers The Standards The position in domestic litigation is reasonably clear. The source of the duty to the court lies in public interest3 and the court, in enforcing it, is acting as a guardian of the due administration of justice.4 The courts have therefore assumed an inherent power to impose these duties. The principle is that “the court has a right and duty to supervise the conduct of those appearing before it, and to visit with penalties any conduct of a lawyer which is of such a nature as to defeat justice in the very cause in which he is engaged professionally.”5 The general duties are supplemented in England and Wales by the Civil Procedure Rules which give the court wide-ranging powers6 to deliver a whole range of procedural and even criminal sanctions, such as contempt of court or perjury.

The drive for success will invariably affect the manner in which the parties' lawyers lay all the relevant facts before the court which in turn will impact on the ability of the judge or tribunal to administer justice. The maxim ‘truth is best discovered by powerful statements on both sides of the question’2 is right, but only to the extent that lawyers and experts act honestly, ethically and in accordance with the rules and provided they do not – knowingly or recklessly, directly or indirectly – procure or deliver evidence to the court in an improper way. That said, it is simply human nature to test the boundaries as far as possible and so it must follow that clear rules need to be in place that define the boundaries of how lawyers and experts may act and which set out the powers available to a tribunal to enforce them.

In contrast, the position in domestic and international arbitration is less clear. This is ultimately because the parties have autonomy on whether to arbitrate their disputes and if they choose to arbitrate, what rules will apply in that arbitration. Nevertheless, the scale of autonomy is clipped to a greater or lesser degree by mandatory legislation governing the rules and conduct of arbitration.

This is a fascinating topic, but also an enormous one, and so what follows is limited to an overview of only some of the issues on this subject. The first half of the paper defines ‘good’ behaviour by reference to standards that apply or may apply to lawyers admitted in England and Wales in domestic and international arbitration. It summarises some of the things typically considered to be ‘bad’ behaviour, then EXPERT WITNESS JOURNAL

In England, with regard to lawyers conduct, the autonomy is fairly wide. The Arbitration Act and most major institutional arbitration rules contain no specific requirements for lawyers representing parties in an arbitration. Indeed all that the rules say are that the parties have a right to be represented by an individual, whether legally qualified or not and 14

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 15

subject to proof of authority, if required.7 The exception to this is the most recent version of the LCIA rules which came into effect on 1 October 2014. Annex 1 contains rules to which all legal representatives are required to comply,8 which includes rules against making false statements, concealment of documents and procurement of misleading evidence.

Both the SRA and BSB Handbook concern broadly similar principles. These include: 1. upholding the rule of law and the proper administration of justice; 2. acting with integrity; 3. not allowing one’s independence to be compromised;

Those rules are stated to be subservient to national codes of conduct. Solicitors admitted in England and Wales are subject to the Solicitors Regulation Authority’s (‘SRA’) Handbook (the ‘SRA Handbook’) and barristers are governed by the Bar Standards Boards (‘BSB’) Handbook (the ‘BSB Handbook’), which includes the code of conduct for the Bar of England and Wales, but there is some debate as to whether the SRA Code applies to domestic and international arbitration.

4. acting in the best interests of each client; 5. providing a proper standard of service to one clients; and 6. behaving in a way that maintains the trust the public places in you and in the provision of legal services. Perhaps unsurprisingly, there have been no reported cases in England and Wales dealing with the application of any of the codes of conduct or sanctions to arbitration. Outside the closed doors of arbitration, the administration of punishment on solicitors or barristers when the codes of conduct are breached, though not available to the tribunal, is of course available to the BSB and the SRA.

The SRA Handbook’s overarching principles9 provide that they apply to all activities regulated by the SRA and that they ‘underpin all aspects of practice’. The SRA Handbook contains a code of conduct which is split into mandatory provisions and indicative behaviours, all of which flow from these overarching principles. Chapter five of the code deals specifically with duties in relation to the courts. The ‘court’ is defined in the glossary as ‘any court, tribunal or inquiry of England and Wales, or a British court martial, or any court of another jurisdiction’. Some argue that a ‘tribunal or inquiry of England and Wales’ does not cover an arbitral tribunal either constituted by a foreign nominating body and/or where the seat of the arbitration is outside of England and Wales.

National codes of conduct aside, a more interesting area concerns the standards that apply in international arbitration. Often those arbitrations involve lawyers from different jurisdictions where different national codes of practice apply. In England and Wales, the SRA seems to acknowledge its rules are not fit for purpose on an international platform, as demonstrated by a consultation carried out in 2011 and 2012, which was aimed at determining how the SRA might regulate international practice. No conclusions have been reached to date. For some time, industry bodies have promoted the idea of a multinational mandatory code of conduct that regulates the conduct of lawyers but the source of the problem has been the barrier to a one size fits all solution. In 2013,15 the International Bar Association published helpful Guidelines on Party Representation in International Arbitration (the ‘2013 Guidelines’) which provide for a code of conduct to which it is suggested counsel should adhere. They apply when the parties agree or where the tribunal has authority to rule on matters of party representation, and how party representatives may interact with the expert.

The position for barristers is clearer. The BSB Handbook clearly applies to barristers acting in both domestic and international arbitration. It states that the core duties apply to all BSB regulated persons.10 ‘BSB regulated persons’ is defined as ‘BSB authorised individuals’ which in turn is defined as all barristers admitted in England and Wales.11 The duties apply when providing ‘legal services’,12 a term which is defined as including ‘legal advice representation and drafting or settling any statement of case witness statement affidavit or other legal document’.13 This very broad definition must capture representation and documents produced in both a domestic and international arbitration forum, a view which is supported by a further rule which states that the BSB Handbook applies to all barristers when providing legal advice.14 Rule C1, ‘You and the court’, is the rule which imposes specific duties on barristers when acting in a court. ‘Court’ is defined as meaning ‘any court or tribunal or any other person or body whether sitting in public or in private before whom a barrister appears or may appear as an advocate’. Thus a ‘tribunal…sitting in private’ must surely contemplate both domestic and international tribunals. EXPERT WITNESS JOURNAL

Bad Behaviour What do we mean by bad behaviour? In the context of lawyers interaction with experts, it includes things like: 1. coaching the expert; 2. outside influence: lawyers either writing the expert’s report for him or ‘suggesting’ amendments to opinions expressed, or asking for section of the report to be removed;16 15

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 16

general guidelines. If such violation is found by the Arbitral Tribunal, the Arbitral Tribunal may order any or all of the following sanctions against the legal representative: (i) a written reprimand; (ii) a written caution as to future conduct in the arbitration; and (iii) any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal under Articles 14.4(i) and (ii).

3. interference with joint experts’ meetings; 4. interference with joint experts;17 5. lawyers withholding information, either from their own expert or from the other party’s expert; 6. lawyers or their clients undertaking the analysis of the facts and providing their analysis as the only basis for the expert to form his opinion from (often the reason stated for this is said to be a saving on costs); and

Whilst this enhanced granularity is welcome, the sanctions at clause 18.6 arguably amount to nothing more than a slap on the wrist and are therefore unlikely to control attitudes of counsel. Sanctions set out in other institutional rules are more general in nature:

7. lawyers providing a restrictive brief to their expert which ultimately impinges on his credibility. Of all the sources of naughtiness, one which arises time and again is the question of witness coaching, be it expert or factual. This is one of the issues that highlights the problems with different national practices. In England and Wales, witness coaching is considered unlawful, but in the United States for instance, it is common practice for attorneys to intensively prepare witnesses such that a failure to do so can amount to negligence on the part of the lawyer. The 2013 Guidelines seem to fan the flames of uncertainty by permitting witness preparation, without prescribing how far lawyers can go. Institutional rules vary: the LCIA18 and SIAC19 rules permit lawyers to interview witnesses whereas the ICC rules are silent on this point.20

• ICC Article 22(2): ‘In order to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.’ • UNCITRAL Article 17.1: ‘Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.’

Sanctions What can the tribunal do about bad conduct? Since the tribunal derives its powers entirely from the rules of the arbitration, any sanctions it can levy will be determined by reference to those rules, or by reference to rules incorporated into the arbitration by agreement (such as the 2013 Guidelines). Of all of the rules, the latest edition of the LCIA rules arguably goes the furthest. The key provisions are contained within article 18.

• SIAC Article 16.1: ‘The Tribunal shall conduct the arbitration in such a manner as it considers appropriate, after consulting with the parties, to ensure the fair, expeditious, economical and final determination of the dispute.’

18.5 Each party shall ensure that all its legal representatives appearing by name before the Arbitral Tribunal have agreed to comply with the general guidelines contained in the Annex to the LCIA Rules, as a condition of such representation. In permitting any legal representative so to appear, a party shall thereby represent that the legal representative has agreed to such compliance.

• Arbitration Act section 34(1): ‘It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.’ The 2013 Guidelines, though not necessarily mandatory, are more prescriptive. Article 26 suggests four remedies which should be available to the tribunal, which are: 1. admonish the lawyer;

18.6 In the event of a complaint by one party against another party’s legal representative appearing by name before the Arbitral Tribunal (or of such complaint by the Arbitral Tribunal upon its own initiative), the Arbitral Tribunal may decide, after consulting the parties and granting that legal representative a reasonable opportunity to answer the complaint, whether or not the legal representative has violated the EXPERT WITNESS JOURNAL

2. draw appropriate inferences from evidence or legal arguments; 3. consider the misconduct in apportioning costs; and 4. any other measure in order to preserve the fairness and integrity of the proceedings.

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 17

previously been an employee of the law firm at which one of the tribunal members was a partner. The tribunal noted that a claim to remove a party’s counsel should not be used as an alternative to a claim against the tribunal itself and that it was reluctant to encourage any practice which would hold counsel to a standard higher than accepted rules of professional conduct and ethics. Hrvatska Elektroprevida was distinguished on the grounds that there had been late disclosure.

With the exception of the award of costs against the offending lawyer’s client, the sanctions (such as they are) that actually bite are aimed either at the expert or the evidence. Is that right? When an expert says, in defence of criticism “he only did what he was instructed to do”, perhaps the criticism should only be levelled at the lawyer? But this outcome is rarely the case, it is submitted. The tribunal will rarely criticise the legal team’s infelicitous treatment of the expert or his evidence, rather it will target the expert or the evidence itself. In extreme situations, the other party may make an application to have the evidence excluded, or the tribunal may decide to do so on its own accord. It is suggested that the rules and sanctions in domestic and international arbitration as to the conduct of lawyers have some way to develop before they are clear and effective.

The case of Pope and Talbot Inc. v Government of Canada24 is an example of an arbitral tribunal demonstrating a willingness to exercise its procedural powers to sanction a party because of the conduct of its lawyers. The respondent’s counsel inadvertently transmitted legal advice given to her client, commenting on the award of the tribunal, to the claimant’s counsel and the tribunal. The claimant’s counsel showed this document of advice (including the tribunal’s order) to a journalist at the Canadian National Post, who referred to it in an article. The arbitral tribunal found this disclosure of confidential material reprehensible and fined the claimant $10,000 which it stated that it expected counsel would ’voluntarily and personally assume’. It also went on to state that it expected that claimant’s counsel would make public this order as he had done with all previous orders, awards and decisions of the tribunal. The case of Victor Pey Casado v Republic of Chile25 is an example of where costs were imposed because of ex-parte contacts between party and co-arbitrator and resulting delays.

Cases Case law addressing lawyer misdemeanours is hard to come by owing to the confidential nature of arbitral proceedings in most jurisdictions. The notable exception is of course ICSID, which publishes some awards produced pursuant to its rules.21 These give us some insight into how a tribunal has dealt with lawyer misconduct. Two areas of interest are the power to disqualify a lawyer from proceedings and sanctions applied to lawyers. With regard to the first, there are conflicting authorities on the extent to which this is something that falls within the remit of the arbitral tribunal’s jurisdiction as opposed to a matter reserved for the national courts. In Hrvatska Elektroprevida v Republic of Slovenia,22 the tribunal disqualified a lawyer from the proceedings due to a perceived lack of independence. Here the respondent had appointed a counsel of the same chambers (Essex Court Chambers) as the president of the Tribunal. The claimant objected on the grounds that they were only informed about this at a very late stage in the proceedings (about two weeks before the hearing was to take place) and that they were not satisfied that this would not compromise the independence of the president of the tribunal. The respondent explained that they had not in fact retained the counsel in question until a short time before the fact was communicated to the tribunal. The arbitral tribunal ruled that though there is a fundamental right for parties to choose their own representation freely, it would in this case have to give way to the overriding principle of the tribunal’s immutability. Thus the counsel was barred from participating further in the proceedings. In contrast, in The Rompetrol Group N.V. v The Republic of Romania23 the arbitral tribunal refused to disqualify counsel from proceedings on the basis of potential bias of the tribunal. In this case the respondent tried to have the claimant’s counsel removed on the basis that he had EXPERT WITNESS JOURNAL

Experts The Standards Moving on to experts, what rules or guidelines relate to their conduct? In domestic arbitration, the starting point is CPR 35,26 its practice direction27 and the guidance for the instruction of experts in civil claims.28 The rules and guidelines are familiar to most and represent the most comprehensive source of rules available to UK practitioners. Whilst the rules are only compulsory in litigation, they are often incorporated into bespoke arbitration rules, or the parties agree they shall apply ad hoc. Those rules were influenced to a significant degree by the Ikarian Reefer case.29 There, the judge summarised the duty of an expert as “impartial, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any party.” Even if CPR 35 does not apply in the arbitration, this and subsequent court guidance that has applied the principles of Ikarian Reefer30 is generally considered to be persuasive authority in arbitration, having influenced the approach taken by many arbitral panels when faced with challenges to the expert’s conduct.31 17

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 18

Next, codes of practice. The Academy of Experts produces one such code setting standards for experts which requires a prevention of anything which impairs the expert’s independence, objectivity and integrity, impartiality and which causes a conflict of interest. 1. Experts shall not do anything in the course of practising as an expert, in any manner which compromises or impairs or is likely to compromise or impair any of the following: a. the expert’s independence, impartiality, objectivity and integrity;

Whilst these codes of practice are not binding on an arbitral tribunal, they may be made so if the parties agree. The Royal Institute of Chartered Surveyors (‘RICS’) published the fourth edition of its practice statement and guidance note entitled ‘Surveyors Acting as Expert Witnesses’33 on 4 April 2014, which came into effect on 2 July 2014. Practice statements are mandatory for RICS members, whereas guidance notes are recommended good practice. Whilst enforcement of the rules in the practice statement is only likely to be available to the Institute (unless the parties agree to adopt the practice statement as part of the arbitration rules), the fact that a breach of the rules in the practice statement may lead to expulsion from the professional body is likely to deter bad behaviour.

b. the expert’s duty to the court or tribunal; c. the good repute of the expert or of experts generally; d. the expert’s proper standard of work; and e. the expert’s duty to maintain confidentiality.

Next, institutional rules. Specific duties, in the way that CPR 35 contains specific duties, are light on the ground. An area of some interest is the requirement for independence, which one would think is a cornerstone of an expert’s duty. And yet, in the major institutional rules, any express requirement for expert independence seems to be limited to tribunal appointed experts and not party appointed experts.34 Indeed, UNCITRAL goes further, providing that “expert witnesses…may be any individual, notwithstanding that the individual is a party to the arbitration or in any way related to a party.”35 The lack of guidance in the institutional rules on this issue and others perhaps reflect the differing practices in different jurisdictions. In civil law jurisdictions in particular, less emphasis is placed on expert witnesses.

2. An expert who is retained or employed in any contentious proceeding shall not enter into any arrangement which could compromise his impartiality or make his fee dependent on the outcome of the case nor should he accept any benefits other than his fee and expenses. 3. An expert should not accept instructions in any matter where there is an actual or potential conflict of interests. Notwithstanding this rule, if full disclosure is made to the judge or to those appointing him, the expert may in appropriate cases accept instructions when those concerned specifically acknowledge the disclosure. Should an actual or potential conflict occur after instructions have been accepted, the expert shall immediately notify all concerned and in appropriate cases resign his appointment.

Partly because of the lack of granularity in the institutional rules, the IBA Rules on Evidence were introduced in 2010.36 It is now increasingly common practice for the tribunal to ask the parties to adopt these rules. They address a number of things in detail, including the requirements that an expert report must meet, independence of opinion, conflicts of interest and so on. There is an argument however that by adopting these rules, tribunals take the arbitration process closer to litigation, which some say is a step too far.

4. An expert shall for the protection of his client maintain with a reputable insurer proper insurance for an adequate indemnity. 5. Experts shall not publicise their practices in any manner which may reasonably be regarded as being in bad taste. Publicity must not be inaccurate or misleading in any way. 6. An expert shall comply with all appropriate Codes of Practice and Guidelines.

Bad Behaviour The aforementioned rules typically address the standards to which experts must adhere, but what sorts of actions or inaction is commonly encountered that contravenes these standards? As lawyers find numerous ways in which to misbehave, so it would seem do experts. Examples include:

The Chartered Institute of Arbitrators has also produced a protocol for party appointed experts in international arbitration.32In its words: It provides a complete regime for the giving of such evidence and provides a procedure for identifying the issues to be dealt with by way of expert evidence, the number of experts, their identity, what tests or analyses are required, the independence of the experts, the contents of the experts’ opinions, privilege, meetings of experts and the manner of expert testimony. EXPERT WITNESS JOURNAL

1. experts as advocates for their client’s case/lack of independence;37 2. incentive based fees;38

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 19

3. reports written and opinions formed by assistants instead of the expert;39 4. lack of objectivity; 5. selective use of evidence;40 6. lack of requisite expertise;41

One solution that is often mooted is to do away with party appointed expert and to only permit tribunal appointed joint experts. The expert would need to be provided with a joint brief and to be paid by the parties jointly. However, although all the main institutional rules provide for it, there has been a paucity of popularity for that type of expert in the UK, perhaps because of reduced control a party has in appointing an individual and providing him or her with instructions together with a view that there is less opportunity to test or challenge a joint expert’s opinion.

7. failure to test the veracity of materials presented to them; and 8. following instructions from lawyers instructing them when it is clear on the face of it that what you are being asked to do will not result in a credible reports under scrutiny. Sanctions How are these issues addressed? The Arbitration Act 1996, the major arbitration rules and the IBA rules on evidence all contain provisions which gives the arbitrator the discretion to decide the admissibility, relevance or weight given to evidence, including expert evidence.

Cases Given that tribunals are often persuaded by a court’s interpretation on matters concerning the conduct of experts, it is perhaps useful to consider some of those cases now. First, the matter of the expert as a ‘hired gun’. In Norbrook Laboratories Ltd v Tank42 the court was reluctant to interfere with this discretionary power of the arbitrator, in a claim challenging the independence of an expert. Indeed the court was of the opinion that any issue of objectivity and independence could be dealt with adequately through the powers already available to the arbitrator. However, in Munkenbeck and Marshall v Kensington Hotel43 an expert was criticised by the court for losing sight of the proper role of an expert which is to the assist the court, and instead adopted the stance of advocating his client’s case. The court decided that on this basis the value of the expert’s evidence had been greatly diminished. The ‘hired gun’ cases extend beyond cases where the expert assumes the role of an advocate. In Royal and Sun Alliance Trust Co Ltd v Healy and Baker44 a valuation expert was held to be extremely selective in his consideration of evidence, again reducing the value of the evidence.

• LCIA – Article 21.1(f): The Arbitral Tribunal shall have the power ‘to decide whether or not to apply any strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material tendered by a party on any matter of fact or expert opinion; and to determine the time, manner and form in which such material should be exchanged between the parties and presented to the Arbitral Tribunal.’ • UNCITRAL – Article 27.4: ‘The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.’ • SIAC – Article 16.2: ‘The Tribunal shall determine the relevance, materiality and admissibility of all evidence. Evidence need not be admissible in law.’

Any public comments can be used to undermine the expert’s credibility in future, regardless of who made them. In Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd45 the judge decided to dedicate the final part of his judgement to criticising the defendant’s expert. The expert in question was an ‘eminent architect’ with a wealth of experience as an expert witness. Some years prior to this case he had written an article on his perception of the duties of an expert witness, which advocated a somewhat adversarial approach. This article was summed up by the judge when he described the experts’ use of the term ‘pragmatic flexibility’ as a euphemism for ‘misleading selectivity’. In light of this he decided to attach very little significance to the particular expert witness.

• SIAC – Article 16.4: ‘The Tribunal may in its discretion ... exclude cumulative or irrelevant testimony or other evidence…’ • Arbitration Act 1996 section 34(2)(f): the tribunal may decide ‘whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented.’ Although not a remedy available to the tribunal, if an expert has acted improperly, the terms of the expert engagement may not protect the expert witness against a claim for breach of contract or negligence in the event that the expert fails to fulfil his duties in accordance with the applicable rules or guidelines. Furthermore, in such instances, professional indemnity insurance may not provide any or adequate cover. EXPERT WITNESS JOURNAL

Experts should ensure they have sufficient expertise in the subject matter they are asked to give an opinion on. The recent Privy Council case Caribbean Steel Company Ltd v Price Waterhouse (a Firm)46 con19

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 20

firmed that the court may attach less weight, or reject an experts evidence entirely, once it has properly considered it.

References [1] Lectures on Legal Topics, Learned Hand, The Deficiencies Of Trials To Reach the Heart of the Matter, 105 (The MacMillan Co. 1926). [2] In Ex p. Lloyd (1822) Mont 70 at p. 72n.

Lastly, one frequently cited case that acts as an example of a shopping list of what not to do as an expert is that of Great Eastern Hotel Company Ltd v John Laing Construction Ltd and Laing Construction Plc.47 Here, programming experts were appointed by both sides to analyse the critical path of a construction project. The judge was less than impressed by the defendant’s expert concluding that little weight could be attached to his evidence and preferring the evidence of the claimant’s expert on all possible occasions throughout the judgment. The judge went on to criticise the expert for being naïve, making fanciful statements, having a lack of knowledge of the facts, conducting insufficient research, submitting incomplete analyses, uncritically accepting statements made by the defendant, omitting relevant evidence from his analysis and discussion, being unreliable and under cross examination, denying statements he previously made.

[3] Rondel v. Worsley [1969] 1 A.C. 191 at p. 227 per Lord Morris of Borth-y-Gest. [4] Myers v. Elman [1940] A.C. 282 at p. 302 per Lord Atkin. [5] Myers v. Elman, supra, at p. 319 per Lord Wright. [6] See for instance CPR 2.4 and 3.1. [7] LCIA Article 18.1 and 18.2; ICC Article 26(4); ICC Article 26(4); UNCITRAL Article 5; SIAC Article 20; Arbitration Act 1996 section 36. [8] Article 18.5 and 18.6. [9] SRA Handbook 2011, SRA Principles 2011, Part 1: SRA Principles, Version 12, 31 October 2014. [10] Rule C1.1. [11] Glossary. [12] Rule C2.1. [13] Glossary. [14] Rule C1.2.a and rC2.2. [15] http://www.ibanet.org/Publications/publications _IBA_guides_and_free_materials.aspx. Accessed 4 March 2015. Previously, there existed an IBA Code of Ethics, but it contained a double deontology, which meant a lawyer was subject to more than one set of ethical rules. There is also the Code of Conduct for European Lawyers prepared by the Council of Bars and Law Societies of Europe (CCBE) (http://www.ccbe.eu/index.php?id=32, accessed 4 March 2015), although it has had limited use.

Conclusion There is no doubt there is a considerable gulf with regard to the prescription and regulation of expert and lawyer conduct between UK litigation and arbitration. Part of the problem is that the lack of judicial precedent in arbitration makes it difficult for there to be any real transparency as to the effectiveness of arbitration rules and the conduct of those participating. A further difficulty lies with the high level of autonomy that parties to an arbitration benefit from. The problem is deeper still in international arbitration: at its core the problem lies with the finding a mutually agreeable common ground amidst a wide spectrum of cultural views as to what is and is not acceptable. In the last five years, the International Bar Association has taken positive steps towards finding a common ground, but their codes have been achieved through a series of compromises that for some has resulted in a watering down of what might otherwise have been well defined rules and imposing sanctions. It is hoped that in the next five years, revisions to the codes of conduct, the amendment of institutional rules and legislative reform will move us closer to arbitration regimes that are better able to prescribe, capture and admonish lawyers and experts behaving badly. ■

[16] See for example Robin Ellis Ltd v Malwright Ltd [1999] B.L.R. 81. [17] See for example Edwards v Bruce and Hyslop (Brucast) Ltd [2009] EWHC 2970 (QB). [18] Article 20.6. [19] Article 22.5. [20] The IBA Rules of Evidence Article 4.3 expressly permit interaction between a party’s legal counsel and its actual or potential witnesses. [21] https://icsid.worldbank.org/apps/ICSIDWEB /cases/Pages/AdvancedSearch.aspx. Accessed 4 March 2015. [22] ICSID Case No. ARB/05/24. [23] ICSID Case No. ARB/06/3. [24] NAFTA Case of 27 September 2000. [25] Award in ICSID Case No. ARB/98/2 of 8 May 2008. [26] http://www.justice.gov.uk/courts/procedurerules/civil/rules/part35. Accessed 4 March 2015. [27] http://www.justice.gov.uk/courts/procedurerules/civil/rules/part35/pd_part35. Accessed 4 March 2015. [28] https://www.judiciary.gov.uk/wp-content/uploads/2011/03/guidance-for-the-instruction-of-experts-incivil-claims-2-2.pdf. Accessed 4 March 2015. Published by the Civil Justice Council. This replaced the Protocol for the Instruction of Experts in Civil Claims that was annexed to Practice Direction 35.

Article by James Pickavance, Simon Oats copyright Eversheds 2015 This article originally appeared on Eversheds website www.eversheds.com Many thanks to James Pickavance, Simon Oats and Anushka Chhagan for their invaluable help. EXPERT WITNESS JOURNAL

[29] National Justice Compania Naviera SA v Prudential Assurance Co Ltd (the ‘Ikarian Reefer’) (No.1) [1993] 2 Lloyd's Rep. 68.

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 21

EWHC 1748 (TCC); Great Eastern Hotel v John Laing Construction Ltd [2005] EWHC 181 (TCC); 99 Con. L.R. 45.

[30] See in particular General Medical Council v Meadow [2006] EWCA Civ 1390 and London Fire and Emergency Planning Authority v Halcrow Gilbert Associates Limited and Ors [2007] EWHC 2546 (TCC). [31] Valuation for Arbitration by Mark Kantor p.289.

[40] In Royal and Sun Alliance Trust Co Ltd v Healy and Baker, Unreported, 13 October 2000, a valuation expert was held to be extremely selective in his consideration of evidence, again reducing the value of the evidence. In Cala Homes (South) Ltd and others v Alfred McAlpine Homes East Ltd [1995] EWHC 7 (Ch) the judge decided to dedicate the final part of his judgement to criticising the defendant’s expert. The expert in question was an ‘eminent architect’ with a wealth of experience as an expert witness. Some years prior to this case he had written an article on his perception of the duties of an expert witness, which advocated a somewhat adversarial approach. This article was summed up by the judge when he described the experts’ use of the term ‘pragmatic flexibility’ as a euphemism for ‘misleading selectivity’. In light of this he decided to attach very little significance to the particular expert witness.

[32] https://www.ciarb.org/docs/default-source/practiceguidelines-protocols-and-rules/the-use-of-party-appointedexperts.pdf?sfvrsn=2. Accessed 5 March 2015. [33] http://www.rics.org/us/shop/Surveyors-Acting-as-Expert-Witnesses-20009.aspx. Accessed 5 March 2015. [34] LCIA Article 21.1(a); UNCITRAL article 29. [35] Rule 27(2). [36] http://www.ibanet.org/Publications/publications _IBA_guides_and_free_materials.aspx. Accessed 4 March 2015. [37] See also Munkenbeck and Marshall v Kensington Hotel [1999] 15(3) Const LJ 231 where an expert was criticised by the court for losing sight of the proper role of an expert which is to the assist the court, and instead adopted the stance of advocating his client’s case. The court decided that on this basis the value of the expert’s evidence had been greatly diminished. See also Pearce v. Ove Arup Partnership Ltd and Ors [2001] EWHC Ch 455; London Underground v Kenchington Ford Plc [1998] 63 Con LR 1 TCC.; Royal and Sun Alliance Trust Co Ltd v Healy and Baker LTL 19/10/2000; Great Eastern Hotel v John Laing Construction [2005] EWHC 181.

[41] Proton Energy Group SA v Orlen Lietuva [2013] EWHC 2872 (Comm); [2014] 1 All E.R. (Comm) 972; Humber Oil Terminals Trustee v Associated British Ports [2012] EWHC 1336 (Ch); [2012] L. and T.R. 28. [42] [2006] EWHC 1055 (Comm). [43] [1999] 15(3) Const LJ 231. [44] [2000] Chancery Division. [45] [1995] EWHC 7 (Ch).

[38] Factortame Ltd v Secretary of State for the Environment (No.2) [2002] EWCA Civ 932; [2002] 4 All E.R. 97; [2003] B.L.R. 1.

[46] [2013] UKPC 18 (9 July 2013). [47] [2005] EWHC 181 (TCC). ■

[39] Skanska Construction UK Ltd (formerly Kvaerner Construction Ltd) v Egger (Barony) Ltd (Quantum) [2004]

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 22

Importance of Frank Disclosure of Factors that could Affect Expert’s Independence by Rachel Lidgate, Senior Associate, and Ramyaa Veerabathran Graduate Solicitor (India) at Herbert Smith Freehills Rachel Lidgate and Ramyaa Veerabathran, a senior associate and graduate solicitor (India) in our disputes team in London, consider the decision below.

A recent High Court decision underlines the burden on a litigating party and its expert witness to state frankly, and with sufficient detail, the nature and extent of any connection that could affect the expert’s independence: EXP v Dr Charles Simon Barker [2015] EWHC 1289 (QB).

Background The claimant brought a clinical negligence claim against the defendant, a consultant radiologist, alleging that he had negligently failed to spot an aneurysm on an MRI of her brain in 1999. The expert evidence was obviously crucial to the adjudication of the claim.

The court rejected a suggestion that information disclosed in the CVs of the defendant and his expert witness in this case should have put the claimant on notice of a connection between them, which she ought to have pursued. The burden to disclose was fairly and squarely on the defendant and his expert witness; the claimant should not be expected to engage in “time consuming detective work” to try to ascertain the full picture bearing on the expert’s independence.

The defendant’s CV, which was attached to his witness statement, indicated that he had been a senior registrar in the Department of Neuroradiology, Radcliffe Infirmary, Oxford. The expert’s CV showed that he had been, in the same period, a consultant neuroradiologist at the Radcliffe Infirmary. During cross examination at trial, it emerged that the defendant and the expert witness had shared a longstanding connection – the defendant had been trained by the expert and they had worked closely together over a substantial period. They had also collaborated on academic publications and had served together as officers of the British Society of Radiologists. It was further revealed that it was the defendant who had specifically proposed that this expert be requested to give evidence for the defence.

Where questions are raised about an expert’s independence, the court’s ultimate sanction is to rule that the evidence is inadmissible. However, even if the court concludes that it can fairly admit the evidence, any doubts about the expert’s independence and objectivity may affect the weight the court attaches to it. In either case, the implications for the party putting forward the evidence may be very serious indeed. The message for litigating parties, and expert witnesses, is that any issues should be disclosed fully and frankly at an early stage. EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 23

Decision After considerable reflection, the judge (Kenneth Parker J) concluded that the evidence could be fairly admitted, but warned that he must “bear powerfully in mind” the reservations he retained about the expert’s independence in assessing the weight he should give to his evidence.

render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters….

Onus to disclose interest The defendant submitted that the CVs provided by the defendant and his expert witness had effectively put the claimant on notice of a potential connection and that the onus was on the claimant to pursue the matter. Rejecting this submission, the court held that the burden to disclose the nature and extent of any connection was entirely on the defendant and, in particular, on the expert witness in question, who owed an overriding duty to the court. In this case, the court held, there had been a very substantial failure, both on the part of the defence and specifically on the part of the expert, to disclosure with adequate particularity the nature and extent of the connection so that the court would have a complete understanding of all matters that could realistically affect the expert’s independence. Parker J noted that this default had occurred despite the Master’s direction that experts should incorporate in their reports details of any employment or activity that raised a possible conflict of interest.

The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant….

Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.

The questions which have to be determined are whether: the person has relevant expertise; and he is aware of his primary duty to the Court…, and … willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty. The judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules. If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence. Even where the court decides to permit an expert to be called where his independence has been put in issue, the expert may still be cross-examined as to his independence and objectivity. Admissibility Parker J stated that he had very nearly ruled that the evidence in question was not admissible. However, he ultimately concluded that he could fairly admit the evidence. Two factors appear to have been significant: non-admission would have been fatal to the defendant’s case; and there was no doubt about the expert’s expertise and competence to assist the court on the central issue in the case. Although the judge ultimately decided to admit the evidence, he observed that his reservations about the expert’s independence would be taken into account in assessing its weight.

The court noted that failure to make early disclosure, particularly of an obvious conflict, would tend to raise a natural suspicion that the default was not inadvertent and reinforce a concern that the witness’ independence was so compromised that his/her evidence must be entirely inadmissible. Factors casting doubt on independence The judge identified two factors that particularly called into question the expert’s independence: The expert had referred to the defendant by his first name at one point in his oral evidence. This tended to indicate that at least traces of the bond between the defendant and his expert witness were still apparent and that the expert witness did not have the requisite degree of professional objectivity about the defendant.

In analysing the evidence before it, the court observed that the core issue in this case turned on the court’s evaluation of the competing, finely balanced medical judgments of experts supporting either party, which in turn was significantly influenced by its confidence in their impartiality. The judge noted that he had complete confidence in the objectivity of the claimant’s expert witness. On the other hand, his confidence in the defendant’s expert witness had been seriously undermined by the failure to disclose the potential conflict of interest. Therefore, the judge preferred to accept the judgment of the claimant’s expert witness. ■

The expert had failed to point out a seriously misleading reference to a discredited academic study that was relied upon in the evidence of another of the defendant’s experts. Legal principles applied The court noted that the principles applicable to the admissibility of expert evidence had been analysed and summarised with “admirable lucidity” in Phipson on Evidence at [33-29]:

Rachel Lidgate - Senior Associate For more information and access to Herbert Smith Freehills blogs please visit http://hsfnotes.com

It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings. The existence of such an interest … does not automatically EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 24

Writing Reports For Court. Some Guidance For The Aspiring Expert Witness. I’m sure that the poor fellow still has sleepless nights about what followed. And it was all so unnecessary…

The Cautionary Tale It had all been going so well. The trial was in its third day, there had been no major problems and everything was (for once) on schedule. Even the Judge – who possessed the look and demeanour of a dyspeptic Anne Robinson – had been unusually courteous and patient with those appearing in front of her.

A Few Basic Principles Despite some Judges’ pretensions to omniscience, the assistance of expert witnesses remains of crucial importance in the court process – throughout the legal system. In my (ahem) lengthy and varied career at the bar, I have encountered expert witnesses from a multitude of specialisms – psychiatrists, psychologists, paediatricians, entomologists (a particularly nasty murder, that), graphologists, surveyors and computer analysts. (I was once – and this dates me - faced with potential evidence from a self-proclaimed “Satanologist”. I eventually managed to convince the Judge that an interest in Dennis Wheatley novels and the music of Black Sabbath did not qualify someone to give an expert opinion on allegations of ritual abuse).

Into this sea of calm and politesse stepped the expert witness. A consultant from a leading London teaching hospital, resplendent in bow tie, Savile Row suit and suede brogues, he stood in the witness box and took the oath in a confident baritone. As he did so, I happened to notice, out of the corner of my eye, the slightly alarming sight of the Judge quietly unclipping papers from her court bundle… The consultant was introduced but, before he could answer any questions, the Judge intervened, holding up a traffic policeman’s hand to silence Leading Counsel. In her other hand, held at arm’s length and clamped between her thumb and forefinger were the unclipped papers. Waving them towards the consultant, she smiled a crocodile’s smile and, in a voice dripping with contempt, asked: “Is this….” (Waves papers) “…your report…?” EXPERT WITNESS JOURNAL

Notwithstanding this variety, however, all expert witnesses have one thing in common when it comes to the court process. They all have to play by The Rules… Over the years, I have been endlessly depressed by the number of experts (or aspiring experts) who were 24

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 25

simply unaware of the rules that govern them. It’s even more surprising nowadays when the rules are so readily available - all can be found via the Ministry of Justice website (www.Justice.gov.uk) or are readily Google-able (if that’s a word). For those involved in criminal proceedings (as an expert, not as a defendant...) the relevant guidance is set out in Part 33 Criminal Procedure Rules. For those instructed in family proceedings, Part 25 Family Procedure Rules (and Practice Direction 25A-E) apply and, for general civil litigation, it’s Part 35 Civil Procedure Rules (and Practice Direction 35). Of particular assistance is the Civil Justice Council “Guidance for the instruction of experts in civil claims”. None of these documents are extensive or excessively legalistic in their format. They may not be page turners in the conventional sense but they are (literally) required reading for any expert witness. Each set of rules varies slightly but are, essentially, very similar and actually pretty straightforward – they create the basic framework of good sense and fairness underpinning the use of expert evidence in the judicial process.

The motto has to be, then, “Read the rules!” An initial reading takes a short amount of time – two cups of tea and a slice of cake per set on average, I’ve found – but familiarity with the contents will save a world of anxiety, suffering and professional embarrassment later on. All “experts” must be familiar with the rules (it’s a mandatory requirement), so I’d strongly advise putting that kettle on. It goes without saying (or should) that anyone professing to be an expert should also have the appropriate qualifications and experience. A lower second in metalwork bought, online, from the University of Arkansas doesn’t really make you an expert in aeronautical engineering. (I suspect my Satanologist had to fall back on a different career). The Letter of Instruction This, of course, is where it all (really) starts – although there is much fun to be had amongst lawyers in attempting to agree appropriate experts prior to the LOI. As a general rule, lawyers will never admit to not having heard of an expert, no matter how esoteric their field. (Whisper it not, but I did - on one occasion - make up the name of an entirely fictitious “expert” in discussions with some particularly egregious advocates, just to see the sage nodding of heads and “Yes, I think I used him about a year ago…” responses).

However, the rules are often overlooked. As an example, a common trait amongst expert witnesses is a failure to appreciate that their sole function is to assist the court in making a decision and that they are emphatically not there as the “hired gun” representing the interests of the client who paid their fee (that’s what lawyers do…). The duty of the expert witness is, exclusively, to the court.

As far as the LOI itself is concerned, it may come as a surprise (particularly to some solicitors) that there are actual rules applicable to those giving the instructions. For example (and this is from the Civil Justice Council Guidance) the LOI should include: • Basic information – names, addresses, telephone numbers etc; • The nature of the expertise required; • The purpose of the report, a description of the matters to be investigated / assessed, the issues to be addressed and the identity of all the parties; • The statement of case and relevant witness statements / expert reports / other documents; • An outline programme for completion and delivery of the expert’s work; • Court hearing dates, timetabling, relevant deadlines, court information and whether there is a specific expert fee budget.

There’s no excuse for this oversight. The rules are absolutely clear - this is from the Family Proceedings Rules Part 25 for example (other similar rules are available): “(1). It is the duty of experts to help the court on matters within their expertise. (2). This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.” And yet… I have a vivid recollection of an eminent child psychologist giving evidence in front of a High Court Judge. She let slip that she was giving evidence “for” a local authority. When asked to summarise her duties and responsibilities as an expert witness, matters quickly unravelled and it became clear that she was unaware of her overriding duty to the court. Her evidence was disregarded by the Judge and there were dark rumblings about her fees.

In response, there are some expectations of the expert. In particular, they should confirm (without delay) whether they accept the instructions and, furthermore, they should also inform those instructing them (again, without delay) if:

On another topic, I’ve also encountered psychiatrists giving evidence about radiology and paediatricians opining about adult’s mental health. Remember the bit about “matters within their expertise”? Sadly, for them, the court remained unimpressed with their transferrable skills. EXPERT WITNESS JOURNAL

• The instructions are not acceptable because the work falls outside their expertise, there are unrealistic deadlines or that the instructions themselves are insufficiently clear. If they are insufficiently clear, the expert should request 25

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 26

clarification and may indicate that they are not prepared to act unless and until clear instructions are received;

still see reports lacking even the most basic elements of formatting. Single spaced, non-paginated, non-headed documents still appear. I even encountered a report hammered out on a portable typewriter a few years ago – it did little to convince me that the author was at the cutting edge of his profession. Spelling errors and grammatical glitches also serve to antagonise – grocers apostrophe’s (yes, I know) being a particular red rag to certain Judges.

• The instructions are insufficient to complete the work; • They become aware that they might not be able to fulfil any of the terms of appointment; • The instructions and/or work have placed them in conflict with their duties as an expert (for example where issues arise where an expert has previously given expert advice to a party);

All of the above may seem somewhat petty but, as a friend of mine (a Judge) once pointed out – if an expert can’t find the time to draft and present a properly formatted, grammatically correct, spellchecked document, it will almost always call into question the thoroughness of that expert’s methodology in the wider sense.

• They are not satisfied that they can comply with any orders that have been made. The first of these is, perhaps, the most interesting as a failure to clarify confusing or unrealistic instructions is a very common problem with inexperienced experts. Unfortunately, there is a temptation to accept, unquestioningly, that if a lawyer has drafted the LOI, they must know what they’re doing. Sadly (and I speak from bitter experience…) that is simply not the case. There is still, for example, a widespread confusion amongst lawyers between psychiatrists and psychologists – the first syllable seems to act like a hypnotic off switch (“It’s all the same stuff. Isn’t it?” is a verbatim quote). Clarifying instructions at this stage is much, much easier than drafting the “What I think I’m being asked…” report occasionally seen (and pulled apart) in court. So, moving on…

There is little excuse nowadays to get any of this wrong. Apart from the wonderful facility of word processing, there are model forms of experts’ reports easily available (for a small fee) from the Academy of Experts and the Expert Witness Institute which has separate templates complying with the relevant Civil, Family and Criminal Proceedings Rules. The Ministry of Justice has also produced a model template for medical reports. All have been designed to be “Judicial Friendly” – i.e. in a format familiar to Judges. So, put the kettle on. Again. Problems, problems Even for those who get the formalities right, things can still go badly wrong. A common problem is a failure to distinguish properly between fact and opinion or between fact, allegation and assumption.

The Report The written report is, of course, key to all that follows in the evidential process. It is the first (and best) opportunity to impress the Judge and to get him (or her) “onside” from the start. The good report can act as the single greatest disincentive to potential cross-examiners – one government agency that I’ve conducted training with has reported a 90% drop in court appearances, just by improving the quality of its written evidence.

If material facts are in dispute, an expert should express separate opinions on each competing hypothesis. I once encountered an expert who produced a report damning the parenting of a mother which was based entirely upon an unproved (and unprovable) allegation made against the mother in very questionable circumstances. Her failure to acknowledge this or even consider an alternative rendered her evidence worthless in the decision making exercise.

All a good report has to do, therefore, is provide a concise, direct and well considered opinion focussing on the relevant matters in question. It must comply with the rules and have a logical structure. It should be set out so as to be “free standing” – a neutral reader should, just by reading the report, be able to see the key issues and relevant evidence in the case as well as gaining an understanding of the logic and range of any opinion given. Simple, isn’t it? Really? Well…

Other difficulties are encountered with experts who seem determined to go “off-piste” with their opinions – not just venturing outside their area of expertise but simply ignoring the LOI and writing what they really want to write. I’ve seen one (submitted) report that actually said, “What I think you are really asking is…” There is, occasionally, a report that is meticulous in its format, approach, methodology and analysis but comes with an opinion that has no, obvious, connection to the preceding part of the report. (Now, I like a surprise ending as much as the next person – but there are limits). Any opinions ventured have to

The poor report is (conversely) the quickest way to antagonise the Judge and get hostile potential cross-examiners rubbing their hands with glee. Remember the “Anne Robinson” example and shudder. As I’ve said before in this journal, it’s often the simple stuff that goes wrong. Astonishingly, courts EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 27

Make sure that opinions tie up with the analysis and the evidence - beware the surprise ending – and above all, keep it focussed on your instructions. Don’t go off piste and make sure to remember the difference between fact, opinion and allegations. Oh, and there’s just one final thing that you have to do... Know. Your. Stuff. ■

be considered and explained in the context of the relevant evidence. Failure to do so will have even neophyte cross-examiners thinking of analogies involving barrels, guns and fish. Over recent years there has been a concerted effort on the part of the Judiciary to encourage experts (and professional witnesses for that matter) to restrict the verbiage used in reports. Quantity (to use a cliché) is not the same as quality. Gone are the days of the endlessly repetitious report based upon an irrelevant chronology starting sometime in the distant past. A friend of mine said such reports reminded him of a scene in the old comedy film “Airplane!” where the grizzled hero, summoned to save the doomed airliner bursts into control tower. “Tell me everything that happened!” he bellows. “Well,” comes the reply, “First the Earth cooled, then came the dinosaurs…”

Andrei Szerard has been a qualified barrister for over 25 years, specialising in family law at 3 Dr Johnson’s Buildings, Temple. He has practised in all areas of criminal and family law, conducting cases at the Old Bailey, the Court of Appeal and the High Court in London. He is also a highly popular and sought after Talking Life trainer, combining his extensive legal experience and knowledge with an innovative and stimulating training style. His courses on Expert Witness and Report Writing, Court Skills and Family Law have been delivered throughout England and Wales.

The report brandished in such contemptuous fashion that I mentioned at the start of this article was over 300 pages long, which was, as far as the Judge was concerned, at least 250 too many. “I spent all of Sunday reading…this!” she barked at the hapless consultant, his bow tie visibly beginning to droop. The emphasis now has to be upon a concise, focussed analysis of the relevant issues. Remember the poor Judge spending her free time ploughing through a morass of platitudes and needless repetition and have a little sympathy…

3rd September 2015 Andrei Szerard

Summary Report writing is not difficult. Really. There are so many resources available that it should be hard to get it wrong. Judges are on the side of the expert witnesses (no, honestly, they are). They just want them to be cogent and helpful. Judges want their own lives to be easier and their professional lives simpler (don’t we all?). A considered, precise, concise, authoritative expert report will always be treated with respect and appreciation by the Judge. All it takes is a little preparation and forethought. So, if you are an aspiring expert, read the Rules, Practice Directions and Guidance that I’ve referred to above. (Come and attend one of my courses if you really want – I’d love to see you...) Get the format right, use the templates available and give yourself time to produce the report – it’s not a document that should be dashed off just before a deadline like homework on the school bus. Good expert witnesses write and re-write and only send reports out when entirely happy with the contents. Remember that you may, one day, have to stand in court and answer questions from someone like me.

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 28

The Expert Witness in Adjudication by Murray Armes FCIArb whether experts are required at all and if they are, whether the role is the same or different, and whether they are appointed by one of the parties or by the adjudicator.

When it was introduced in 1998, adjudication was intended to be a quick and cheap method of dispute resolution to help cash strapped contractors and subcontractors avoid insolvency. Since then, because domestic adjudication operates within the legal framework and is therefore the subject of a good deal of case law, the process has become increasingly legalistic and its popularity has led to more complex disputes being referred than was probably ever envisaged when the process was conceived by Latham. Adjudication is now used not only for straightforward disputes but for some that are technically complex and which cannot be resolved within the prescribed twenty eight day period.

Although not directly relevant to adjudication, the Pre-Action protocol requirement of litigation for experts to be appointed to give opinion on the performance of a professional in negligence cases must surely apply to adjudication if the process is to have any credibility. A question arises if no such expert evidence is provided whether an adjudicator should request that it is(2). Although adjudication may never have been intended as a means to resolve complex technical or negligence cases, the reality is that this is exactly how some parties are using it and therefore the use of experts in adjudication is here to stay and possibly set to increase.

Despite critics asserting that adjudication is not a suitable forum for the resolution of complex disputes and in particular, professional negligence cases, many are being referred to adjudication. Technical expert witnesses are used in order to demystify complex issues and to explain those issues to the tribunal, be it a judge, arbitrator(s) or an adjudicator. Although such instructions have become almost universal in court and arbitration cases, the use of experts has not always been the norm in adjudication and the question arises as to EXPERT WITNESS JOURNAL

If party appointed, the expertâ&#x20AC;&#x2122;s services will be similar to those in litigation or arbitration, except much depends on which party the expert is instructed by. If the instruction originates from the procedure where there are no formal rules for the referring party then the expert may be required to 28

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 29

act initially in an advisory capacity, exactly as in litigation, and then to produce an expert report. The process gives the referring party’s expert the time to fully carry out instructions. If instructed by the responding party, there is likely to be much less time(3) and therefore the role is usually one of reacting to the referral and any expert reports produced in support of it. The expert instructed by a responding party may well have very little time to get to grips with the facts and issues and to produce an expert report. This could put the expert in the position of being unable to properly investigate all the facts of the case at hand and therefore forced to rely heavily on the evidence produced by the party instructing the expert. Depending on the quality of that evidence, the expert may face the prospect of working with evidence that does not provide a complete picture of the facts.

face value. There is also usually no time for the exchange of expert reports during adjudication proceedings. This may be a particular problem for the expert appointed by the referring party because the first time they will see the opposing party’s case and expert report, is when the referral is served. Whereas under the CPR the expert’s primary duty is to assist the tribunal, there is no such mandatory obligation in adjudication, although in my view there should be no difference and the experts should aim to assist the resolution of the dispute by assisting the adjudicator. Unlike reports produced under the CPR(6), expert reports produced for adjudication do not have to include a signed declaration, although in common with factual witness statements, they often include a short statement of truth. My own experience suggests that even experienced and well established experts are more willing to take diametrically opposing views in a way they might not so obviously do in litigation. The short timetable, at least for the respondent, is unlikely to help and the lack of formality and the private nature of adjudication means that a party appointed expert that has strayed into advocacy or worse still, has obviously taken on the role of hired gun - will be shielded from the possibility of public criticism (and sanctions) a judge may deliver but which an adjudicator is not empowered (or advised) to do.

In most adjudications, the only opportunity an expert has to explain their opinion is in the report produced for the adjudication and it takes on a much more crucial role when the adjudicator decides not to hold a meeting where the question arises as to how much weight the adjudicator should give to the expert’s report. When writing the report the expert must remember that the adjudicator is also under pressure, so it should clearly and concisely tell the story, set out clear reasons behind opinions, and ensure that any documents referred to are attached and clearly cross referenced in the text. If a clear and concise report is good practice in litigation it is essential in adjudication and if written well, it can assist the adjudicator in deciding the dispute. Although the report is often produced under pressure, the expert should guard against advocating the instructing party’s case and straying into the territory of hired gun, which can be easy to do when producing a report quickly and sometimes with limited access to evidence. In my view, despite there being a possible temptation to be overly bullish about a party’s case; a report that is objective and obviously neutral is more likely to be more persuasive.

This could leave the adjudicator with a dilemma as to just how much reliance and weight should be attributed to a party appointed expert’s report, which might only be resolved by holding a meeting to test the evidence, something I have had experience of myself as an adjudicator on a number of occasions when trying to work out which of two diametrically opposing views to choose between and which party’s evidence to prefer. Should an expert report prepared for adjudication include a declaration? In my view all reports should include at least a statement of truth, and established and reputable experts should have no difficulty in signing an abbreviated version of the declaration, along the lines of that suggested by RICS(7) (no matter which form of dispute resolution the expert is working under). If nothing else, inclusion of that might remind the expert of what should sensibly be its ultimate duty: to assist the tribunal. Unfortunately, even when such declarations are provided, it does not always mean the party appointed experts will necessarily act in the same way they would in court proceedings and the more rough and ready nature of adjudication, means this is not always possible even if the experts have tried to do their best in the time available.

Party appointed experts appointed in support of adjudication proceedings, are not subject to the Civil Procedure Rules (CPR) or other protocols as they are when instructed in connection with litigation or arbitration. Adjudication is a much less formal procedure where there are no formal rules for experts, other than those imposed by professional bodies(4). A recent survey conducted by the Society of Construction Law (5), suggested that in adjudication there is not always a clear boundary between independent expert evidence and that of an advocate. This is a difficulty that might arise out of lack of time, where the expert instructed on behalf of the responding party will be faced with a short timetable to produce a report and may have little option but to take the referring party’s evidence at EXPERT WITNESS JOURNAL

When faced with highly conflicting expert evidence in adjudication, the adjudicator has the power to order a meeting(8). Provided the adjudicator has a good grasp of the opposing party’s submissions, careful 29

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 30

questioning of the experts can be very helpful in testing each of the opposing expert’s opinions and conclusions. Although some adjudicators allow it, cross examination of experts in adjudication is rare and the procedure is much more akin to ‘hot tubbing’ or witness conferencing as it is more formally known. As an adjudicator I often find it very helpful to engage in what is often a conversation with the opposing experts on the various technical matters. This process has been successfully used in court and arbitration hearings and although an adjudication meeting is different and not as formal as the principles of expert evidence given under CPR 35, it should still guide the behaviour of the experts and parties.

Faced with the scenarios above, the adjudicator normally has the power to appoint their own expert or assessor with the agreement of the parties (11). The role of the expert assessor in this case is to review the evidence of both parties and to assist the adjudicator in weighing the evidence to enable the decision to be made. The timetable of a typical adjudication does not permit the experts to meet to see if the issues in dispute can be agreed on or narrowed down. A question arises as to whether the adjudicator can hold meetings with the party appointed experts or whether the tribunal appointed expert might take on that role. If the adjudicator meets the experts, this needs to be carefully arranged with the agreement of the parties and the difficulties that might arise, should the meeting be perceived as mediation,(12) need to be borne in mind(13). It is possible, if the parties agree, and time permits, for the expert assessor to meet the party appointed experts and in that way help to narrow the issues. However, that process needs to be carefully controlled and meetings need to be carefully managed to avoid any allegations of breach of natural justice later in the process. Importantly, both parties must agree to the process (14) . Of course any report produced by the assessor should be provided to the parties and time will need to be allowed for this.

Normally adjudicators are selected for their expertise on the matter in dispute, but sometimes it is not always possible to nominate an adjudicator who has all the expertise necessary to understand all of the technical issues. Ordinarily, if party appointed experts are giving truly independent advice, there is then usually at least some common ground. Even if the adjudicator is not directly experienced in all the technical matters it is possible to weigh the evidence and choose which is preferable. In adjudication, though, as we have seen above, the expert evidence is not always of the same quality that would be expected in arbitration or litigation. Sometimes the matters are so technical and the expert opinions so far apart that it is not easy to decide which evidence the adjudicator should prefer. In some cases, the ‘truth’ may comprise a hybrid of both experts’ evidence, neither of them being entirely persuasive.

So far we have considered domestic adjudication in the UK. Of course other jurisdictions have their own statutory adjudication schemes but it is outside the scope of this article to review the role of the expert in adjudication proceedings in those countries. It is, however, worth spending a little time to consider the role of experts in what I have termed ‘international adjudication’, more commonly called the dispute board. The primary function of the dispute board is to assist the parties in avoiding disputes but where that process has failed, to adjudicate on any dispute that arises. The process is similar to that of UK statutory adjudication but typically takes place over a longer period: 84 days versus 28 in the UK. The tribunal consists of one or three, or any larger odd number of board members.

Complex delay disputes often result in widely diverging expert reports, the conclusions of which may be based on differing methods of delay analysis. The adjudicator is most likely not a delay expert and is then faced with a dilemma in choosing which evidence to prefer. Of course the adjudicator has the power to simply decide which of the experts’ evidence is preferable(9) and continue to make a decision based on that. However, this ‘sudden death’ scenario could result in real injustice and could mean the resistance to the enforcement of the decision by that aggrieved party.

The parties in dispute may appoint technical experts, although the DB procedures normally encourage the participation of the technical staff on side to particulate rather than lawyers, so the parties may effectively produce their own expert evidence, although it may not have the advantage of being truly impartial. Just like UK statutory adjudication, none of the procedures I am aware of provide any protocols for the use or behaviour of experts in dispute board proceedings. Everything above applies equally to party appointed experts in DB proceedings so the experts should aim to be truly independent and declare that as such.

Alternatively, the adjudicator could decide which parts of the opposing experts' evidence they prefer and make a decision on that. That is a perfectly acceptable way to proceed but may not be easy or even possible to do, especially in our hypothetical delay case. Adjudicators are sometimes appointed on the basis of their own technical skills and if they have the necessary skills and experience, they can formulate their own analysis. However, they have to be careful to put that analysis to the parties for comment or face possible problems with enforcement of the decision (10). EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 31

The Chartered Institute of Arbitrators produces a ‘Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration’(15) in which Article 4.1 states: ‘An expert’s opinion shall be impartial, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any Party’. Of course whilst an international arbitration may take place over months or years, and although the dispute procedures may seem more relaxed than those for UK adjudication, nonetheless giving evidence in a procedure that lasts around 84 days can still be quite pressurised, if not quite so as when it has to be done in 28! In Article 8.1(a) the expert declares that its duty is to assist the tribunal. The ‘IBA Rules on the Taking of Evidence in Commercial Arbitration’ also offer some guidance under Article 5. Although these two documents were produced for use with international arbitrations, I see no reason why their sensible rules should not be adopted for dispute boards too.

without a change in the statute, the process will continue to be used because it is quicker and cheaper than litigation. As for adjudicator appointed assessors, no single adjudicator is likely to have all the specialist expertise required to decide complex issues of delay or quantum and where the party appointed experts have widely divergent views, it will be advantageous to agree with the parties on the appointment of an expert assessor to assist the adjudicator in making its decision. Despite its less formal procedures, in order for expert evidence to have credibility in domestic adjudication, the principles set out in CPR 35 should always underpin the evidence given, whether written or oral. Similarly in international dispute board procedures the principles from one of the international protocols for international arbitration should be the basis for the giving of evidence. In the absence of party agreement, the adjudication tribunal may not have the powers to insist that such standards are used but ultimately, if expert evidence is to be of the high standard it requires to be, the matter lies with the experts themselves to ensure that their work is compliant with such standards and for adjudicators to give greater weight to evidence that does so. ¶

The advantage of a dispute board comprised of three or more members is that the board can embody several disciplines, a luxury not afforded to the single adjudicator in UK statutory procedures, so the tribunal itself (or at least one of its members) may have all the expertise needed to understand complex technical or legal issues. That might not always be the case and also in the case of a one man dispute board, the tribunal is normally empowered to appoint experts or assessors to assist it in matters outside the expertise of the DB members(16). The only real issue with this is likely to be agreeing the cost of the tribunal appointed expert with the parties. There are no published protocols for tribunal appointed experts in DB proceedings but Article 6 of the ‘IBA Rules on the Taking of Evidence in Commercial Arbitration’, provides useful guidance regarding tribunal appointed experts, although some of the procedures are very formal(17) and do not always lend themselves to the much less formal dispute board procedures. Nonetheless, with some editing, they are good basis on which to start.

References 1, Although not necessarily, see ACD (Landscape Architects) Ltd v Overall and another [2012] EWHC 100 (TCC) 2, Just as in litigation where the court expects expert evidence to be served, see Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 3, The process may allow as little as just a few days for the respondent to serve a response, although adjudicators may extend that time, particularly if the case is complex 4, Such as the RICS practice note on surveyors acting as expert witnesses 5, Review of Experts Evidence, a consultation carried out by the Society of Constriction Law and headed by Her Honour Frances Kirkham CBE

Adjudication is not without its critics, especially those that consider the increasing complexity of disputes being referred, the resultant increasing time it takes to get a decision and the increasing costs involved which mean the procedure has become more akin to arbitration. However, it is still very popular with users and that trend is set to continue in the near future. The use of party appointed technical experts is also set to continue, although the task for the referring party’s expert is always going to be a more difficult one. Experts are almost always required to give opinion on negligence cases, even in adjudication. The uneven playing field that is sometimes caused is a good reason to be concerned about the suitability of adjudication for that type of dispute. Nonetheless EXPERT WITNESS JOURNAL

6, CPR 35 Rules 3.2(9) and 3.3 7, Surveyors Acting As Expert Witnesses. 4th edition, 2014 8, The Scheme for Construction Contracts, Part 1, Clause 13(c) 9, The Scheme for Construction Contracts, Part 1, Clause 13 10,Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597 11, The Scheme for Construction Contracts, Part 1, Clause 13(f) 12, Glencot v Ben Barrett Ltd [2001] EWHC Technology 15

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 32

CIArb supports the promotion, facilitation and development of all forms of private dispute resolution and provides lawyers and other professionals with prestigious qualifications and training, demonstrating excellence in ADR. www.ciarb.org

13, Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597 14, Try Construction Limited v Eton Town House Group Limited [2003] EWHC 60 (TCC) 15, Available at: https://www.ciarb.org/docs/default-source /practice-guidelines-protocols-and-rules/the-use-of-partyappointed-experts.pdf?sfvrsn=2

Are you interested in doing ADR training with the Chartered Institute of Arbitrators? If so please call CIArbâ&#x20AC;&#x2122;s Education & Training team on +44 (0)2074217439 or email education@ciarb.org

16, For example FIDIC Procedural Rule 8(d) and Sub Clause 20.2 17, In particular Article 6.3 where the Tribunal Appointed expert has the power to request information from the Parties.

Murray Armes is a Fellow of the Chartered Institute of Arbitrators and Managing Director of Sense Studio Limited. He is a construction industry dispute resolution expert who has worked on disputes in the industry all over the world. He is a Chartered Architect, Chartered Arbitrator, Adjudicator, Expert Witness, Dispute Board Member and accredited Mediator. The Chartered Institute of Arbitrators (CIArb) is a global professional membership organisation representing the interests of alternative dispute resolution (ADR) practitioners worldwide. With 14,000 members located in 133 countries,

Mr William Stuart Hislop

Dr Norman Wallace

BDS MBChB FRCSEd FFSTEd FDSRCSEd FDSRCPS

Independent Expert General Practitioner BSc, MBChB, MRCGP

Consultant Oral and Maxillofacial / Head and Neck Surgeon

Dr Wallace was a Principal in General Practice from 1980 to 2011. He has wide clinical experience and was Senior Partner in an eight doctor practice and a Trainer from 1984.

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.

(Whinpark Medical Centre - www.whinpark.org)

He has an interest in medico-legal matters having previously been a police surgeon with Lothian and Borders police force for nine years. He gives independent expert opinions in cases where there is alleged medical negligence and has helped the Procurator Fiscal Service investigate sudden deaths by providing independent GP reports and giving evidence at Fatal Accident Inquiries.

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. Mr Hislop is currently carrying out approximately thirty medico-legal reports per year for both defence and prosecution.

20 Craigs Bank, Edinburgh EH12 8HD Tel: 0131 334 8833 Mob: 07800 634 733 Email: normanwallace@btopenworld.com

EXPERT WITNESS JOURNAL

T: 01563 827 488 M: 07703 578 136 E: stuarthislop@supanet.com 44 Dundonald Road, Kilmarnock, Ayrshire KA1 1RZ

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 33

Dr Asef Zafar A GP Medico-legal Profile and Opinions on the MedCo Changes Dr Zafar works with both solicitors and medical bookings agencies and has a vast experience in report writing. This experience in report writing is complemented by intensive industry-specific training courses with Bond Solon and CertMR to ensure that all his reports are produced to an extremely high standard. This training also focusses on the necessary skillset to provide confident and precise facts and opinions when called to give evidence in court. He holds a team of dedicated secretaries to maintain his diaries and to book in clients. This team of secretaries is also responsible for making Dr Zafarâ&#x20AC;&#x2122;s clinics run smoothly by ensuring that all the clientâ&#x20AC;&#x2122;s details are received and entered into the system, phoning all of the clients before a clinic and making sure that they know when and where the appointment will be held (in addition to the appointment letter that each client is sent) and giving directions to ensure that all clients attend on time. The team of secretaries is always ready to help clients with any queries that they may have, starting at 8am on a clinic day to ensure that anyone lost before the clinic can receive directions and finishing at 7pm most days to ensure that directions can be given to people who work in the day. Dr Zafar has noticed a significant positive impact in attendance since the secretarial team has started to

Dr Asef Zafar is a GP medico-legal expert currently working across the accident medical and clinical malpractice industry. General Practice (GP) Expert Witnesses are tasked with writing reports for court cases and pre-court discussions. As a GP expert witness Dr Zafar is flexible in his skillset and abilities, being able to write detailed reports on soft tissue injuries, recovery times and the related psychological impacts. He performs examinations in his many local venues and normally turns around the report the same day. He regularly holds each of his venues across the South-East of England and sees several thousand clients a year in his different clinics. This large inflow of clients and a background of 20 years as a general practitioner allows Dr Zafar to hold experience in many different types of injuries and the different mechanisms at their causes. Dr Zafar regularly sees clients with a wide mix of varied symptoms, from complex whiplash injuries to simple lacerations, salon-negligent burns to needle-stick injuries and much more. This ensures that Dr Zafar stays on top of the regular changes that happen throughout the industry and that he holds the latest knowledge on how long each injury is likely to last. EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 34

Alongside prisons, Dr Zafar has also spent time working in Hospitals, GP Practices and on Army bases. This has allowed him a detailed view of the National Health System, including the places where resources and abilities may be stressed. This in-depth view of the different aspects of the Medical industry as a whole has given Dr Zafar a great deal of understanding of the areas in which a patient may have been given under-satisfactory care. This experience is the background that he draws from when producing reports for his Medical Negligence cases.

telephone clients. The clients that do not answer their telephones to confirm their attendance are also noted to be the least likely to attend. Patients arrive at the venue to be greeted by the doctor’s full time clinic co-ordinator, who takes the clients through to the waiting room and shows them to the doctor at their appointment time. Dr Zafar’s venues are all based in and around the South-East of England. This gives clients a wide choice of locally available venues and ensures that most patients are happy and able to attend. He currently holds venues in the following areas: East Ham (London), Watford, High Wycombe, Crawley, Tunbridge Wells, Southampton, Chelmsford, Southend, Colchester, Ipswich, Norwich, Cambridge, Brighton and Barking (London). These venues are all held at least once a month and are carefully selected, with dedicated waiting rooms and private but comfortable examination rooms. Where possible Dr Zafar chooses venues with on-site parking, but obviously in some of the town-centre venues this is sometimes unobtainable. Dr Zafar always makes sure that at the one or two venues where parking is not available, there is public parking available nearby. Dr Zafar employs a team of secretaries to help clients find the venues and they will often try to make contact with the client beforehand to advise them of the nearest car park. Where a patient cannot attend an appointment, the doctor can give quotes for a home/prison visit.

Medical malpractice is a busy area of the medico-legal field; supplying the doctor with interesting cases which often contain more than meets the eye. These cases are often won or lost on the quality of the doctor-in-question’s notes, with this being a large factor in the review of the case. Dr Zafar’s reports on Medical malpractice take the standpoint of an ‘ordinary GP’, looking at what should and would have been done by another doctor had they been faced with the same decisions. This type of report often focusses heavily on the patient’s psychological state of mind and how the accident has affected them through its long term impacts. As a GP Expert witness, Dr Zafar has been working through the recent MedCo changes to the industry. This wide sweeping series of changes was kick-started in April this year with an aim to improve medical reporting and tackle fraud throughout the medicolegal industry. These changes started with a rush for many medical experts and reporting agencies to sign

Home visits rely on one of Dr Zafar’s main skillsets, his impeccable bedside manner and consistent ability to provide a sense of comfort and ease amongst patients. He is able to examine the client in the comfort of their own home and instil a sense of calm amongst his patients; this calming influence can often be seen through the reports as a calmer patient often tends to remember key details that are often lost in stressful moments.

Dr Asef Zafar

General Practitioner and Medico-legal Expert MBBS, MRCGP Dr Zafar is an English trained, GMC registered expert witness. He currently works with various reputable medico-legal agencies and solicitors throughout the UK. He has successfully passed the Bond Solon 5 day training course on Expert Witness Report Writing and has a certiﬁcate in Whiplash Disorders (CertMR Part 2).

Prison Accidents occur more often than some may think and Dr Zafar rarely goes a month without seeing one or two of these clients. This can cause quite an impact to his day, as often he will wait in the prison reception for a few hours just to see the client for just under an hour. These visits regularly produce some of Dr Zafar’s most difficult cases, with symptoms that could be permanent and prisoners with an already low mood being subjected to further anxieties and stresses. Dr Zafar has spent some time as a Locum General Practitioner working in Prisons, allowing him a great deal of insight into how the health care system works inside prisons, where the possibility for an oversight can occur and how best to treat a patient with the sometimes limited resources available. This has also allowed him to comment upon and write several medical negligence reports set in the prison setting. EXPERT WITNESS JOURNAL

Dr Zafar has experience with the following medico-legal aspects: - Both High and Low speed impact claims, - Whiplash injuries, - Soft Tissue injuries, - Psychological injuries, - Paediatric injuries, - Injuries to pregnant women, - Injuries sustained in the workplace, - Injuries sustained through malpractice/negligence in beauty salons, - Injuries sustained in road trafﬁc accidents or as pedestrians, - Injuries caused by direct trauma and by seatbelts, - Injuries sustained on bicycles and motorcycles, - Dental injuries and much more... Nearly all of his medico-legal reports are turned around the same day, and medical records are normally reviewed within ﬁrst 7 days of receipt. UK Doctors Ltd Ark House,15-17 Exchange Road, Watford WD18 0JD Tel: 01923 224 929 Email: admin@uk-doctors.com Web: www.uk-doctors.org.uk Medico-Legal Venues Below is a list of his medico-legal venues. East London,Watford, High Wycombe, Crawley,Tunbridge Wells, Southampton, Chelmsford, Southend On Sea, Colchester, Ipswich, Norwich & Cambridge

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 35

more risk as they are now being examined by a doctor who the solicitors have not previously vetted. This twist of changes has obviously affected some parties more favourably than others. This has the potential to improve somewhat however as MedCo has previously expressed a desire to internally vet each expert to assure their consistent quality.

up and register. The MedCo system has been met with some dismayed complaints, following delays and a lack of explanation of many of the features. Through the MedCo system, client cases are allocated to a list of randomly selected experts and agencies, for the instructing party to make the final choice. This in practice has seen a shake-up of the current system, with larger agencies immediately noting a drop in instructions that took several weeks to start to even out. Smaller agencies however seemed to take a boost in instructions during this time, with many bursting forth with instructions and requests for terms of contracts. This sudden instability across the positions of the medical agencies was initially a little shocking for Dr Zafar and his company, but his mix of venues and consistent reputation for quality has helped him to maintain a comfortable level of instructions as the market continues to re-settle into its new position. One noticeable feature of the new MedCo system is the influx in Direct Expert instructions. These instructions -which are notable for the solicitor instructing MedCo registered experts directly- seem to be consistently on the rise.

So as large agencies are shrinking and small agencies are on the up, direct experts are being given their fair time to shine. As a choice in a completely fair market they seem to be growing in consumer confidence, a decision helped no doubt by the fact that many experts’ names will be recognised as being on several of their past reports. This shake up was made with the intent of leaving fraudulent claims very little room to hide; Whether this has proved effective will need to be seen over the next few months and years, but for the time being it appears clear that now they have sailed over the majority of the early turbulence, MedCo is here to stay. With regards to future MedCo decisions however, it is unclear when they will come and in what order. There has been talk of instituting a vetting system for all experts, deciding a stance of action on the multiple MedCo agencies and streamlining the current instruction system, but without much more information released on these as yet. Small changes seem to be made to MedCo as and when they are deemed necessary; including the recent changes to allow solicitors to add multiple clients to a case so that linked cases can be seen together. This was becoming a readily apparent issue as patients were somewhat understandably refusing to be booked when their relatives were being booked elsewhere with another expert. Another recent change for the better is allowing solicitors to see direct experts full consulting addresses, targeting recent complaints about the systems confusing layout.

From the initial requests from some solicitors wanting to test the waters, Dr Zafar has seen a surge in confidence and satisfaction amongst Direct Instructed cases, with many solicitors coming back to instruct him with several other cases. Writing reports directly for solicitors is nothing new for Dr Zafar, who has been requested several times in the past to write these. What is quite new however, is the large names in the industry that are now coming through with requests for direct instructions; A sure sign that the industry and its changes have not yet stopped transforming into the new set roles that will ultimately come of them. This does however seem to suggest that now is the time of the Direct Instruction, with solicitors and law firms large and small seeking to do away with much of the indirect communication that seems to delay and confuse difficult cases. Dr Zafar returns most reports the same day as the medical, examination avoiding needless delays and waiting on case handlers to send on the same. This seems to be one of the more sought after features of Direct Instructions, as solicitors race to get their cases completed sooner and take on the next from the ever growing piles of instructions.

Dr Zafar is looking forward to what the future of the industry may hold. The MedCo shake up is an exciting prospect that could potentially lead to beneficial changes across the wider industry. With a bit of work and a little clearing up he believes that the system could be made to work in the future. The larger agencies that are currently struggling seem to be facing an even further uphill battle, as the good reputations and relationships that they have built up over the last few years are put under more stress than ever from the new regulations and working practices. Smaller agencies and direct expert instructions seem to have more potential to ride out the storm, but seem to be lacking an independent assurance of quality. In conclusion, Dr Zafar feels that whilst MedCo is here and now, the future regulations and reviews to come will be the true test of the industry’s future. ■

MedCo definitely brings its own spectrum of advantages and disadvantages to the several different types of users in the medico-legal market. For the law firms and solicitors it pushes a divider between them and their regular agencies. This obviously will ruffle a few feathers in the market, but pushes a distinct advantage to the smaller (2nd Tier) agencies who are now being considered for cases that would have otherwise been given to someone else. From the patient’s perspective however, this allows for a lot EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 36

Medico Legal Issues in Oncology by Professor Christopher Nutting, Consultant Clinical Oncologist Royal Marsden Hospital, Fulham Road London SW3 6JJ Despite over 15 years practicing as a Consultant Oncologist and over a decade of medico-legal clinical negligence reporting I still wonder what I might come across next when I open a solicitor’s bundle of medical notes for the first time. The reason for this is that the vast majority of every-day medicine is conducted within a safety envelope of normal clinical practice with relatively well demarcated boundaries. Rather like a ski piste where there are a few different ways to get down, but the edges are clearly marked and most people stay within those boundaries.

that very occasionally there may be something more sinister behind these common complaints. The National Institute for Clinical Excellence (NICE) publish guidance documents which list symptoms which should initiate an urgent hospital referral under the urgent referral for suspected cancer pathway, or “two week wait”. These guidelines stipulate which symptoms or combination of symptoms should lead a GP to refer, and usually they focus on persistent or worsening and unexplained symptoms over a given number of weeks. Patients who fulfil criteria for referral should be referred urgently as suspected cancer cases and have to be seen within 14 days by the hospital specialist. Experts in General Practice commenting on cancer cases often use the NICE guidelines to decide on breach of duty when considering the actions of General Practitioners in clinical negligence cases. Examples of the NICE guidance for head and neck cancer are shown in Table 1.

Clinical negligence however, usually represents a significant step outside the normal bounds of conventional medical practice and as with any off-piste adventure, the final outcome is unpredictable and a variety of outcomes, both good and bad are possible. Oncology is a common area for clinical negligence claims. Part of this is due to the increasing frequency of cancer in the UK population – 50% of our generation will be diagnosed with cancer in our lifetime. Fortunately advances in cancer treatment mean that over 50% of cancer patients can now expect to get cured of their disease, and others will live for many years, kept alive by new treatments.

In my experience, oncology clinical negligence cases fall into a number of distinct categories. The most common is delay in diagnosis. Typically it is alleged that a patient had a delay in diagnosis due to their perceived lack of attention from their GP or hospital specialist. This is a retrospective opinion formed when a cancer diagnosis is made weeks or months after the issue was first raised by the patient with their doctor. Initially an assessment of breach of duty is required, and this will need to be determined by a specialist expert in general practice. These reports often rely heavily on the compliance with NICE guidelines for referral for suspected cancer (see above). For allegations against hospital doctors an opinion from the appropriate medical specialty is required.

An increasing expectation by the public of their general practitioners and hospital specialists also plays a part. My area of clinical practice is in head and neck cancer – a term covering cancers arising in the mouth, throat, neck, voice box and thyroid gland. I also specialise in lung cancer. Both of these tumour types are difficult to diagnose in the early stages because they present with symptoms which are very prevalent in the general population due to other non-serious diseases. Head and neck cancer for example can present with some of the following symptoms: mouth ulcer, sore throat, ear ache, hoarse voice or swelling of lymph nodes in the neck. All of us have had these symptoms in our life time and usually they are caused by transient viral infections which are self limiting and settle after a few days or weeks. Similarly Lung cancer at its earliest stages presents with a persistent cough which is often normal in the heavy smokers who are at risk of this disease.

Causation opinion is usually the province of an oncologist who will try to analyse the staging and prognosis of the cancer at different time points relating to the case. Staging is a process which describes the extent of the cancer at any one point in time. The most detailed staging system is the Tumour, Node, Metastasis (TNM) system. To understand this it is important to have a little bit of knowledge about cancer biology. When a cancer develops in a particular organ it usually grows steadily in size. The size of the tumour is usually measured in centimetres, and usually it is the size of the primary tumour

General Practitioners deal with patients with these symptoms all the time and they have to keep in mind EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 37

which determines its T-stage, T1 representing the smallest size, and T2, T3, T4 representing progressively larger tumours. At some stage in tumour development, some cancer cells migrate from the primary tumour and metastasize (spread) to lymph nodes. These lymph nodes may swell up and the size of lymph nodes, or extent of lymph node spread is categorised by â&#x20AC;&#x153;Nâ&#x20AC;? in the TNM system. N0 represent no lymph node spread, and N1, N2, N3 represents progressively more extensive lymph node spread. The T and N categories are different for each cancer type and the definitions of these categories make up a substantial component of any oncology text book and exam. M stands for metastases (spread of cancer) to other distant organs. Usually this is M0 if no metastases are present or M1 if they are present.

due to a chest infection. Six months later they saw another GP with the same persisting symptom and were referred to hospital where a lung cancer was diagnosed. I am often asked to comment on what stage the cancer would have been, and what the treatment and cure rate would have been had a diagnosis been made 6 months earlier. Of cause this is impossible to answer with accuracy, and we have to rely on data on average tumour growth rates which can vary widely between one patient and another and so may be controversial. Occasionally when reading the medical notes, I find that the patient had some form of scan or investigation performed prior to their cancer diagnosis and that can prove very helpful in providing data to retrospectively stage the cancer to a specific point in time.

Each TNM combination for any particular tumour type can be translated into a percentage cure rate or average survival time which is usually what the solicitor or Barrister requires for their causation argument. For common cancers such as lung cancer, colon cancer, prostate cancer and breast cancer the prognosis data are relatively accurate and can be provided for contemporary UK patients based on information from research studies or population databases. For example a T1AN0M0 lung cancer defines a lung tumour less than 2cm in size with no spread, and has a cure rate with surgery of 90%, compared to a stage T4N2M0 lung cancer which is a more advanced cancer with a cure rate of less than 20%. For rarer types of cancer, the literature may yield only small numbers of reported cases which reduces the accuracy of outcome statistics, or old studies of patients treated many years ago with old medical technologies. This sometimes causes problems if data used to provide causation evidence prove controversial to the court.

One regrettable but surprisingly common version of this scenario is the missed incidental finding. For example, a patient attended an accident and emergency department with a broken hip, and as part of a pre-operative assessment had a chest X-ray. The X-ray was briefly reviewed by the anaesthetist prior to performing a general anaesthetic, but was never reported formally. They recovered from their operation and a year later the patient was diagnosed with a lung cancer. A retrospective review of the X-ray determined that the tumour was visible at a much smaller size a year before. Such cases are usually straight forward for the oncologist as TNM can be accurately determined at both time points and the prognosis at each time point calculated.

Evidence based on patients treated in research studies is often of the best quality, but has a potential difficulty in that these individuals entered into trials usually have a slightly better outcome than the average population due to selection of only the fittest patients to enter clinical trials, or the better treatments available in university departments compared to smaller cancer centres. Almost always, the staging of a cancer at the actual time of diagnosis is accurate, as the patient will have undergone extensive investigation including scans and other procedures which allow a full TNM and prognosis to be determined. What is much more difficult for the oncologist to determine is what size the tumour would have been at a date prior to the diagnosis. For example consider a situation of a patient who attended their GP on several occasions with a symptom of persistent cough and was reassured without investigation that it was EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 38

Government targets for cancer diagnosis and treatment have been very important in the NHS for the last decade. Patients suspected by their GP to have cancer must be seen within 14 days of referral and start treatment within 62 days. Patients diagnosed with cancer by other referral routes (not on the 14 day pathway) must start treatment within 31 days of a diagnosis and treatment pathway being agreed with the patient. Over 95% of cancer cases should be discussed at an appropriately appointed multi-disciplinarily team (MDT). Failure to achieve any of these government targets can be considered to be clinically negligent on the basis that no responsible body of specialists would accept not achieving these targets.

Mr Eric Freedlander BSc. (Hons.) MB, ChB, FRCS, FRCS (Plast.) Ed.

Consultant Plastic Surgeon I have over 20 years experience providing medico legal reports for both claimants' and defendants' solicitors in cases of personal injury and also in cases of alleged medical negligence. I have appeared as an expert witness in court on a number of occasions.

I have extensive experience in nearly all areas of my speciality including:

In my experience one of the most common causes of delays in starting treatment is due to transfer of care from one hospital to another, or referral from one department to another within the same hospital due to poor communication.

• Burns • Soft Tissue Injuries &Scarring • Hand Injuries

Finally, errors in treatment make up a minority of oncology clinical negligence cases. All oncology departments in the UK have strong clinical governance frameworks. This usually means that all treatments with radiation and chemotherapy are protocol based and have robust quality assurance procedures around their use. Chemotherapy prescriptions go through several layers of checking before their administration to patients and radiotherapy is similarly checked at several stages during planning and treatment. Nevertheless rare mistakes, usually though human error, are occasionally seen and can lead to damage to patients.

• Head & Neck Surgery • Cleft Surgery • Cosmetic Surgery

Tel: 0114 230 9160 Fax: 0114 230 9160 Mobile: 07702 339 930 Email: efreedlander@mac.com Claremont Hospital, 401 Sandygate Road, Sheffield, S. Yorks S10 5UB

Subscribe call 0161 834 0017 or Email: admin@expertwitness.co.uk

Table 1. 2015 NICE referral guidelines for head and neck cancer 1.8 Head and neck cancers Laryngeal cancer 1.8.1 Consider a suspected cancer pathway referral (for an appointment within 2 weeks) for laryngeal cancer in people aged 45 and over with: persistent unexplained hoarseness or an unexplained lump in the neck. Oral cancer 1.8.2 Consider a suspected cancer pathway referral (for an appointment within 2 weeks) for oral cancer in people with either: unexplained ulceration in the oral cavity lasting for more than 3 weeks or a persistent and unexplained lump in the neck. 1.8.3 Consider an urgent referral (for an appointment within 2 weeks) for assessment for possible oral cancer by a dentist in people who have either: a lump on the lip or in the oral cavity or a red or red and white patch in the oral cavity consistent with erythroplakia or erythroleukoplakia. 1.8.4 Consider a suspected cancer pathway referral by the dentist (for an appointment within 2 weeks) for oral cancer in people when assessed by a dentist as having either: a lump on the lip or in the oral cavity consistent with oral cancer or a red or red and white patch in the oral cavity consistent with erythroplakia or erythroleukoplakia. Thyroid cancer 1.8.5 Consider a suspected cancer pathway referral (for an appointment within 2 weeks) for thyroid cancer in people with an unexplained thyroid lump. EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 39

Two Oncology Case Reports by Dr John P Glees MD FRCR DMRT Consultant Radiotherapist and Oncologist, Honorary Senior Lecturer Dr John Glees is a Clinical Oncologist. He specialises in treating patients with all types of cancer. Using radiation therapy and chemotherapy and is also a specialist treating benign conditions with superficial radiation such as Dupuytren’s disease, a collagen disorder affecting the hands and fingers which if successfully treated in its early stages replaces the need of a Hand Surgeon. Dr Glees also provides medical legal opinions in patients with cancer and other conditions.

Her thyroid condition had only recently been diagnosed because she had presented with exophthalmos, tremor, weight loss and a palpably enlarged thyroid gland with a very raised serum thyroxine level. She told me she was expecting a prison sentence! I asked her why. She told me that the previous week she had been in front of a jury in the Crown Court at Southwark and had been found guilty of theft by the jury with a majority verdict. The Judge had told her to expect a prison sentence and she was to return to the Court to hear the sentence the following week.

Case one A female patient in her mid forties was referred for treatment of hyperthyroidism. She was thyrotoxic and was referred to me for consideration of treatment using radioactive iodine. I agreed that this was the treatment of choice.

I asked whether her Lawyer knew that she was suffering with an overactive thyroid and she said ‘no’. I explained to her that when one is suffering with thyrotoxicosis, one can have an episode of “thyrotoxic madness” in which one did things not normally done, for example stealing. I asked her what she had stolen and she told me she had befriended an old lady whom she had met in the street whilst out shopping and had been invited by this lady to her house for a cup of tea. She had subsequently been accused of stealing this lady’s valuable necklace. She told me that the old lady had given her the necklace as a present!

Her history, as in all patients, was of great interest to me. She told me she had a baby daughter aged under two who was currently in the Intensive Care Unit of a major London teaching Hospital suffering with fits and some brain damage. Her child was very ill and she feared for her daughter’s life. She told me that she was an unmarried mother and clinically my initial impression was that she was very thyrotoxic confirmed on the blood tests.

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 40

I asked for her permission to write to the Judge, whose name she knew, and to let him know that she was suffering with an acute thyrotoxicosis which had been unrecognised at the time of the theft and could have explained the reason that out of character she had taken the necklace. She agreed to this.

We waited anxiously for the hour to pass. The patient looked at me with glowing eyes, the woman from whom it was said she had stolen the necklace and all her relatives glowered at me with marked hostility apparent. I was a surprise witness called by the Judge himself to whom I had also given references of this condition of thyrotoxic madness as everyone was expecting a prison sentence to be passed.

I wrote to the Judge and two weeks later I got a telephone call from the Judge asking me to come and see him as a matter of urgency. I ask where should I come and he said that he had slipped his disc and was an inpatient in St Thomas’ Hospital in London and her Court case and sentencing had to be delayed until he was better.

When the Judge returned he thanked me for providing the Court with this new important evidence and again he admonished the defence team that this lady was ill and suffering from a condition possibly causative as to the charge of theft. “Imagine” he said “this is very grave. I could have passed a prison sentence on her and again I repeat a grave injustice could have occurred”.

He requested that I urgently visited him and I went to St Thomas’ Hospital to his bedside. He had a private room with a lovely view of the Houses of Parliament through the window. I told him about her thyroid condition and that bouts of so called “thyrotoxic madness” were not uncommon in this condition and this could perhaps explain the reason for the theft.

With that he banged the gavel on the desk and drew attention of the Court to his summing up and told everyone in Court to be quiet. He said that thanks to me an explanation to a crime occurring had been given and instead of prison he was recommending probation for 18 months. With that “all hell” broke out in the Court room with an ongoing shouting of the other side’s relatives. “Order, order” said the Judge. “Dr Glees, you are now excused. The Court is most grateful for your important evidence and we all owe you a great deal of thanks in alerting us to her condition and thus saving a gross injustice from occurring”.

The Judge became very excited to hear this and said it was of the utmost importance that I attend the Court proceedings as soon as he was discharged from Hospital. About six weeks later I was asked to attend Southwark Crown Court and was ushered in to be called forward by the Judge now dressed in all his regalia. He looked very different from when I last saw him at St Thomas’ Hospital especially now wearing a wig!

The Judge went on “let this be a lesson to all of you Lawyers in this Court room that you must be certain that you know full facts including relevant medical facts which should have been presented to me (the Judge) and to this Court. Had it not been that I had slipped my disc and that the sentencing had been postponed, I can only repeat that a grave injustice would have been carried out in the name of the Queen and the Court”.

After I had sworn on the Bible to tell the truth and nothing but the truth, the Judge admonished all the Lawyers and especially her defence Lawyer for knowing nothing of her medical condition. “Were it not for Dr Glees writing to me whilst I was recently recovering from a slipped disc operation at St Thomas’ Hospital, none of us would have been aware of her medical illness and it was highly likely that a miscarriage of justice would befall her”.

“Dr Glees you may go now”. “Thank you” I said to the Judge but I want to stay and hear the rest of the case and he said to me “certainly you can stay but we will only pay you for the morning session”. “I thought” said the Judge “that you would need to get back to your busy Clinic at the Hospital”. I told him that I had taken the day off especially to be present. “Very well” said the Judge “stay and keep quiet”.

He told the Court that he took this most seriously and was profoundly cross with all the Lawyers, who were then called to come up before him to the bench. The whole Court room was hushed and astounded by this turn of events. He then recommended an adjournment for one hour when he expected the Lawyers to have reviewed her case, taken into consideration what I had told the Court and return to him with the relevant literature references so that he could then proceed.

EXPERT WITNESS JOURNAL

Much to my amazement, the previous convictions which she had were read out (I had not been told that she had any). She had been accused and found 40

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 41

guilty of stealing money from Barclays Bank some years previously when she had worked as a counter clerk. At that time she had also been given probation in view of her circumstances.

it bled easily so she was sent for an urgent ultrasound and mammogram. Both these investigations confirmed cancer. She required a mastectomy and the cancer was now 10cm in diameter and the lymph nodes removed from the axilla were positive.

At the end of the proceedings I left the Court and carefully avoided the seething relatives of the lady whose necklace and some money she had stolen.

There was a significant 8-10 months delay in making this diagnosis. Having carefully read all her notes in great detail and the description of the findings of her nipple and areola, I was certain that they (the initial Doctors in the Breast Clinic) had missed the diagnosis of Paget’s disease of the nipple first described by Sir James Paget in 1879. This is a classic finding and both initial Consultant and Registrar missed it and were guilty of failing to give this patient proper and reasonable care.

The patient went on to make a full recovery following two courses of radioactive iodine and her thyroxine levels returned to normal range. She was also able to look after her child. Case 2 The second case is that I was asked to give an opinion on a 37 year old lady who had been referred by the GP to a Breast Clinic because she was concerned about a rash around her nipple and also blood staining as a result of the rash inside her bra.

Paget’s disease of the nipple is really a skin cancer, Pagetoid, affecting the areola of the breast but there is always an underlying breast cancer present, as was the case in this lady. The hallmark of Paget’s disease is the actual inflammatory like redness affecting the areola and nipple and there is crusting and when touched there may be bleeding.

She was seen in the Consultant’s Breast Clinic by a Registrar who took the history but unfortunately miscalculated or misunderstood her age. The Registrar thought she was 29 when in fact she was 37. The patient had complained of a rash like irritation over the areola area of the breast, the central part of which is the actual breast nipple. The areola is usually a little raised and a darker brown colour than the white appearing skin of the breast. The Registrar was of the opinion that the rash was significant but failed to make an adequate drawing or take a photograph. The Registrar also thought that she could feel a significant lymph node in the axilla. The patient was very anxious that she could have breast cancer because the rash had been present for nearly 18 months and the GP had eventually referred her for investigation at the Breast Clinic. The patient had requested that a mammogram be done.

I had sent a photograph of the appearance of Paget’s disease to the Lawyers which was used in evidence. The Medicolegal Team had to attend Court as the Hospital and in particular the Breast Clinic did not accept guilt. As far as I was concerned this lady’s case fell far short of that which is accepted as standard care and which should have been available to her in the specialised Breast Clinic.

The Registrar asked the Consultant, who was in an adjoining Clinic room, to give his opinion. The Consultant looked at the breast said “not breast cancer” and told the lady that a mammogram was not needed. When the patient asked again for a mammogram the Consultant told her that she was too young and did not fit within the protocol!

The delay in her case caused the cancer to spread into the lymph nodes and the bones and now unfortunately also to the brain. Sadly she will die prematurely.

The patient’s breast irritation continued and 8 months later she was again referred by her GP to the same Breast Clinic but seen by a different Consultant. The areola area was reddened and appeared infected and there was some crusting and EXPERT WITNESS JOURNAL

She also attended the Court hearing and she wanted to meet me and it was my pleasure to do so and I was 41

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 42

pleased to shake her hand and pleased to know that I was able to help in her case.

Dr Sikhar Sircar Consultant in Obstetrics and Gynaecology

The Judge found in our favour and she was awarded over a million pounds. This will help her family at least.

MBBS, MD, DFFP, MRCOG Dr Sikhar Sircar is a Consultant in Obstetrics and Gynaecology, at NHS Lanarkshire, Scotland. Working as an NHS consultant in a busy Maternity and Gynaecology division.

It was my medicolegal opinion that the 8 – 10 month delay in missing the diagnosis of breast cancer in a patient who already gave an 18 month history of symptoms affecting the breast when she saw her GP for the first time, was 50% causative in allowing the cancer to grow and spread to the lymph nodes and metastasise also to the bones, and now to the brain. Her GP had not recognised the significance of her symptoms that were affecting her breast and had treated her for a skin infection before she was actually referred to the Specialist Breast Clinic for the first time where her disease was again sadly not recognised as such, and now after a very significant delay in making the appropriate diagnosis, she is suffering with metastatic breast cancer and will die at an early age.

He has over 15 year’s clinical experience in Obstetrics and Gynaecology. With experience in risk management, clinical governance and Critical Incident Reporting. Experience/faculty in teaching and training for Foetal Monitoring in Labour, Birth Trauma, Obstetric Sphincter Injury, Minimal Access Surgery, Colposcopy and Gynaecological cancer. He has been involved in post graduate and under graduate teaching and training for Medical, Nursing and Midwifery staff. Dr Sircar continues his professional development in form of Audits, published papers including works on Gynaecological cancer, Colposcopy, Laparoscopy, and Audits in Obstetrics and Gynaecology, and attending relevant CPD accredited meetings. He also chairs the Obstetric Risk Management Group for the Trust. Contact: Tel: 01698 366 215 Mob: 07984 647 345 Email: s.ssircar@gmail.com Wishaw General Hospital 50 Netherton Street, Scotland ML2 0DP Area of work Scotland and Nationwide

Earlier recognition that she had breast cancer when she was first referred to the Specialist Clinic, may have saved her life. ■

Mr Gerry Jarvis Consultant in Obstetrics & Gynaecology BM, BCh (Univ. Oxford), FRCS (Edinburgh), FRCOG, Member of the Expert Witness Institute

Clinical negligence involving obstetric care, gynaecological surgery and female urinary incontinence. Experience in report writing and court appearance for over 20 years. Accepts instructions from both claimants and defendants. Contact: Mr G Jarvis Tel: 01491 412 111 Fax: 01491 412 121 Mobile: 07831 617 303 Email: gerryjarvis@hotmail.com Address: 10 Harley Street, London W1G 9PF

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 43

The Devil Can Be In The Detail – Litigation in Obstetrics and Gynaecology by Mr Matthew Long Medico-legal claims made for breach of duty and causation in the provision of care for women’s health issues and treatments are an important area of clinical negligence litigation. The NHS Litigation Authority’s review of “Ten Years of Maternity Claims” published in 2012 reported that obstetrics and gynaecology accounted for the second highest number of claims made to them. The greatest number of claims made was in “surgery” which included all surgical specialisms as well as orthopaedics. However, despite being second in the number of claims made, obstetrics and gynaecology gave the greatest value of claims paid out. During the 10 year period, over 13,000 claims were made with a total payout in excess of £5.2 billion of which 5,087 claims were in maternity alone with a total value of £3.1 billion.

All UK obstetric units hold regular review meetings of obstetric emergencies that focus on problematic deliveries, neonatal intensive care admissions, cesaerean section and CTG interpretation. These in house meetings review whether or not good practice has been adhered to and what lessons can be learned to be carried forward for the improvement of care offered. I have been involved in several hundred of these meetings over my 23 year obstetric career and incidents that would not have met a reasonable standard of care do occur relatively frequently. Particular issues relate to the progress of labour including the augmentation of labour with syntocinon; the interpretation of the CTG; the management of the second stage of labour with delivery of the baby and post partum haemorrhage, including obstetric trauma.

Analysis of the figures shows that the three commonest causes for a maternity related claim to be made were those relating to the management of labour, caesarean section and cerebral palsy with rates of 10.65%, 14.05% and 13.24% respectively. The claims for the management of labour and cerebral palsy contributed to 70% of the total overall cost of maternity claims.

Post partum haemorrhage (PPH) can be a life-threatening event with a very quick loss of a large volume of blood. This blood loss cannot only cause hypo-volaemic shock but also a condition called disseminated intravascular coagulation (DIC). In brief, this is where the blood clotting factors are activated to try to stop the bleeding but become consumed so that the blood looses its ability to clot and therefore promotes further blood loss. This is a very serious condition that can result in cardio vascular failure and death if not treated quickly. Although there is no specific volume of blood loss that triggers this, any loss greater than 1000mls increases the risk of it occurring. The active treatment of DIC is to replace the blood and its clotting factors that have been consumed with transfusions of various blood products. However, the best “treatment” is, of course, to avoid DIC occurring and stop the bleeding before it occurs.

The average birth rate in England and Wales over the 10 years reported was 550,000 per annum, which means that less than 0.1% of deliveries resulted in a claim being made. This seems surprisingly small given the nature of the events that can occur during pregnancy and, in particular, during the delivery of the baby. Thus, there are fewer claims being made than otherwise could be, especially considering that adverse events in labour and from the delivery are relatively common. This is also borne out by the fact that only 0.7% of incidents reported to the National Reporting and Learning System are legal claims. EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 44

From a clinical negligence point of view, this is highlighted in a case of PPH for which I was instructed to prepare an expert report. The bleeding occurred as a result of vaginal trauma during the delivery. The main area of trauma was at the upper part of the vagina and occurred during descent of the fetal head in the second stage of labour. This could not have been avoided and the management of the delivery of the baby and placenta was appropriate. However, immediately after delivery of the placenta there was brisk blood loss despite the uterus being well contracted. The registrar was called but did not attend until 22 minutes later. It was recorded that another member of the medical staff was called after 8 minutes but refused to attend. Shortly after the registrar arrived the patient showed signs of hypo-volaemic shock. It was another 25 minutes before any attempt was made to stop the bleeding from the vaginal tears at which point there were signs of DIC occurring.

abdomen but no active bleeding points were observed. My report stated that the laparoscopic procedure had been carried out to a reasonable standard and that the decision for the first laparotomy for the bleeding was appropriate. However, the amount of blood found at the first laparotomy performed of 400mls was far less than would have been anticipated from the drop in haemoglobin levels and at least a further 600mls of blood would have been expected to have been seen in the pelvic and abdominal cavities. The subsequent bleeding into the drain was purely this additional blood and if this had been recognized the patient would not have suffered the second laparotomy. The surgeons involved should have appreciated this, and I reported that the assessment of the findings at the initial laparotomy fell below that which would be reasonably expected. Again, the case settled. However, it must be stressed not all complications of obstetric and gynaecological care that occur are the result of clinical negligence. A number will be the result of unfortunate sequelae of a particularly difficult delivery of a baby or operative procedure, all of which have inherent risks. Where an elective procedure is planned, the communication of these potential complications to the patient prior to any intervention through the consent process is essential. These discussions, together with the type of any literature or web based information given, should be

The key point in my report was that in the case of a massive PPH then the time it took for the registrar to attend and attempt to identify the cause of and control the bleeding was below a standard that would normally be expected. This was coupled with the refusal of another member of staff to attend the patient despite this being an obstetric emergency. The additional blood loss during this time could have otherwise been reduced and the DIC prevented with the further blood loss associated with it. Other areas of the Claimantâ&#x20AC;&#x2122;s care including the delivery, and subsequent management of the DIC were appropriately dealt with. The case was settled with quantum taking into account the 4 days the Claimant spent ventilated in the intensive therapy unit and the post-traumatic stress disorder that followed.

Matthew Long MD, FRCOG

A further case of massive blood loss that I was instructed to report upon was one of post-operative haemorrhage. This followed an uncomplicated laparoscopic (minimal access or keyhole surgery) removal of an ovarian cyst. Following the procedure, the patient developed abdominal pain and signs of bleeding with a high pulse rate and reducing blood pressure. The haemoglobin level at that time compared with the pre-operative one indicated that approximately 1,000mls of blood would have been expected to have been lost. A laparotomy was performed through a transverse suprapubic incision where the area of bleeding was identified and secured. It was noted that 400mls of blood was in the pelvis and a drain was inserted into the pelvis. In the recovery area the drain had filled to 300mls and a second laparotomy was performed through a large midline incision on the assumption that further bleeding was occurring. At the second laparotomy, a further 300mls of blood was identified in the EXPERT WITNESS JOURNAL

Consultant Obstetrician, Gynaecologist & Mininmal Access Surgeon I have over 25 years experience in dealing with obstetric and gynaecological health issues. In addition to my clinical practice, I have had academic papers published in peer reviewed national and international medical journals. I act as a medico-legal expert in the field of clinical negligence and personal injury for both Claimant and Defendant in the following areas: The obstetric management of labour and delivery; Urinary incontinence & pelvic floor problems, including pelvic organ prolapse; Minimal access surgery including hysteroscopy, laparoscopy and treatments for menorrhagia; General gynaecology. I am fully compliant with the GMC and RCOG regulations on specialist registration and continuing education.

P. O. Box 302, Horley, Surrey RH6 9TB T: 01293 822 344 E: matthewlong@nhs.net

w: www.specialistgynaecologist.co.uk 44

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 45

clearly documented in the clinical records. Operative records should be detailed especially where something has occurred during the procedure that would not have normally been expected. From a medico-legal point of view this information can provide robust information in defending against a claim where it is alleged that the risks of the procedure were not adequately explained or where a complication of a procedure has occurred. The adage â&#x20AC;&#x153;if it is not documented it did not happenâ&#x20AC;? should be borne in mind as the expert will assume there was a deficiency in care as a result.

: $ 255.: % % $ %

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

Additionally, the medical expert investigating a claim should appreciate that just because he or she would have performed a procedure in a different way, that this does not mean that that there has been a breach of duty. It is widely accepted that there can be more than one way to manage some clinical situations and provided that the method used is that which would be reasonably expected from appropriately trained personnel in that discipline, then there has not been a breach of duty. â&#x2013;

.-2,8 5.0*5 B 27-* 8::.55

5272,*5 B .++2. (*7 -. "..:

527-* :87*5-6255.: ,86 ??? ?885*;<8718=;. ,86

':8580A 1*6+.:; 262<. ! )885*;<87 8=;. " (2.? $8*- 87-87 #

! '7-.:;<*7-270 8/ <1. :85. 8/ <1. @9.:< )2<7.;; '7-.:;<*7-270 8/ *55 :.5.>*7< 9:8,.-=:.; $.98:< ):2<270 %4255; 7;?.:270 #=.;<287; "*:< ":8/.;;287*5 78?5.-0. +252<A <8 .@<:*,< :.5.>*7< 27/8:6*<287 866=72,*<287 %4255; ":.;.7<*<287 %4255; )8=5- A8= 27;<:=,< : 255.: *0*27 )8=5- A8= :.,866.7<8 * ,855.*0=.

Subscribe call 0161 834 0017

@,.55.7<

88-

*2:

"88:

8 ,866.7<

.58?

or Email: admin@expertwitness.co.uk

Dr Elizabeth Soilleux Consultant Histopathologist

8 ",:,8 65,9

MA, MB, BChir, PhD, FRCPath, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)

659;3:(5: $;8.,65 05 8,(9: ,850( $;8.,8? # "

$ # $

Practising Consultant Haematopathologist and Autopsy Pathologist based in Oxford Honorary University Senior Clinical Lecturer and fellow of St Hugh's College, Oxford.

659;3:(5: ,5,8(3 $;8.,65 9;)97,*0(30905. 05 $;8.0*(3 !5*636.? )8,(9: (5+ )+6405(3 (5+ ,850( 9;8.,8? 05*3;+05. 0504(3 **,99 $;8.,8? 2,? /63, (5+ (33 $:65, $;8.,8?

Expertise in: Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology. Autopsy (post mortem) pathology

>7,80,5*,+ 05 (33 (97,*:9 6- )8,(9: +09,(9, )+6405(3 $;8.,8? (5+ *6473,> ,850( $;8.,8? (5? ?,(89 ,>7,80,5*, 05 :/, (99,994,5: (5+ 8,768:05. 6%8(;4( #,3(:,+ ,850(9 8,(9: %8(;4( )+6405(3 (5+ /,9: %8(;4( 65:(*: 89 $2055,8 "8(*:0*, (5(.,8 %,3

6) 4(03 7,:,8 9;,165,9 ):*655,*: *64 ',) === )8,(9:*3050* *6 ;2 %/, $64,8-0,+ 6970:(3 65+65 #6(+ (0+9:65, ,5:

EXPERT WITNESS JOURNAL

Contact: Tel: 01865 220535 Fax: 01865 220519 Mob: 07798 643879 Email: elizabeth.soilleux@ndcls.ox.ac.uk 3 Roman Road, Wheatley, Oxford OX33 1UU

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 46

Reviewing MedCo by By John van der Luit-Drummond An expert would probably have to be buried under an unscalable mountain of medico-legal reports not to know of the sweeping changes that are to affect the expert witness landscape.

directly from parties or through MRO’s with which they are registered. An IME is an expert that has only been registered by an MRO and can only be instructed by the agency that has registered them.

The government’s whiplash reform programme, designed to guarantee the independent diagnosis of soft tissue injuries and tackle the UK’s ‘compensation culture’, came into force on 6 April 2015 with a new system to facilitate the sourcing of medical reports.

Teething issues As with any new policy, however, teething issues and controversy are practically guaranteed, and those affecting MedCo have been well documented in the legal trade press.

MedCo, a non-profit making organisation, was born out of government policy. Comprised of an independent chair and eight board members drawn from the insurance, medical, and claimant sectors, MedCo has brought the Ministry of Justice’s (MoJ) Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTAs) to life.

In March, a group of northern-based claimant solicitors firms and their MROs threw a spanner into the works by launching a judicial review against the introduction of MedCo. The firms claimed that ministers failed to properly consult on its programme of reform and that its implementation was unfair on claimants who are now unable to consult with their solicitor over a choice of expert.

Its aim is to break any real or perceived financial links between commissioners of reports and experts and weed out unmeritorious claims. From April, experts, medical reporting organisations (MROs), and law firms have been required to register with MedCo so as to continue to provide or commission reports.

In addition, one of the country’s largest MROs launched a separate judicial review in May. Speed Medical – a tier-one MRO – is to argue in the High Court that MedCo’s system of allocating agencies is unnecessary, ineffective, and anti-competitive.

Experts are required to pay an annual registration fee of £150. Agencies are split into two categories, tier-one and tier-two, with the larger industry players paying a £75,000 annual fee, while small MROs pay £15,000. MROs that apply for tier-one status must have the ability to process at least 40,000 reports per year.

Concern was also raised after it was noted how a number of tier-one MROs had innovatively created multiple tier-two agencies in order to increase their chances of receiving instructions. The MoJ said such behaviour was not permitted as it had the potential to ‘put at risk the chances of existing MROs to compete for selection’, and also ran contrary to the policy objective of providing users with a range of seven ‘different’ MROs to choose from. The ministry also told Medco to crack down on such tier-one organisations through the use of an auditing process.

Victims of RTAs who bring low-value whiplash claims must now choose their medical expert from a randomly-generated list emanating from MedCo’s online portal. This list consists of seven individual experts, or one tier-one and six tier-two MROs. The implementation of MedCo undeniably represents a sea-change in the method of selecting medical experts in litigation. Likewise, the mandatory accreditation of expert witnesses, both direct medical experts (DMEs) and indirect medical experts (IMEs), has been introduced for the first time.

As a consequence of these issues, the minister of state for civil justice, Lord Faulks QC, announced in July that the government was to bring forward a planned review of MedCo, which had previously only been expected once six months’ worth of data was available to analyse. The minister said the public call for evidence would form a key part of the review process and that the MoJ would ‘specifically seek evidence on whether the

A DME is an expert that has registered themselves on the MedCo portal and can either take instructions EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 47

MedCo IT portal meets the government’s objectives’. The evidence provided would then be analysed to see whether changes need to be made to the portal or to the rules underpinning it.

their details removed from the system and will only be allowed to re-register upon gaining accreditation. ‘Medical Professionals need training and assessment to understand how to carry out this role as a medical expert. The GMC recognises in Good Medical Practice that this is role does differ from being a medical professional. With Medco now introducing mandatory training and accreditation they are making a statement that there is now no place for the amateur expert in RTA Whiplash cases. In the past there was nothing stopping a medical professional offering their services as an expert with no training or understanding of the role. This initiative will ensure that there is a benchmark standard set for anyone wanting to undertake this work and we should see an improved standard of medical reports produced. Also following Jones v Kaney there is an increased possibility of experts being sued for negligence and breach of contract.’ observes Mark Solon, managing director of Bond Solon and solicitor.

Biting back In September, MedCo finally showed its teeth by suspending a number of MROs for failing to provide proof of the required financial bond – £100,000 for tier-one and £20,000 for tier-two – to demonstrate the MRO has sufficient funds to pay medical experts – and warning law firms for breaches of its user agreement. ‘We are getting reports about concerns in the system, such as solicitors putting pressure on experts to change findings, to which we have issued warning notices and achieved positive results with people changing their behaviour accordingly. There will always be people who try to work around a new system. We are aware of these behaviours and are working to address issues of non-compliance,’ says MedCo’s independent chair, Lorraine Rogerson.

OPIL (online personal injury learning) Bond Solon has been approved by MedCo as one of its mandatory accredited training programmes. Its structured web-learning package consists of nine modules covering both clinical and legal content. The programme is to offer experts a user friendly, interactive learning experience focused on their objectives accessible over all devices, computers, tablets, and smartphones. Experts will be able to work through the programme in their own time, and at their own pace, anywhere in the world.

Pressed on whether or not the government’s review of MedCo after only three months of data was coming too soon, Rogerson says it is still too early to say whether or not the portal was working effectively. However, the former civil servant adds she is ‘encouraged’ at how the system had developed so far and that with ‘right resources and continued focus and determination’ she is sure it could do more. ‘It has really only just got off the ground,’ she admits. ‘But at a granular level we can see that the changes we have made are already casting a light on the sector.’ It has done what it was meant to do and has thrown up issues of policy for the MoJ to review.’

‘Bond Solon is a training company that has led the training for experts for over twenty years,’ adds Solon. ‘We have no vested interest in for example medical reporting agencies. We have developed a really first class training and assessment program for Medco and the whiplash. There are over 50 video interviews with leading clinical, engineering and legal experts that enhance the understanding of the technical self-study materials and abstracts. With on-going updates and discussion forums this is far more than just a training programme it is a resource site for any expert who produces whiplash reports.’

Rogerson adds her belief that potential for MedCo is only just starting to emerge: ‘This is the early stage of bringing a form of regulation to an unregulated environment. It is a new approach. Once you start, the full extent of the work required to alter behaviours becomes clear. It has thrown a lot of people from right across the sector together and asked them to get on with regulating the sector. Working groups on audits, operations and accreditation are making progress, with all represented parties working together to ensure all our processes are effective and robust.’

Expanded remit? Is there the possibility of MedCo’s remit expanding beyond soft tissue to other areas of expertise? Solon believes so: ‘Clearly if the new whiplash scheme works, there are many other areas in the law where the same principles could apply.

Mandatory training and accreditation Mandatory training, accreditation, and reaccreditation of experts will commence from January 2016 to ensure reports meet MedCo’s minimum quality standards.

‘The idea of accreditation for experts has been around for many years but has never really taken off. This has been primarily down to the expert market and areas of expertise being so broad. Organising discrete areas of litigation seems far more manageable and can allow for mandatory training and accreditation to be applied to specific areas of

All current experts will be allowed to register with MedCo before gaining accreditation, but any expert who is unable or unwilling to be accredited will have EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 48

Article kindly supplied by John van der Luit-Drummond is deputy editor of Solicitors Journal www.solicitorsjournal.com john.vanderluit@solicitorsjournal.co.uk

expertise. I am sure this that we will see other expert disciplines following this model in the future.’ Akhtar Khan, a consultant orthopaedic surgeon and a medical legal expert, also notes that the ‘potentially complex accreditation process’ is being implemented to provide first reports but not second.

OPIL Bond Solon, MedCo Approved Accredited Training Programme www.bondsolon.com/expert-witness/ medco-accreditation.aspx

‘It would seem reasonable to suggest the accreditation process should be encompassing all experts,’ he continues. ‘This is not to question the existing knowledge of consultants but to ensure they are familiar with the literature that has been used when the first report was compiled and to ensure that they are then expanding on the existing report based on their clinical expertise that has required the need for a re-instruction.’

• 50 recorded interviews with subject matter experts; • 300 cited references; • Self-study reading materials; • Assessment at the end of each module; • On-going updates with the latest research papers; • Discussion forums; • Contributions from over 30 leading soft tissue specialists, engineers and lawyers from across the UK and internationally including Arthur Croft, Michael Freeman, Michael Foy, Phillip Fagg, Matthew Avery and Jim Lennard; and

Khan adds: ‘It would seem appropriate that even reinstructions should also be randomised and this may reduce the need for defendants instructing their own expert.’ Of course, whether the reforms live up to government and industry expectations, and can be extended to other expert witness types, remains to be seen. Experts would do well to watch this space in the months to come. ■

•All experts will be automatically enrolled on the Bond Solon National Register of Certified Expert Witness.

Prof Charles M Court-Brown

Mr Angus Strover

Professor of Orthopaedic Trauma

Consultant Knee Surgeon

MD, FRCS Ed (Orth)

In 1988 Mr Strover founded the Droitwich Knee Clinic, the first private knee surgery clinic in the UK for treatment of knee disorders, where he is a Director and member of the board.

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.

Mr Strover has specialised in ligament reconstruction at the knee, meniscal transplantation, cartilage transplantation, knee a rthroplasty and patello-femoral conditions including patella alta, dislocation of the patello-femoral joint, the plica syndrome and a simple method of correcting patella alta. He has been a specialist in knee surgery from 1985 to retirement in 2011, he now concentrates on medico-legal cases where injuries to the knee joint or the lower limb are concerned.

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 8 books and over 150 papers on trauma and its treatment. He has extensive medico-legal experience and averages about 300 new instructions annually.

Contact: Prof C M Court-Brown Craigesk House, Lothianbridge EH22 4TP, Tel: 0131 660 4227 Email: ccb@courtbrown.com

EXPERT WITNESS JOURNAL

FRCS

United Surgical Services 64 Springfields, Bugle, Saint Austell PL26 8SJ Area of work Nationwide Tel: 01726 338 126 Mob: 07791 870 719 Email: angusstrover2014@gmail.com

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 49

phone:

0161 348 7843 0161 348 7844

PROF. PAUL TIPTON

email: web:

enquiries@drpaultipton.co.uk www.drpaultipton.co.uk/exper t-witness

EXPERT IN THE FIELD OF DENTISTRY

LOOKING FOR A DENTAL EXPERT WITNESS FOR A NEGLIGENCE CASE? Professor Paul Tipton is one of the UK’s leading dental expert witnesses. Regularly featured in the Top 20 most influential dentists in the UK (Dentistry magazine), he has extensive experience dealing with a range of negligence cases. In 1992 he was awarded the Diploma in General Dental Practice (DGDP) by the Royal College of Surgeons UK and became a specialist in Prosthodontics in 1999. He is currently President of the British Academy of Restorative Dentists (BARD) and visiting Professor at the City of London Dental School. With over 25 years experience in his field, he has trained more than 3,000 of the UK’s dentists and continues to be one of the most prominent figures in the industry and on the global speaking circuit. To secure Professor Tipton’s services, whether acting for defendant or claimant, please call today

EXPERT WITNESS JOURNAL

Professor Tipton’s commitment to clients: ● To deliver expert witness advice as a leading specialist in the field of dentistry in a timely, professional and concise manner. ●

To issue concise, accurate and clear reports to assist the courts with their decision.

●

To ensure communication is paramount throughout the process.

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 50

Areas in Orthopaedic Surgery Where Negligence has Occurred is Uncertain Particularly Around the Operation Itself by Mr. Ian Forster - Consultant Orthopaedic Surgeon MBBS, FRCS, FRCS(Ed) Consent A common area is around consent. Claimants often say they hadnâ&#x20AC;&#x2122;t discussed the details of an operation when the consent form suggests they had.

Wrong Site Surgery Clearly no one wants to operate on the wrong limb but it still happens, although rarely. It takes several people to be off their guard at the same time. There is no issue with liability here. Patients are often comforted to know that steps towards prevention have been undertaken.

This is always difficult. Some time ago a paper was published which looked at what patients understood after discussing the operation and taking consent. Simply after a full explanation the patients were asked to recall what they had been told. The answer was very little.

To avoid wrong site surgery in Orthopaedics there is a rule that all sites will be marked on the day of surgery preferably by the surgeon.At its simplest this an arrow in marker pen at the site of surgery so that it is visible in the operative field after draping. There are many checks in the anaesthetic room before anaesthesia and consent and marking are the first ones!

In the time before an operation when consent is usually taken or confirmed the anxiety of the situation makes it very difficult for patients. To this end the consent form has space to add in the aim of the operation and its benefits and possible complications.Some forms are specific to the operation and list all this in print form. As with any such form it is difficult to know whether this was all explained to the patient.

Some surgeons add the operation title to the mark along with their initials, whilst an extra check covers a wider area of the operative field. Despite all this, things can happen such as the anaesthetic technician putting the tourniquet on the wrong leg and everyone else assuming that its right.

However, this is only the form.Consent starts when the patient is first seen. At that time they would be listed for operation or sent for further tests. A full explanation should start then. If the patient is reviewed again further counselling should occur and by the time the form is signed a patient should be well versed in the details of their op. This usually makes the signing a formality and tends to reduce anxiety. I recently was asked to advise on a case where a two stage procedure was to be carried out. Each stage required a separate form but both were signed at the same time and countersigned immediately before each procedure. Ive never seen this before but I suppose it is logical since the time between each procedure was 6 weeks. Although the forms were clear the patient was adamant that she hadnâ&#x20AC;&#x2122;t understood what was being undertaken and that a realignment procedure to be performed at the second op was not explained to her although it was clearly written on the form. This is a very difficult legal area. EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 51

After such an event,whether or not there is litigation, there is a Serious Case Review carried out by the hospital to find out why the mistake happened and any recommendations as to avoidance in the future.

their activity. In the old days we put them all on aspirin but as this is not effective and there carries a significant risk of bleeding with anticoagulants so they tended to be given advice and possibly stockings. Thus whether care has not been satisfactory is difficult to determine.It has to be remembered that even with perfect prophylaxis there is a risk of DVT and pulmonary embolus. Pulmonary embolus can be fatal and DVT can lead to post-thrombotic syndrome with long term consequences for the patient.

Around the Operation DVTâ&#x20AC;&#x2122;s are a common source of disquiet amongst patients,particularly whether prophylaxis should be given. The area is often a subject of hospital protocol and is covered by NICE recommendations. Its important to realise that there are several types of prophylaxis, mechanical and chemical.

Infection is a major orthopaedic problem.If it is superficial it will settle easily but if deep in the joint it can be difficult to cure and be permanent,resulting in long term antibiotics or amputation.

Mechanical -anti-embolic stockings and foot/calf pumps Chemical - small doses of anticoagulant drugs either by injection or by mouth.

For this reason most orthopaedic operations with the exception of arthroscopy are covered by prophylactic antibiotics. The common drug would be a cephalosporin. This would usually be given on induction of anaesthesia, 15mins prior to elevation of the tourniquet, ( if the tourniquet is inflated neither blood nor antibiotic would get through), and two further doses in the ward at 6 hourly intervals. Giving a longer course risks side effects and emergence of resistance. Some surgeons give more recently developed drugs in combination because of resistance and many hospitals have a protocol which should be followed. However if a surgeon followed a well recognised drug scheme this would be supportable even if his hospitalâ&#x20AC;&#x2122;s protocol was different. Although Im not planning to discuss infection and its treatment, despite all this being undertaken there is a risk that a deep infection may occur (1-2% after joint replacement) and this would not be negligent although delayed diagnosis and poor treatment might be.

Where a patient is having joint replacement the answer is easy,provided there are no contraindications. For a hip replacement the patient should have 4 weeks chemical and six weeks mechanical and for a knee replacement 2 weeks chemical and 6 weeks mechanical. In general both groups would have pumps for the first day or so and then stockings. All the anticoagulants cause bleeding whether by injection or mouth and as a result,from a practical point of view,patients have injections whilst in hospital and tablets at home. It is perfectly easy to teach patients to give themselves the injections if that is the preferred method.I did this myself. No treatment starts until after the op and if excessive bleeding occurs the treatment is stopped. In the replacement scenario it is usual to give prophylaxis and it would be difficult not to do this. However, there are units who might give only aspirin for prophylaxis.This is not recommended by NICE and is less effective but if a hospital makes it protocol or sufficient surgeons agree this could be defensible.

The tourniquet is a frequently used tool in limb surgery. The aim is to block arterial blood flow into the limb. This means it needs to be inflated to a pressure well above the systolic BP. Most tourniquets are automatic and inflate to the correct level with the flick of a switch. Very high uncontrolled pressure would cause tissue damage but the main danger is the time the tourniquet is inflated. The maximum time a leg tourniquet should be inflated is 2 hours. If an operation is to take longer the tourniquet can be deflated to allow blood flow and reinflated 20

The problem lies in other operations.It is generally accepted that without specific indications, no prophylaxis is given after an arthroscopy. The intermediate operations such as ligament reconstruction and patella realignment. are a problem. There is a period of inactivity after the op but only for a short time. The patient was sometimes braced, reducing

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 52

minutes later. If the op is to be very long the tourniquet could be avoided. Where there is less risk of bleeding a surgeon could place the tourniquet in position but inflate it only if bleeding occurs. When the tourniquet is inflated and when deflated should be recorded on the anaesthetic sheet as should the tourniquet time (the time it was inflated).

These days there are registers of the results of operations particularly Total Hip Replacement and Knee Replacement and others for say Ligament surgery are starting up. Although it is possible to obtain the results of surgery from the hospital individual figures are limited to a few people only. In general in the UK there are a number of straightforward procedures which most surgeons could perform successfully.

There have been papers that suggest that anoxia occurs in the tissues with any tourniquet and some surgeons prefer to avoid tourniquets completely using other means of haemostasis.

Checking on the procedure performance is not easy from the notes,most surgeons will try to gloss over “difficulties” and play down any problems. If a problem happens during an operation which is unexpected a good surgeon will explain what has happened,why it has happened and his correction of it. Such a surgeon who argues effectively is not likely to be negligent, although unexpected division of a nerve or major vessel might be an exception.

Has the operation been performed satisfactorally? The first question is whether the right operation has been chosen in the first place. Some surgeons are adventurous, which might be good in certain circumstances, but they should be able to back up their advice with the literature and their experience. The surgeon performing an operation for the first time without backup is a no-no these days.

If the op cant be judged from the notes in orthopaedics there is always the Xray! Xrays can be illuminating and the current computer Xrays can be measured accurately more so than measuring the old films with a ruler. Clearly no one is expected to be perfect and in all circumstances there is an allowed variant which can be questioned between experts. Examination and measuring of Xrays can be very helpful in determining negligence. So that if the leg for instance is very bow-legged or the implant at a major angle to what it should be this should be clearly shown.

Some surgeons use unorthodox items in surgery. We used to use a teaspoon to protect the artery and nerves in knee surgery with good effect,it worked perfectly and safely. However to use an instrument in an unorthodox way and against the recommendations of the manufacturer is never wise. A colleague who used a haemostasis machine in which the active agent was intended to be propelled by the air. merely used the air alone injecting a large amount of air into his patient resulting in a fatal air embolus. He was rightly severely criticised and faced a GMC tribunal.

If something does go wrong the patient will often ask for a second opinion. To assess that opinion its important to know who’s giving it. The advice should be from a specialist with a practice of giving such opinions. Usually at this stage the expert is only examining the notes etc to give an opinion but to have a letter after a second examination can be extremely helpful. Recently I was asked for advice concerning a painful knee replacement with mild instability based on the hospital notes. After seeing the second opinion letter it was clear that the knee was grossly unstable in all directions which could only come from a negligently performed operation and wrote to the instructing solicitor changing my own opinion.

The surgeon must be capable and trained to do the operation.All consultants appointed must have a Certificate of Higher Surgical training after passing their FRCS (Orth). This is a Royal College of Surgeons requirement and they need to be on the Specialist Register with the GMC. With all types of surgery being so highly specialised the training usually includes time in a specialist unit with a main interest for example in Hands,Spines or Knees. Any surgeon working outside his trained area would be liable for criticism. The surgeon should be doing a number of that type of operation per year to be regarded as competent and retaining his/her skills. Numbers have been bandied about concerning the number of operations required but this has always been challenged and does depend on the area of the country where one works, whether densely populated or not.There is a story that in the US it is quite common for some surgeons to do only one operation of a specific type,eg total knee replacement, per year. I wouldn’t want to be that surgeon’s patient! So it is worth asking about the surgeons training and his practice although such information can be difficult to obtain.

EXPERT WITNESS JOURNAL

I have attempted to cover most of the areas around an orthopaedic operation where negligence can be considered.Patients are often very definite in the area where they think they’ve been wronged.It is the duty of the expert to consider all the medical records and produce an independent view.I usually read the patients statement which is very helpful although I don’t normally include in the first report giving my advice. Patients/claimants often have a very clear view of events which is at odds with the notes. Their memory is clear that usually after a conference their statement views can be included adjacent to the notes. 52

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 53

One of the causes of negligence claims is that a surgeon might say â&#x20AC;&#x153;if only youâ&#x20AC;&#x2122;d seen me 20 years ago this wouldnt have happenedâ&#x20AC;?. Naturally such a patient would immediately go and see a solicitor!

Mr A J M Birnie Consultant Orthopaedic Surgeon FRCS GMC

I advised on such a case for the defence.The patient had a femoral fracture around 1970. As might be expected for the time it was declared inoperable by any experienced surgeon who normally did operate on fractured femurs. It was treated in traction for 3 months.After 3 months he was treated in POP for a further 3 months.The only notes from the first 3 months was a transfer letter and there were no Xrays. The letter stated that the fracture was in good position. After plaster removal the leg was extremely stiff angulated and shortened and he had numerous operations in an attempt to correct this. The surgeons off the cuff remark occurred in the 1990â&#x20AC;&#x2122;s.

Tel: 0191 373 4457 Fax: 0191 373 4457 Alternative contact Mrs Davison (Sec) Tel: 0191 584 4614 Fax: 0191 565 5998 Email: ajmb@ajmbirnie.com Eshwood House, Acton Road, Esh Winning, Durham DH7 9PL

The argument centred around what was acceptable in the 1970â&#x20AC;&#x2122;s ( and which wouldnâ&#x20AC;&#x2122;t have been accepted now). The claimants advisor said that the position was not acceptable and if it was acceptable on transfer (viz the letter) it must have occurred whilst in plaster. There were no xrays over any of his original treatment.We argued that there was no evidence of this as acceptable in the 1970â&#x20AC;&#x2122;s was totally different from the 1990â&#x20AC;&#x2122;s or today. The case was withdrawn one week before trial. Its clear all surgeons should be careful what they say and if they feel there is malpractice they should document it. â&#x2013;

Rooms also at: 8 Grange Terrace, Stockton Road Sunderland SR2 7DF

/ 12 /1 ,6

,+02)1 +1 /1%,- "!& 2/$",+

Mr Ian Nelson

/ 12 /1 ,6 &0 ,+02)1 +1 /1%,- "!& 2/$",+ 1 %" ,6 ) ) *,/$ + ,0-&1 ) " % 0 /, ! "5-"/&"+ " &+ $"+"/ ) ")" 1&3" ,/1%,- "!& +! 1/ 2* 4,/(), ! &1% 0-" & )&01 "5-"/1&0" &+ ),4"/ )&* 02/$"/6 "0-" & ))6 1% 1 ,# 1%" (+"" " % 0 ,3"/ 6" /0 "5-"/&"+ " &+ / 2* +! /1%,- "!& 0 +! % 0 $ &+"! "51"+0&3" "5-"/&"+ " &+ 1%" *,/" ,**,+ &+'2/&"0 0""+ &+ "/0,+ ) +'2/6 ) &*0 02 % 0 4%&-) 0%

Consultant Orthopaedic Spine Surgeon MB BS, MChOrth, FRCS

Mr Nelson has an excellent knowledge of general Orthopaedics with a special interest in spine surgery. He has regularly written Personal Injury reports as instructed by claimant and defendant solicitors since 1988. He has appeared in Court on two occasions in 2012. Mr Nelson restricts his area of medicolegal expertise to all aspects of spine injuries and disorders

/ ,6 % 0 ""+ -/"- /&+$ *"!& , )"$ ) /"-,/10 #,/ ,3"/ 6" /0 " -/"- /"0 &+ 1%" /"$&,+ ,# 7 /"-,/10 -"/ ++2* #,/ ) &* +10 +! !"#"+! +10 4&1% / 1&, ,# ,+1 1

") * &) "+.2&/&"0 0,/1%, , 2( " 444 /!&##0-,/10,/1%,- "!& 0 , 2(

Contact: Level 2, Gate 6, Brunel Building, Southmead Hospital, Westbury on Trym. Bristol, BS10 5NB

-&/" /!&## ,0-&1 ) /,"0 ! /+ , ! "+146+ /!&##

Tel: 0117 414 1620 Contact: Mr Ian Nelson Secretary Mrs Mary Burns Email: mary.burns@nbt.nhs.uk Web: www.bristolspinesurgery.com

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:26 PM Page 54

Research Suggests Not all Trans Fatty Acids are Bad For New evidence suggests that low levels of trans fatty acids (TFAs) may not be as harmful to human health as previously thought, even if industrially produced, and may even be beneficial if they occur naturally in foods such as dairy and meat products, according to a study published in the European Heart Journal (1)

Artificial TFAs occur when oil goes through a process of hydrogenation, which makes the oil more solid. They are used as ingredients in processed foods, such as cakes, biscuits and pies, and for frying. It has been well-established that high levels of industrially produced TFAs in food can lead to high cholesterol, heart problems, strokes and diabetes, and they have even been linked to infertility, Alzheimer’s disease and some cancers. Action has been taken in the USA to reduce the amount of artificially produced TFAs in food, while intake of these has tended to be lower in most of Europe. However, until now it has been unclear what is the highest concentration of TFAs that is safe for humans, and whether or not there is any difference between industrially produced TFAs and naturally occurring ones.

physical exercise, body mass index (BMI), diabetes and high blood pressure. Dr Kleber said: “We found that higher concentrations of TFAs in the membranes of red blood cells were associated with higher LDL or ‘bad’ cholesterol, but also with lower BMI, lower fats in the blood (triglycerides) and less insulin resistance and, therefore, a lower risk of diabetes. We were surprised to find that naturally occurring TFAs were associated with a lower rate of deaths from any cause, and this was driven mainly by a lower risk of sudden cardiac death. “We were also surprised to see that increases in the concentrations of industrially produced TFAs were not followed by increased mortality, which stands in contrast to observations from the United States. The reason for this may be, that in our group of German patients, TFAs were in general much lower than those found in the United States, so that hardly anybody in the study reached concentrations common to people in the US.”

Researchers in Germany, led by Dr Marcus Kleber, a post-doctoral researcher at the Vth Department of Medicine of the Medical Faculty Mannheim at Heidelberg University, measured the concentrations of TFAs found in the membranes of red blood cells in participants in the Ludwigshafen Risk and Cardiovascular Health (LURIC) study. A total of 3316 people living in south-western Germany joined the study between 1997 and 2000 after being hospitalised in order to have coronary angiographies to investigate heart disease, and 3,259 of them were analysed for this study. During a median follow-up period of just over 10 years (ranging from less than one year to nearly 12 years), 975 (30%) of these patients died.

The proportion of TFAs in the blood of the study participants ranged from 0.27-2.40% of total fatty acids, with an average of just under one percent. Another study in the USA over a similar time period reported an average of more than 2.6% of total fatty acids. The patients were divided into three groups: those that had the highest concentrations of naturally occurring TFAs (greater than 0.2%) had a 37% reduced risk of sudden cardiac death as compared to those with the lowest concentration, after adjusting for various factors that could affect the results. Results for any other associations between total TFAs, industrially produced TFAs or naturally occurring TFAs and death were mostly not statistically significant after adjustments for confounding factors.

The researchers analysed blood samples from the patients to identify the total concentrations of TFAs, as well as distinguishing between the concentrations of industrially produced and naturally occurring TFAs. They linked this with information on deaths, causes of death, medical history, and other factors that could affect results, such as whether or not the patient were taking cholesterol-lowering drugs, such as statins, and risk factors such as smoking, lack of EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 55

Dr Kleber said: â&#x20AC;&#x153;Our results show that the low levels of industrially produced TFA we found in the LURIC study did not pose a health risk, and therefore could be regarded as safe. We also found that trans-palmitoleic acid (a naturally occurring TFA found in milk and meat from ruminant animals) is associated with better blood glucose levels and fewer deaths from any cause, but especially a lower risk of sudden cardiac death.

made possible by combining LURIC with analysing levels of fatty acids in red blood cells with a specific method established in Professor Clemens von Schacky's laboratory, which reduces both the day-today variability of the sample as well as the variability in the measurement. We feel that we will be able to say more about fatty acids and their importance for health in the future.â&#x20AC;? â&#x2013;

â&#x20AC;&#x153;According to previous research [2], TFA consumption in European countries varies considerably. Mediterranean countries traditionally use more olive oil than hydrogenated vegetable oils and therefore their diet contains less TFA than the traditional diet in northern European countries. However, TFA consumption in some eastern European countries and in some developing countries remains high. Unfortunately, focusing on intake has important limitations that can be circumvented by focusing on red blood cell levels, as we did in our study. Therefore, our data support a new approach to investigating TFAs and provide evidence that naturally occurring TFAs have to be differentiated from industrially produced TFAs.â&#x20AC;?

[1] â&#x20AC;&#x153;Trans Fatty Acids and Mortality in Patients re-

References ferred for Coronary Angiography - The Ludwigshafen Risk and Cardiovascular Health Studyâ&#x20AC;?, by Marcus E. Kleber, Graciela E Delgado, Stefan Lorkowski, Winfried MĂ¤rz, and Clemens von Schacky. European Heart Journal. doi:10.1093/eurheartj/ehv446 [2] Craig-Schmidt MC. World-wide consumption of trans fatty acids. Atheroscler Suppl. 2006;7(2):1-4. and Hulshof KF, van Erp-Baart MA, Anttolainen M, Becker W, Church SM, Couet C, et al. Intake of fatty acids in western Europe with emphasis on trans fatty acids: the TRANSFAIR Study. Eur J Clin Nutr. 1999;53(2):143-57.

The European Society of Cardiology (ESC) represents more than 90 000 cardiology professionals across Europe and worldwide. Its mission is to reduce the burden of cardiovascular disease in Europe.

He said LURIC, led by Professor Winfried MĂ¤rz, was an important epidemiological study due to the long follow-up period of observation and the detailed information on the participants. â&#x20AC;&#x153;Our findings were

Dr Bhavesh Sachdev Consultant Cardiologist

1 !* (!-!.

Dr Bhavesh Sachdev is a Consultant Cardiologist based at the Royal Berkshire Hopstial NHS Foundation Trust in Reading. He is also Honorary Consultant Cardiologist at Imperial College Hospitals NHS Trust in London.

/.24,3!.3 !1$)/,/')23 (82)#)!. 1 !* (!-!. )2 ! /.24,3!.3 !1$)/,/')23 (82)#)!. "!2%$ ). 1%7(!- /13( !,%2 % )2 %70%1)%.#%$ ). -!.!').' !,, !20%#32 /& '%.%1!, #!1$)/,/'8 2 ! #,).)#!, ,%!$ &/1 &/1 (%!13 &!),41% #/-0,%7 0!#).' $%5)#%2 !.')/'1!0(8 !$4,3 #/.'%.)3!, #!1$)!# 2%15)#%2 !.$ 01%'.!.#8

Dr Sachdev has trained in all aspects of General Cardiology and has a special interest in ischaemic heart disease and coronary intervention, coronary artery disease, uncontrolled hypertension, inherited heart muscle disease, arrhythmias, syncope, heart rhythm abnormalities, cardiac causes of loss of consciousness and inherited heart muscle disease.

1%!2 /& %70%13)2% ).#,4$% ,, !20%#32 /& '%.%1!, #!1$)/,/'8 %!13 !),41% !11(83(-)! !.$ #/-0,%7 0!#).' !1$)/-8/0!3(8 !.$ 24$$%. #!1$)!# $%!3( !1$)/5!2#4,!1 2#1%%.).' !.$ #!1$)!# !.')/'1!0(8 $4,3 #/.'%.)3!, (%!13 $)2%!2% !.$ 01%'.!.#8

He undertakes a wide spectrum of cases including medical negligence, criminal prosecution and defence; and fitness to attend trial.

1 (!-!. 4.$%13!+%2 -%$)#/ ,%'!, 6/1+ !#3).' !2 !. %70%13 6)3.%22 ). 5!1)/42 #!2%2 ).#,4$).' #!2%2 /& -%$)#!, .%',)'%.#% #/1/.%1 2 #!2%2 #!2%2 ).5/,5).' #/-0%3%.#% #!42!3)/. 01/'./2)2 $14' %11/12 01/#%$41!, #/-0,)#!3)/.2 %11/12 /##40!3)/.!, !22%22-%.3 !.$ !20%#32 /& $)2!"),)38 )3( ! 0!13)#4,!1 ).3%1%23 ). 1%0/13).' 92415)5!"),)38 :

Contact: Sue Adams 01189 553 433 or 01183 223 399 Email: sue.adams@privatepractice.co.uk Available; Berkshire, Greater London and Nationwide

1%7(!- !%,/1 /20)3!, %0!13-%.3 /& !1$)/,/'8 1/%2.%68$$ /!$ 1%7(!- %,

-!), 1!*%2( 3(!-!. 6!,%2 .(2 4+

EXPERT WITNESS JOURNAL

MBBS, BSc (Hons), FRCP (Lond)

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 56

Acute Cardiovascular Care Conference to Highlight Innovations and Controversies Acute Cardiovascular Care 2015 will highlight innovations and controversies in the field, guaranteeing great stories on topics relevant to the press. It will be held from the 17th to 19th October 2015 in Vienna, Austria. interest to delegates. Antiplatelet therapy in ACS patients is a hot topic and research will be revealed on the duration of dual antiplatelet therapy (DAPT). Biomarkers are a rapidly evolving area and new rule in and rule out strategies in myocardial infarction using high sensitive troponin assays and the new marker copeptin will be debated.

Acute Cardiac Care The conference is held 17 to 19 October 2015 in Vienna, Austria at the HOFBURG Vienna congress centre. It is the annual meeting of the Acute Cardiovascular Care Association (ACCA), a registered branch of the European Society of Cardiology (ESC). Acute cardiovascular care is the specialty of cardiology dealing with acute problems in need of urgent care including heart attack, cardiac arrest, and acute heart failure, but also other conditions leading to acute cardiovascular problems such as pulmonary embolism or stroke.

Original research findings will be released on the emergency situation of aortic aneurysm. Also of importance is the treatment of pulmonary embolism and deep vein thrombosis (DVT) with non-vitamin K antagonist oral anticoagulants (NOACs), a subject included in the programme for the first time this year.

“The main theme this year is innovations in acute cardiovascular care,” said Professor Kurt Huber, Chairperson of the Scientific Programme Committee.

Other crucial topics have been added to the scientific programme such as antithrombotic therapy, atrial fibrillation, treatment of bleeding, interventional cardiology, pacemakers and implantable cardioverter defibrillators (ICDs), external heart pumps, and stroke systems of care.

He continued: “Novelties will be presented and discussed throughout the abstracts and symposia. To take one example, in a session on innovations in acute heart failure, experts will present the latest data on new treatments such as vasodilator therapy, ventricular-arterial coupling, an interatrial decompression device, and mechanical support.”

A novel ESC position paper on the pre-hospital management of chest pain and dyspnoea will be distributed during the meeting.1 First author Professor Farzin Beygui said: “The position paper is the first symptom based paper ever published on the subject covering the wide spectrum of cardiovascular acute conditions that may cause chest pain or dyspnoea (acute coronary syndromes, aortic dissection, pulmonary embolism, pericarditis, acute heart failure, tamponade).”

“Experts may be particularly interested in sessions covering controversies in clinical practice that are heavily discussed among physicians,” said Professor Huber. “These include pre-treatment (pre-hospital) of patients with acute coronary syndromes (ACS), the use of bivalirudin versus heparin during primary percutaneous coronary intervention (PCI), thrombus aspiration in patients with ST-segment elevation myocardial infarction (STEMI), and early management after out of hospital cardiac arrest.”

Professor Beygui continued: “Its aim is to provide guidance which may be applicable in all European countries despite the variety of emergency medical services (EMS), for the pre-hospital management of the above mentioned conditions, based on evidence where available or expert opinion and consensus.”

Developments in the field and thought-provoking opinion will be presented in numerous areas of EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 57

The paper may provoke controversy over its recommendation for physician based EMS. Unlike most EMS worldwide, the majority of EMS in Europe are physician-based. Because a high level of pre-hospital care may require emergency physicians on scene, the paper recommends a physician-based EMS organisation with the availability of emergency physicians in the case of chest pain or acute dyspnoea of suspected cardiac origin.

Professor Huber said: â&#x20AC;&#x153;Reporters who want to stay one step ahead of their rivals should attend Acute Cardiovascular Care in Vienna. State-of-the-art advances in emergency cardiac care are set to be unveiled, making it an event not to be missed.â&#x20AC;? â&#x2013; References 1, Beygui F, Castren M, Brunetti ND, Rosell-Ortiz

F, Christ M, Zeymer U, Huber K, Folke F, Svensson L, Bueno H, Van't Hof A, Nikolaou N, Nibbe L, Charpentier S, Swahn E, Tubaro M, Goldstein P. Pre-hospital management of patients with chest pain and/or dyspnoea of cardiac origin. A position paper of the Acute Cardiovascular Care Association (ACCA) of the ESC. Eur Heart J Acute Cardiovasc Care. 2015 Aug 27. pii: 2048872615604119

â&#x20AC;&#x153;This point is based on expert consensus and not striking evidence,â&#x20AC;? said Professor Beygui. â&#x20AC;&#x153;The presence of a physician may improve pre-hospital diagnosis (ultrasound), allow higher rates of reperfusion therapy especially by pre-hospital fibrinolysis, provide higher levels of competence for treating life threatening conditions and more accurate identification of the destination for patient transfer.â&#x20AC;?

About the Acute Cardiovascular Care Association The European Society of Cardiology (ESC) represents more than 90 000 cardiology professionals across Europe and the Mediterranean. Its mission is to reduce the burden of cardiovascular disease in Europe.

The three day event features over 45 sessions with lectures from thought leaders from around the globe and breaking results in the abstract-based programme. A rapid fire abstract session will showcase the best abstracts and innovations. Delegates attending Acute Cardiovascular Care 2015 will join more than 1,000 cardiologists, emergency physicians, intensive care physicians, internists, surgeons, imaging specialists, interventionists, nurses, paramedics and students from nearly 80 countries.

Acute Cardiovascular Care 2015 will be held 17th to 19th October in Vienna, Austria at the HOFBURG Vienna congress centre.

Dr Gordon Williams

Consultant Cardiologist

MB BCh FRCP FACC

2157/6$16 $4',2/2*,56

Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT

4 71&$1 ;021' +$5 %((1 $ &2157/6$16 &$4',2/2*,56 $6 6 $46+2/20(9 5 253,6$/ 129 $ 3$46 2) $465 ($/6+ !4756 5,1&(

Tel: 0113 218 5943 Fax: 0113 218 5987 Mob: 07702 550 758

( +$5 %((1 71'(46$.,1* (:3(46 9,61(55 $1' 0(',&2/(*$/ 924. )24 024( 6+$1 ;($45 $1' +$5 &203/(6(' +,5 $4',)) "1,8(45,6; 21' 2/21 (:3(46 #,61(55 &2745(

Email: sandra.ellerbeck@spirehealthcare.com Member British Cardiac Society

4 ;021' &744(16/; &203/(6(5 0(',&2/(*$/ 4(32465 3(4 9((. )24 3(4521$/ ,1-74; $1' 0(',&$/ 1(*/,*(1&( 9,6+ 427*+/; $ 53/,6 &/$,0$16 '()(1'$16

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.

( +$5 $/52 &203/(6(' (:3(46 9,61(55 924. )24 6+( (1(4$/ (',&$/ 271&,/ 6+( (',&$/ ()(1&( "1,21 $1' 6+( 4291 425(&76,21 (48,&( $5 9(// $5 $&&(36,1* 34,8$6( ,15647&6,215 ',4(&6/; )24 52/,&,6245 ( +$5 $/52 3428,'(' 0(',2/(*$/ 23,1,215 )24 &$5(5 ,1 ,1*$324(

! '(%%,( '4'71&$1';021' &20 # 999 '4'71&$1';021' &20

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. EXPERT WITNESS JOURNAL

$4/(; 64((6 21'21 #

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 58

Why am I Stressed Since That Accident? Cognitive Model of Trauma Including Perceived Injustice by Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP Dr Kavita Misra, Chartered Psychologist, Hugh Koch Associates LLP Dr Tracey Jackson, Chartered Psychologist, Hugh Koch Associates LLP Dr Annette Farrant Chartered Psychologist, Hugh Koch Associates LLP Stress is a common reaction to traumatic events such as traffic, work and medical accidents. Recovery varies between individuals. It has been suggested that traumatic stress becomes persistent when individuals develop a sense or belief of serious current and ongoing threat, as a result of: 1. Excessively negative thoughts about the index trauma and its after effects. The trauma is not seen as time-limited or sensation-limited. Individuals over-generalise from the traumatic event and see a range of normal everyday activities as more dangerous than they really are. They magnify the chance of further catastrophic events occurring. Some examples of this (Ehlers and Clark, 2000) are shown in Table 1 opposite. EXPERT WITNESS JOURNAL

Table 1: What is appraised? Fact that trauma happened Irritability, anger outbursts

Emotional numbing

Flashbacks, intrusive recollections and nightmares 58

Negative appraisal “Nowhere is safe” “The next disaster will strike soon” “My personality has changed changed for the worse” “My marriage will break up” “I can’t trust myself with my own children” “I’m dead inside” “I’ll never be able to relate to people again” “I’m going mad” “I’ll never get over this” AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 59

These illogical appraisals keep the stress going by directly producing anxiety, depression and anger and by encouraging individuals to do things which enhance stress. For example, suppressing thoughts about what happened can make the thought more likely to come to mind. This may, unwittingly, be reinforced by family and friends who avoid bringing the subject of the incident up in conversation.

because the individual rightly or wrongly perceive that they have been, treated badly (e.g. by their employer), are not getting better, are being poorly assessed by doctors or lawyers or misunderstood by family members (Leckart, 2011). This tends to be trivialized, or ignored partly perhaps due to it not being explicitly recognised as a DSM V or ICD 10 disorder. The closest options available in DSM V include - Intermittent Explosive Disorder (312.34) or Adjustment Disorder Unspecified (309.9).

2. Trauma memory may be difficult to recall intentionally – it is fragmented and disorganised. Alongside this, there can be a high frequency of involuntarily triggered intrusive memories involving painful re-experiencing, often visual. It is thought that this is due to the way the trauma is ‘encoded’ for memory, by poor recall in content and in time (i.e. no context in time, hence the perception of current threat, even 1 – 2 years post accident). In addition, recall is biased by selective retrieval e.g. the claimant only recalls unfriendly responses of carers at the time of the accident, and doesn’t recall those that helped. In general, the organisation of their autobiographical memory is disturbed, leading to disorientation and upsetting feelings.

Perceptions of injustice may not simply be ‘understandable’ non-significant reactions to experiencing a non-fault debilitating injury (Sullivan et al 2014). Research and clinical experience indicate that perceived injustice, after an injury, can impede successful recovery from that injury and associated pain, and can trigger a number of social, psychological and physiological changes which compromise recovery. Incorporating cognitive understanding into robust opinions We have previously cited a number of medico-legal postulates (Koch, 2015) which operationalise explicitly the importance of robust opinions. These reflect the need to comprehensively assess diagnosis, causation and attribution (Koch Postulate I) and this includes any factors which could affect a specific index event reaction (Koch Postulate VII). The recognition of illogical cognitive appraisal including perceived

Changing these negative appraisals and memories are hampered or prevented by strategies (Ehlers and Clark (2000)) such as: 1. Behavioural: trying to prevent nightmares by going to bed late/getting up early, safety behaviours (e.g avoiding driving); avoiding friends (to avoid accident-related conversations). 2. Cognitive: Thought suppression, avoidance of accident reminders, not making plans for the future, rumination about the trauma and its consequence. Dissociation, an extremely disturbing experience, when reminders of the trauma interfere with recovery, due to derealisation, depersonalisation and emotional numbing can also occur. Both behavioural and cognitive strategies used to control stress are likely to be influenced by prior experiences and beliefs. A number of unusual experiences can be explained by the above strategies and mechanisms namely, delayed onset of stress symptoms, anniversary reactions, feeling ‘frozen in time’, sensation of impending doom, lack of benefit from talking about the trauma accurately. The above explanation gives a framework to help explain the puzzling complexity and phenomena seen with some claimants and helps to provide a framework for treatment. Specific components of distressing thinking and feeling: - Anger, the overlooked injury In addition to experiencing anxiety and depression after a traumatic event, one very common undiagnosed or unrecognised symptom is anger, EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 60

injustice is crucial to the above two postulates. The forgoing discussion has been crystallised into an additional postulate, namely: Experts should consider whether the level of anger and frustration experienced by a claimant meets the criterion for a recognised psychological disorder or is a normal, time-limited reaction, aided by conclusion of litigiation. (Koch Postulate XVII).

Conclusion Clearer understanding of cognitive, emotional and behavioural aspects of trauma experience help the lawyer and the expert arrive at a more robust opinion of diagnosis, causation and prognosis and also aid the therapist in focusing on interventions which are beneficial and accelerate recovery.

Treatment Implications Providing effective therapy requires a careful assessment of which aspects of thinking and behaviour are causing difficulties and preventing a natural resolution of trauma-related stress.

Ehlers A and Clark DM (2000) A cognitive Model of PTSD. Behaviour Research and Therapy 38, 319 – 345

Reference:

Elbers NA, Collie A and Akkermans A J (2015) Does blame impede health recovery after transport accidents. Psychological Injury and Law 8, 82 – 87 Koch HCH (2015) Robust opinions need robust reasoning: 15 medico-legal postulates. Solicitors Journal. Feature. 06.05.2015

Putting trauma into the past requires clearer trauma memory, re-appraising the trauma and its consequences (e.g. sense of threat currently) and altering dysfunctional behavioural and cognitive strategies that prevent or impair accurate, realistic memory. A wide range of CBT- based interventions help to achieve this including ‘in vivo’ exposure, by the individual with support from family, friends or therapists.

Leckart B (2011) Anger: an overlooked injury. WETS Psychology newsletter. October 1, 33 Sullivan MJL, Yakobov E, Scott W and Tait R (2014) Perceived Injustice and Adverse recovery outcomes. Psychological Injury and Law 7, 325 – 334

Dr Misra regularly holds clinics in Manchester and Nottingham Dr Farrant regularly holds clinics in Cheltenham and Bristol

Given the research indicating that perceived injustice and anger are predictors of ongoing disability, interventions that give modified perceived injustice are likely to be associated with reduction in chronic pain, as well as depression and anxiety (Elbers et al (2015)).

Dr Koch regularly holds clinics in Cheltenham, London and Birminghtam Further information can be obtained from the authors at www.hughkochassociates.co.uk and hugh@hughkochassociates.co.uk

Dr Ian Starke

Dr Dawn Bailham

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

Consultant Clinical Psychologist

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

MSc Forensic Psychology DClinPsych Doctorate in Clinical Psychology BSc (Hons) Psychology

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

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

Dr Starke undertakes expert examinations and reports for fitness to practise and potential litigation cases in stroke medicine, geriatric medicine and general medicine. He provides expert examinatons and reports for solicitors, immigration and HM prison services. He is able to assess clients within or outside London.

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

Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net

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

Tel: 07801 266 010 Email: dawnbailhan@icloud.com Oracle care Unit 54, Wrest Park, Silsoe Bedfordshire MK45 4HS

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 61

Understanding the Nature of Personality Disorders? by Dr Dennis Trent, Chartered Clinical Psychologist Midlands Psychological Services Of all mental disorders Personality Disorders are probably the most misunderstood. Many times I have read psychiatric reports in which the psychiatrist has said that the person does not have a mental illness, it just a personality or behavioural disorder. Like the majority of mental problems, personality disorders are, in most cases, the result of non-medical issues. There are a few examples where a disease or head trauma can alter or affect a personâ&#x20AC;&#x2122;s personality, however in the main the personality is developed over time and the personâ&#x20AC;&#x2122;s interpretation of their experiences.

Children need to trust their environment and those in it. In many ways, their lives depend on those around them. If that environment is unstable or chaotic, it becomes difficult to trust, as in its most basic form, trust allows a child to predict the future. If the environment is unstable, that is the child cannot predict the actions of others in the environment, or if the limits applied to the child are constantly changing, the need to continually test those limits becomes imperative. One of the hallmarks of abused children is their inability to play since they are always testing those limits to see if they are in the same place they were moments ago.

It is the perception of the experience rather than the experience itself that can cause an event to be seen as either positive or negative. That is why two people can experience the same event and have completely different reactions to it. So what does this mean for a personality disorder? The answer is that it helps us to understand why two people can be raised in a dysfunctional environment and one will develop a personality disorder while the other either does not or develops a completely different personality disorder.

EXPERT WITNESS JOURNAL

To say that events help form the self-concept is much like saying the sun is hot; most people accept that as a given. We tend to gain much of our sense of who and what we are from the way people react and respond to us. A child learning to walk makes many mistakes with no adverse effect on their self-concept. As the child grows older the acceptance or rejection of others through approval, disapproval or ridicule of those efforts will contribute strongly to how children view themselves and the world around

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 62

them. The children that are constantly treated like an object are highly likely to begin to see themselves as objects. This can easily expand to others to the point that everyone is viewed as an object.

limits our world view is determined by how we perceive the events which have occurred throughout our lives. There is an old adage that says that everything seen in abnormal psychology can be seen in normal psychology. It only becomes a disorder when it affects our daily living and the manner in which we interact with the world around us and others in that world to the point that it causes a marked deviation from the expectations of the individualâ&#x20AC;&#x2122;s culture. This must occur in cognition, that is the way in which people perceive and interpret themselves, other people or events; affect, or the range, intensity lability and appropriateness of emotional responses; interpersonal functioning; and impulse control. Because of its nature, it is long-standing, inflexible and pervasive, and leads to clinically significant impairment in social, occupational or other important areas of functioning.

Objects are unique in that they have no intrinsic value; rather they have the value others place on them. Children who see themselves as objects will often rely on others to gain a sense of acceptance. The problem arises in that people will only accept what they believe to be true. If there is no perception of worth of the child by the child, they will enlist others to say that they are worthy only to ultimately reject that and go on to try to get someone else to value them. Child abuse comes in the form of physical abuse, sexual abuse, emotional abuse and neglect. While most people are quite clear in what constitutes physical and, recently, sexual abuse, the role of neglect and emotional abuse are less recognised. In all cases, it is easy to see that the main concern of the abuser is not the child, but is filling a need in the abuser. In virtually every case the child is viewed as an object. The easiest way to understand how this affects the child as that child becomes an adult is to picture a standard round goldfish bowl. Let the goldfish represent the person and the bowl is the personality. It is the thing that allows the goldfish to interact with the world around it while remaining safe within that world. The life events that we all experience over the course of our lives tends to coat the inside of the bowl, much like a goldfish bowl that is not regularly cleaned. If the predominant colour of that coating is pink, the fish will see the world in shades of pink and the world will see the fish in shades of pink. Likewise, if the predominant colour of that coating is blue, the fish will see the world in shades of blue and the world will see the fish in shades of blue.

In that sense, while many with personality disorders know right from wrong, it tends to be an academic knowledge and is not something that may impact on the personâ&#x20AC;&#x2122;s decision to act. While a personality disorder can be singularly present, it can also be present along with other disorders including other personality disorders. Since a personality disorder is the result of the coating or lense through which the world is viewed and that coating can be composed of an infinite number of experiences, there are an infinite variations in personality disorders. Having said that, the most recent publication, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, or DSM-5, put out by the American Psychiatric Association groups them into three main clusters. Cluster A includes Paranoid Personality Disorder, or a basic distrust and suspiciousness of others, Schizoid Personality Disorder, or a pattern of detachment from social relationships, and Schizotypal Personality Disorder, or an acute discomfort with close relationships along with eccentricities in behaviour.

The problem arises in that if the fish were to be shown a pink card while living in a blue bowl, it is likely to say that is pink as it is the same as it has always seen, but the pink it sees is not the same shade as those outside the bowl would see since it is pink seen through a blue filter. It is because of this that most people with a personality disorder do not recognise that they have a personality disorder since the world looks the same as it always has and there is nothing to give an alternate view. Even if told there is a filter, since it has built up over the course of the personâ&#x20AC;&#x2122;s life, there is no understanding of the true colour of pink as it has always been seen through a blue filter. There is, therefore, no real reason for a person to doubt their assumption of what pink really looks like. That coating exists for all of us and determines how we see the world. The degree to which it enhances or

Cluster B includes Antisocial Personality Disorder, a disregard and violation of the rights of other, Borderline Personality Disorder, instability of interpersonal relationships and self-image, Histrionic Personality Disorder, excessive emotionality and attention seeking, and Narcissistic Personality Disorder, grandiosity and a need for admiration. Cluster C includes Avoidant Personality Disorder, social inhibition and feelings of inadequacy, Dependant Personality Disorder, submissive and clinging behaviour, and Obsessive-Compulsive Personality Disorder, a preoccupation with orderliness and perfection. It also includes space for those which do not easily fall into any of the above categories. When the International Classification of Mental and Behavioural Disorders, Eleventh Edition (ICD-11) is published by the World Health

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 63

Organisation it is likely to have slightly different names and classifications, but is likely to be generally similar to DSM-5. While not extensive in detail, the above gives an idea of the breadth of personality disorders which may occur. It also becomes clear that personality disorders have wide ranging impacts on the lives of those who have then as well as those around them. In that sense, when the nature of a personality disorder is understood, it can help to explain how and why a person acts in a given situation. Clearly, almost by definition, an individual with a personality disorder is unlikely to act in a situation impacted on by that disorder in the same way that someone without such a disorder would act.

Clinical, Forensic & Child Risk Assessments Pre/Post Sentence Reports Life Review Panels Therapy, Anger Management Intellectual Functioning (IQ) UK Wide Coverage Private and Legal Aid Short Notice - Quick Response

To understand how and why a person with a personality disorder acts in a certain way, it is necessary to have a clear view of the events that have lead to the establishment of that disorder. Equally, an assessment of the likelihood of change is necessary when assessing any considered intervention or risk posed by someone with a personality disorder. Although they have a long duration and a low efficacy, the treatment of personality disorders is viable in many cases. The treatment of such conditions is, in the long run, less expensive than the consequences of non-treatment. â&#x2013;

Midlands Psychological Services Quayside Tower, 252-260 Broad Street Birmingham, B1 2HF Tel: 0121 224 3051/Fax: 0121 224 3252

Email: mps@midpsych.co.uk

www.midpsych.co.uk

Graham Rogers and Associates Limited

,+02)1 +1 "2/,),$&01 &+ -04& % * /&!$" /"+14,,! 2/6 1 !*2+!0 +! ,) %"01"/ ,+02)1 +1 &+ "2/,),$6 +! "2/,-%60&,),$6 &+ +! -/&3 1" -/ 1& " &+ 01 +$)& -" & ) &+1"/"010 &+ )2!" -&)"-06 2)1&-)" )"/,0&0 "2/,/"% &)&1 1&,+ " ! +'2/6 "2/,),$& ) ,+0".2"+ "0 ,# / 2* +! "!& , )"$ ) -/ 1& "

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

Specialising in children & adults with learning disabilities.

,2+!"/ *"* "/ ,# 1%" -04& % "!& , )"$ ) , &"16 4&1% 4&!" "5-"/1&0" &+ *"!& , )"$ ) 4,/( "5-"/1 4&1+"00 /"-,/10 +! ,2/1 --" / + "0

Experience at The Central Criminal Court, and The Principal Registry of the Family Division. Contact 156 Little Cattins, Harlow, Essex CM19 5RW Mob: 07952 170 627 Email: info@grahamrogers.org.uk suzi.v.brown@gmail.com Web: www.grahamrogers.org.uk

5 * &) 04 +"2/,),$6 +2##&")!%" )1% ,* 2##&")! " )1% -04& % ,0-&1 ) ,5% )) , ! -04& % 2##,)(

Consultant Psychologist

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 64

The Advocate and the Expert in a Testamentary Capacity Claim by Carl Islam, Barrister TEP, 1 Essex Court (www.ihtbar.com) ‘Circumstantial evidence is a very tricky thing,’ answered Holmes thoughtfully. ‘It may seem to point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different… There is nothing more deceptive than an obvious fact. You know me too well to think that I am boasting when I say that I shall either confirm or destroy his theory by means which he is quite incapable of employing, or even of understanding [by] observation and inference. Therein lies my metier.’ The Adventures of Sherlock Holmes The Boscombe Valley Mystery, by Sir Arthur Conan Doyle. In a testamentary capacity claim, ‘Where the will is rational upon its face… the burden [of proof] shifts to the opposing party to raise a real doubt as to capacity. If that occurs the burden then reverts to the propounder of the will.’ The Vegetarian Society & anr v Scott [2013]. To remove the presumption of validity, the burden is then on those who challenge the will, to show sufficient doubt about the deceased testator’s capacity. The showing of ‘sufficient doubt’ does not require proof that the testator actually lacked testamentary capacity, merely that the evidence produced shows sufficient grounds for the court to accept there is ‘a real doubt’ as to capacity, Turner v Turner [2011]. In most circumstances, failure by the propounder to produce evidence, results in a finding against the will, Ledger v Wootton [2008] (where the invalidity of the will was decided not on sufficient proof of incapacity but on the defendant’s failure to discharge the burden of proof after real doubt had been raised). The standard of proof is the ‘balance of probabilities’, Fuller v Strum [2002].

to a witness’s opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed crossexamination and in particular the extent to which a witness faces up to and accepts the logic of a proposition put in crossexamination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence. There is one further aspect of a witness’s evidence that is often important; that is his demeanour in the witness box. As in most cases where the court is evaluating expert evidence, I have placed less weight on this factor in reaching my assessment. But it is not wholly unimportant; and particularly in those instances where criticisms have been made of a witness, on the grounds of bias or lack of independence, which in my view are not justified, the witness’s demeanour has been a factor that I have taken into account.’

The weight to be attached to expert evidence is entirely a matter for the trial judge, and expert evidence is neither automatically admissible in a testamentary capacity claim, nor necessarily a decisive factor. In Loveday v Renton and Welcome Foundation Ltd [1990] Lord Justice Stuart-Smith stated, ‘In reaching [a] decision a number of processes have to be undertaken. The mere expression of opinion or belief by [an expert] witness, however eminent...[in this case about whether a vaccine could or could not cause brain damage] does not suffice. The court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach

The duty of the court is to consider the expert evidence in the light of the facts, not in isolation from them, and where a case involves substantial elements of both opinion and factual evidence the court may accord as much weight to each as it sees fit. As Lord Justice Mummery stated in Hawes v Burgess [2013] (Court of Appeal), in a testamentary capacity claim ‘… the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities… I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms

Introduction

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 65

of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.’

[Expert Evidence, paragraph 4-020]. If each party has its own expert then the court will normally direct mutual disclosure of expert reports. If a party does not disclose an expert’s report, it cannot use the report or refer to it at trial without the permission of the court (CPR r.35.13). The procedural issues and practice of the court are discussed in paragraphs 4.8 to 2.20 of the ‘Chancery Guide’. The court can at any stage direct a discussion between experts as regards the expert issues, and where possible that they reach an agreed opinion (CPR r.35.12). The court may also direct the experts to prepare a statement covering the issues on which they agree, and where they do not agree the reasons for disagreement.

Civil Procedure Rules (‘CPR’) A claim for a decree pronouncing for or against the validity of an alleged will is a probate claim (CPR r.57.1(2)(iii). All probate claims are allocated to the multi-track (CPR r.57.2(4)). Probate claims in the High Court are assigned to the Chancery Division (CPR r.57.2(2). Paragraph 4.8 of the ‘Chancery Guide’ states, ‘[CPR] Part 35 contains particular provisions designed to limit the amount of expert evidence to be placed before the court and to reinforce the obligation of impartiality which is imposed upon an expert witness. The key question now in relation to expert evidence is the question what added value such evidence will provide to the court in its determination of a given case. Fundamentally, Part 35 states that expert evidence must be restricted to what is reasonably required to resolve the proceedings and makes provision for the court to direct that expert evidence is given by a single joint expert. The parties should consider from the outset of the proceedings whether appointment of a single joint expert is appropriate.’

CPR r.35.6 provides, ‘(1) A party may put written questions about an expert's report (which must be proportionate) to (a) an expert instructed by another party; or (b) a single joint expert appointed under rule 35.7. (2) Written questions under paragraph (1) – (a) may be put once only; (b) must be put within 28 days of service of the expert’s report; and (c) must be for the purpose only of clarification of the report, unless in any case – (i) the court gives permission; or (ii) the other party agrees.

Questions in relation to the use of expert evidence are included in the directions questionnaire, and as part of its management of a case, the court will give directions about any expert evidence at the case management conference (‘CMC’). In a multi-track case, the CMC is usually held a couple of months after the parties have exchanged statements of case. At the CMC the procedural judge gives directions for the future conduct of the case, and will consider: (i) what expert evidence is reasonably required; (ii) how and when that evidence should be obtained and disclosed; and (iii) what arrangements should be made about putting questions to experts.

(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report. (4) Where – (a) a party has put a written question to an expert instructed by another party; and (b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert – (i) that the party may not rely on the evidence of that expert; or (ii) that the party may not recover the fees and expenses of that expert from any other party.’

At the CMC the court will not give permission to use expert evidence unless it can identify each expert by name or field in its order and say whether his evidence is to be given orally or by the use of his report. ‘Expert evidence is to be given in a written report unless the court directs otherwise. As a general rule the court is very unlikely to “direct otherwise” because the requirements in the CPR Pt 35 by which: (a) an expert must comply with CPR Practice Direction (‘PD’) 35 (which deals with the contents of reports; (b) must declare that he understands, and has complied with, his duty to the court; (c) must set out the substance of all material instructions and which permit the other party to use the disclosed evidence of another party’s expert apply only to the expert’s report.’ EXPERT WITNESS JOURNAL

‘It can be useful to put questions to an expert in contentious probate cases. The nature of the questions put can often be fact specific but the following generic question may be considered. CPR PD 3.3(6) requires an expert to state in his/her report where there is a range of opinion on the matters dealt with in the report; the expert must summarise the range of opinions and give reasons for their own opinion. Sometimes an expert may not deal with that requirement in a report. A useful question may be to ask the expert if there is a range of opinion in relation to specific conclusions reached – particularly if the expert has not complied with the requirements of the Practice Direction. This can be a useful tactic to ‘set up’ the expert. If the expert states that there is no such range of opinion but is subsequently met by a different 65

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 66

opinion from the expert on the opposing side, this may show the expert’s view to be too narrow – or that the expert has not been willing to consider the merits of other opinions. If the expert concedes that there is indeed a range of opinion with regard to the conclusions reached then this may be seen to dilute the certainty of the expert’s own opinion.’ [TC, paragraph 11.58].

court at the case management stage to embark upon a prescriptive analysis (with the assistance of the parties) of the precise issues to be put to the parties experts, so as to enable their first meeting to be fruitful in the way which I have described. This is consistent with, and likely to follow on from, a generally issue based approach to case management and, in my view, likely very substantially to reduce the cost of expert evidence and the time taken by the court both in pre-reading, and (although to a lesser extent) at trial.’

In paragraphs 6.28 to 6.34 of the ‘Chancery Modernisation Review’ final report published in December 2013, Lord Justice Briggs observed that ‘The present rules enable the court to control the number of expert witnesses, and the general areas of expertise within which expert evidence may be called. CPR 35.4(2)(a) does now require the parties to identify the expert issues, when seeking permission to call expert evidence. But it is not yet the practice of chancery case managers to specify the questions to be put to the experts, or even the specific issues upon which expert evidence is required. Nor is there any practice which requires experts to meet before preparing their main reports. This produces a number of expensive and time-consuming disadvantages, all of which may be alleviated by a greater focus at the case management stage upon the issues. The first is that experts in the same discipline often receive widely different instructions from their separate instructing parties, so that their reports, once exchanged, resemble ships passing in the night. The second is that, not infrequently, a large part of the content of exchanged experts reports is substantially identical, with only small parts dealing with issues about which, after they have met, the experts continue to be in disagreement. The result is that the court is faced with reading slightly differently worded treatises providing substantially the same guidance, at grossly excessive cost to the parties, quite apart from the waste of judicial time. Thirdly, once the experts have met, their combined summary report about areas of agreement and disagreement frequently provides most of what the court needs, augmented by much more focused supplementary reports upon the points of real disagreement.

Evidence In a testamentary capacity claim the expert medical evidence presented to the court will usually include: (i) evidence provided by the deceased testator’s GP and any other medical practitioner, including any nurse, who treated him in the period leading up to execution of the will; and (ii) evidence from a specialist practitioner (i.e. an adult psychiatrist or a psychogeriatrician) who may not have met the deceased testator, who has been instructed to provide an opinion for the court based upon; (a) GP’s and hospital medical records; and (b) any mental tests the deceased may have performed. Where a will has been drafted by an experienced independent lawyer who formed the opinion from a meeting or meetings with the testator that the testator understood what he was doing, a court will only set the will aside on the clearest evidence of lack of mental capacity. The Court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testator, and particularly in circumstances when that expert accepts that the testator understood: (i) that he was making a will; and (ii) the extent of his property.

Other courts and tribunals have already addressed these problems. In particular, it is now standard practice in the TCC [Technology and Construction Court] for experts to be directed first to meet, to prepare a statement of their agreement and non-agreement, and only then to prepare full reports on the points of disagreement. In the TCC it is generally unnecessary for the court to specify the issues for expert determination, since they will often be sufficiently apparent from the statements of case, and from Scott Schedules in particular. I am advised that it is an increasingly common practice in arbitration for similar directions to be given.

‘Any retrospective assessment [by a GP] will have to be based upon medical notes made at the time, as well as on other non-medical information which may help to suggest the nature of the person’s mental functioning at the time… Clearly the doctor will have to indicate that the assessment was retrospective and may therefore be unreliable… Any medical opinion should take full account of relevant information from other disciplines. An assessment by a clinical psychologist may already be available, or could be sought, and this may assist in giving a detailed validated and systematic assessment of cognitive functioning. An occupational therapist has special skills in assessing disabilities which may interfere with activities in everyday tasks. A report from a nurse or social worker may be helpful where information about daily activities or social functioning is of importance. What is important is not the diagnosis per se, but the specific disabilities and how they may affect the person’s ability to make particular decisions… It is important for the

I consider that it is now time for the Chancery Division as a whole to move decisively in the same direction. By contrast with the subject matter of a typical case in the TCC, chancery cases often give rise to issues requiring the assistance of experts without those issues necessarily being spelt out in the statements of case. For that reason, I consider that it will be necessary, much more frequently than in the TCC, for the EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 67

assessing doctor to have access to all relevant medical and psychiatric records. These give an historical picture of a known current disorder, as well as giving diagnostic clues to what might be a so far undiagnosed disorder.’ [AMC, paragraphs 16.9, 17.2, and 17.4].

lay person. Further examples of this would be commenting on the effect of any medication known to have been taken by the deceased at the time of making of the will, commenting on the relevance of notes in hospital records, and translating any relevant medical terminology.’ [TC, paragraphs 11.50 and 11.56].

Instructing an expert To evaluate the merits of a testamentary capacity claim, it is proper and sensible for each party to appoint their own expert before proceedings are issued. An expert medical opinion can then be appended to the claim form. An expert can only give evidence that is within his personal expertise. The judge is most likely to be influenced by the best qualified and experienced expert, especially if the expert has carried out relevant research and has written on the subject. It is therefore important to find an expert who has the right specific expertise, and not just a knowledge of the area. The choice of which type of specialist to instruct will depend upon the nature of the suspected incapacity. The prominence of the expert chosen is partly a matter of keeping the costs of the case at a reasonable level. A GP will not, in most cases, be suitably qualified to act as a medical expert in a contentious probate claim, although very often the deceased testator’s GP will be a witness of fact, and as such will give evidence of the opinion (if any) he formed of the deceased’s capacity around the time the disputed will was made.

A recent illustration is Cowderoy v Cranfield [2011], in which Mr Justice Morgan observed, ‘Neither [of the parties’ expert witness] psychiatrists ever saw [the deceased testator (‘T’)]. Each was provided with written material including medical records and each prepared a report for the court. Each was then provided with further material including each other's reports and each provided a second report for the court. The two psychiatrists met… and prepared a memorandum of their discussion. As neither psychiatrist had ever had the opportunity of seeing [T], neither was in a position to give me a direct psychiatric appraisal at any point in time, let alone on the day [T] executed the disputed will. In principle, psychiatric evidence could assist a court dealing with an issue as to testamentary capacity. For example the evidence could refer to such medical evidence as is available as to an individual's physical condition from time to time and could explain the likely impact on the mind of that physical condition. Similarly, the evidence could refer to medication being taken by an individual and comment on the likely effect on the mind of such medication being taken. Both psychiatrists did to some extent offer views on how likely it was that [T] had testamentary capacity at different points in time. Of course, the views expressed by the psychiatrists depend very much on what they understood the facts of this case to be. Each psychiatrist was given a version of the facts which was probably not complete. Further, understandably, neither psychiatrist sat through the whole trial and neither psychiatrist knew the findings of fact which I would make in this judgment… I will obviously bear in mind this psychiatric evidence when I come to my ultimate conclusions. This psychiatric evidence allows me to be better informed as to the possibility of there being an impact on [T’s] mental functions of her medical condition and, similarly, the effect on her mind of the medication she was taking with or without the addition of alcohol.’

‘The court has a broad discretion to decide whether or not a person is capable of giving evidence on the issues before the court… it is the issue which determines the admissibility of the particular field. If the issue requires a sophisticated level of inferential reasoning in the expression of an opinion on a central question in the proceedings, a witness will not be heard, or if he is heard little weight will be attached to his evidence, if his field is one which does not itself require, in its regular study or practice, a similar level and type of inferential reasoning… It is a matter in the discretion of the court to decide, not only whether a witness is an expert, but also whether his expertise is appropriate to the needs of the case… the only clear guiding principle is that the witness must bring to the case a relevant expertise which the court requires and lacks. It is the issue or issues on which the expert is to give evidence which is relevant, not the general subjectmatter of the case.’ [Expert Evidence, paragraphs 1-028 and 2-008].

New ‘Guidance for the instruction of experts in civil claims’ came into effect on 1 December 2014, and replaced the former ‘Protocol for the Instruction of Experts to give Evidence in Civil Claims’, and is available to download on the website of the Academy of Experts at www.academyofexperts.org/guidance. Paragraph 16 of the Guidance states, ‘Before experts are instructed or the court’s permission to appoint named experts is sought, it should be established whether the experts: a. have the appropriate expertise and experience for the particular instruction; b. are familiar with the general duties of an expert; c. can produce a report, deal with questions and have discussions with other experts within a reasonable time,

‘In a disputed capacity case expert evidence will usually be obtained from a Psychiatrist. If the testator was elderly at the time instructions for the will were given then it is usual to obtain expert evidence from a Psychiatrist who specializes in later-life patients… The expert will need to have regard to the witness statements and documents but his role should be to pick out the relevant points and discuss and consider how they might fit in with a given medical diagnosis - in other words the expert should be concentrating on bringing medical insight to bear on matters which would not be apparent to the EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 68

and at a cost proportionate to the matters in issue; d. are available to attend the trial, if attendance is required; and e. have no potential conflict of interest.’

s.2(1) of The Mental Capacity Act 2005 introduces a new statutory test of capacity, and provides, ‘(1) For the purposes of this Act, 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. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to: (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about his capacity.’

The legal test for testamentary capacity In The Vegetarian Society & anr v Scott [2013], HHJ Simon Barker QC stated that a key factor in preferring the evidence of the claimant’s expert was that he was ‘familiar with the elements of capacity necessary for a testator to make a will’ whereas the other party’s expert was not. Consequently the evidence of the preferred expert, ‘was the more focussed and helpful of the two.’ As Professor Robin Jacoby and Peter Steer remark in their article, ‘How to assess capacity to make a will’ [2007] British Medical Journal 335; 155-7, ‘Much litigation could be avoided… if, doctors, when asked by solicitors, assessed testamentary capacity correctly.’

Note that the definition does not replace the common law test expounded in Banks v Goodfellow (see also Key v Key [2010]). However, Judges may use it to develop new common law rules.

‘To make a valid will the law requires what is always referred to as testamentary capacity and, as a separate requirement, knowledge and approval. The latter requires proof of actual knowledge and approval of the contents of the will. The two requirements should not be conflated. The former requires proof of the capacity to understand certain important matters relating to the will.’ Hoff v Atherton [2005].

‘In many cases [knowledge and approval are] considered with the issue of capacity. Once a court is satisfied that the testator had the capacity to understand what he was doing, it is readily accepted that he did understand.’ Simon v Byford & ors [2013]. ‘In Fulton v Andrew (1875)… Lord Hatherley said that, “When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it… those circumstances afford a very grave and strong presumption that the will has been duly and properly executed by the testator.”

To execute a valid will the testator must be over 18 and have testamentary capacity. Capacity is determined solely by the testator’s state of mind. The criterion of testamentary capacity is that the testator understands, ‘the nature of the act and its effects; [and] understands the extent of the property of which he is disposing; [and can] comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or pervert the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’ Banks v Goodfellow [1870]. The testator must have, ‘a memory to recall the several persons who may be fitting objects of [his] bounty, and an understanding to comprehend their relationship to himself and their claims upon him.’ Broughton v Knight [1873].

This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917]…, whose approach was referred to with approval by Latey J in In re Morris deceased [1971]… Hill J said that “when it is proved that a will has been read over to or by a capable testator, and he then executes it”, the “grave and strong presumption” of knowledge and approval “can be rebutted by only the clearest evidence”. This approach was adopted in this court in Fuller [2002]…and in Perrins v Holland [2010]… There is also a policy argument…, which reinforces the position that a court should be very cautious about accepting a contention that the will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.’ Gill v Woodall [2011].

An eccentric disposition of property is not in itself evidence of incapacity, and it is the whole picture that needs to be looked at. Capacity may be lacking because of mental illness or because the testator is under the influence of drugs or alcohol. ‘More recent cases have modernized these formulations so as to be clear that a competent testator must be able to understand the effect of his wishes being carried out at his death, the extent of the property of which he is disposing, and the nature of the claims upon him.’ Jeffrey & anr v Jeffrey [2013]. Capacity depends on the potential to understand. It is not to be equated with a test of memory, Simon v Byford [2014].

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 69

A testator need not have a full understanding of the legal terminology used by the will/trust draftsman to give effect to his wishes. ‘In some cases where the testator employs an expert draftsman to provide the appropriate wording to give effect in law to the testator’s intentions, the testator has to accept the phraseology selected by the draftsman without himself really understanding its esoteric meaning and in such a case he adopts it and knowledge and approval is imputed to him.’ Williams on Wills (9th ed), paragraph 5.1, cited in Re Stolkin: Greaves v Stalkin [2013].

to the court to add or subtract elements from the common law test, but it is unlikely that major, as opposed incremental, changes would be made without legislative provision.’ (TC, paragraphs 2.11, 2.81, and 2.84). The approach of the court will depend in part upon the complexity of the terms of the deceased testator’s will. ‘When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed. The reason for this requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland [2010]... Normally proof of instructions and reading over the will will suffice ... The correct approach for the trial judge is clearly set out in Gill v Woodall [2010]… It is a holistic exercise based on the evaluation of all the evidence both factual and expert.’ Lord Justice Lewinson in Simon v Byford [2014] (Court of Appeal).

The Banks v Goodfellow test comprises four limbs, each of which must be satisfied separately: (i) did the testator understand the nature of the act and its effect? (ii) did the testator understand the extent of the property of which he was disposing? (iii) was the testator able to comprehend and appreciate the claims to which he ought to give effect? (iv) was the testator’s mind affected by any disorder or delusion which was active in bringing about a disposal which the testator would not otherwise have made? Mental capacity is both time and task specific, and should not be assessed in relation to the deceased testator’s ability to make decisions in general. For a mental capacity claim to succeed it must be shown that the deceased lacked capacity for each particular decision, or type of decision at the time it was made. The relevant time at which capacity will be required for the will to be valid, is the time of execution of the will.

The duty of the expert It is the duty of an expert to help the court on the matters within their expertise, which is a duty owed by the expert to the court rather than to a party. CPR r.35.3 states, ‘(1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.’

‘The test in Banks v Goodfellow is not a medical test. It is a formulation by judges, to be applied by judges, of the necessary level of a testator’s understanding for his will to be valid. The question of testamentary capacity is a legal question that is to be resolved by the court: “… the issue as to testamentary capacity is from first to last for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise beyond the grasp of laymen, including, for that purpose, lawyers and in particular judges.” Key v Key [2010]. It is for this reason that the test was set out in layman’s terms and not medical terms…it is helpful to remember that, as Banks v Goodfellow is a common law test, the original test is capable of being developed by the court as modern needs and circumstances require…[The courts do not apply] the test in a rigid way, but in a way that takes into account changes in Society and psychiatric knowledge… There is no reason why factors from ss.2 and 3 MCA 2005 cannot be applied to develop the application of Banks v Goodfellow, within the existing framework of the test, where to do so the development would fit more closely with modern circumstances and knowledge…Ultimately it is open EXPERT WITNESS JOURNAL

Paragraph 2.4 of PD 35 further provides, ‘2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate. 2.3 Experts should consider all material facts, including those which might detract from their opinions. 2.4 Experts should make it clear – (a) when a question or issue falls outside their expertise; and (b) when they are not able to reach a definite opinion, for example because they have insufficient information. 2.5 If, after producing a report, an expert's view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.’ The rule against bias Expert evidence presented to the court should be, 69

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 70

and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation Whitehouse v. Jordan [1981]. ‘An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. An expert witness should make it clear when a particular question or issue falls outside his expertise. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one ... In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.’ Mr Justice Cresswell in The Ikarian Reefer [1993]. ‘What really matters in most cases is the reasons given for the opinion. As a practical matter a well-constructed expert’s report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not.’ Technip France SA’s Patent [2004].

practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014. 3.3 An expert's report must be verified by a statement of truth in the following form – I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.’ Conference with the expert Counsel can talk to the lay client’s expert about the issues to be addressed, the form of the expert report, relevant rules of court, and to familiarise the expert with the trial process, offering guidance to the expert on giving comprehensive and comprehensible evidence in technical areas. The conference is also an opportunity to: (i) check the expert’s education and expertise; (ii) assess whether the expert will make a good witness; (iii) assess how the expert is likely to withstand cross-examination; (iv) ask about anything counsel does not understand; (v) ask the expert to put the case against the lay client and explain how it can be answered; and (vi) identify and probe weaknesses in the opinion of the opposing expert, e.g. any objective limitations in his methodology and expertise.

Form and content of the expert’s report Paragraph 3 of PD 35 stipulates, ‘3.1 An expert's report should be addressed to the court and not to the party from whom the expert has received instructions.

Trial

3.2 An expert's report must: (1) give details of the expert's qualifications; (2) give details of any literature or other material which has been relied on in making the report; (3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based; (4) make clear which of the facts stated in the report are within the expert's own knowledge; (5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision; (6) where there is a range of opinion on the matters dealt with in the report – (a) summarise the range of opinions; and (b) give reasons for the expert's own opinion; (7) contain a summary of the conclusions reached; (8) if the expert is not able to give an opinion without qualification, state the qualification; and (9) contain a statement that the expert – (a) understands their duty to the court, and has complied with that duty; and (b) is aware of the requirements of Part 35, this EXPERT WITNESS JOURNAL

Introduction The aim of the advocate is to win within the rules of law, evidence, and professional ethics. ‘The means of winning is by being persuasive… Rightly or wrongly, adversarial advocacy is not really an enquiry into the truth. Perhaps the adversarial system should be about finding out what really happened. But it isn’t. Instead it creates a polite contest. The contest is this: while a judge will seek out the truth as best they can, the advocates use their skill to test the evidence, and to control the way the evidence emerges, and then comment in closing on whether a case has been proved to the necessary standard of proof.’ (Morley). ‘A trial is not an exercise designed to discover the truth. The rules of evidence are mainly designed to exclude. They often operate to prevent the evidence actually presented from showing the truth of the matter at all … The Judge is not an investigator but more like an umpire … What we are doing as advocates is trying to get the fact finder to arrive at an opinion, an opinion in our favour … our objective at trial is not the ultimate truth but an opinion in our favour.’ [Evans]. ‘The task of the advocate is to be argumentative, inquisitive, indignant or apologetic – as the occasion demands – and always persuasive on behalf of the person who pays for his voice … when making submissions to a judge … or cross- examining hostile witnesses, the advocate is required to entice, to flatter, [and within the boundaries of what 70

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 71

is ethically permissible to ridicule and] to insult, all in order to advance the cause for which he is instructed The professional function of the advocate is, essentially, one of supreme, even sublime indifference to much of what matters in life. He must advance one point of view irrespective of its inadequacies. He must belittle other interests, whatever their merits … It is not for counsel appearing in court to express equivocation, to recognise ambiguity or to doubt instructions. His client is right and his opponent is wrong. The wider consequences can be left to the judge. The fundamental role of the advocate is not to enlarge the intellectual horizon . His task is to seduce, to seize the mind for a predetermined end, not to explore paths to truth.’ [Advocates]. At trial, the strategic objectives of the advocate therefore include: (i) persuading the judge to rule in favour of the lay client through the admission and convincing presentation of expert evidence (which includes anticipating attacks upon the credibility of the expert and the value of his evidence);

requirement is specifically stated in rC3.2 and expanded upon in rC7.1-4. It would be an abuse of one’s role to make a statement or ask a question merely with the aim of insulting, humiliating, or annoying a witness (or any other person). If you have a different aim but your question or statement may have the incidental effect of insulting, etc, you will not be prohibited from asking it. [Barristers] must maintain the standards of honesty, integrity, and independence which run throughout [the provisions of the Bar Standards Board Code of Conduct for Barristers. Specifically] ‘In order to act with honesty and integrity, the advocate must not • knowingly or recklessly mislead anyone or attempt to do so • draft a statement of case, witness statement, affidavit or any other document which contains; - any statement of fact which is unsupported by his client or by his instructions - any contention which he does not consider to be properly arguable - any allegation of fraud, unless the advocate has (i) clear instructions from the client to make this allegation and (ii) reasonably credible material to establish an arguable case of fraud - any statement of fact which is not what he reasonably believes the witness would say if giving evidence orally (when drafting witness statements and affidavits) • encourage a witness to give evidence which is misleading or untruthful • rehearse, practice, or coach a witness on the evidence that they will give • communicate about the case with any witness (including the client) whilst they are giving their evidence, unless the opponent or court gives permission to do so • make or offer any payment to any witness which is contingent on the evidence they will give or the outcome of the case • propose or accept any fee arrangement which is illegal.’ [Ethics].

(ii) the exclusion of expert evidence relied upon by the other party; and (iii) undermining the credibility of the opponent’s expert, and the value of his evidence, to minimise the weight that the judge will attach to that expert’s opinions and conclusions. ‘But the Barrister knows that there are limits to acceptable advocacy, problems concerning the extent to which he can and should act as a mouthpiece of his client. He appreciates that there is a fine line between, on the one hand, brilliant advocacy which focuses on the strength of his case and, on the other hand, sharp practice and sham theatricals which mislead the court.’ [Advocates]. ‘Although it is typically the position in an adversarial system that the parties decide what evidence to present to the court, the advocate cannot knowingly present false evidence nor withhold material evidence (at least it would have to be disclosed to the opponent before the hearing)… Rule rC3 makes it clear that the advocate must not mislead the court, knowingly or recklessly, or attempt to do so… Also, the advocate must not make submissions to the court or any other sort of statement which he knows are untrue or misleading. If his client instructs him to do this, he must refuse. This could cover both legal and factual points. More plainly fact-based is the requirement not to ask a witness questions which suggest facts that the advocate knows, or is instructed by his client, to be false or misleading (rC6.1). This is most obviously demonstrated in cross-examination, where the client is putting his client’s case to an opposing witness … It is important not to confuse knowledge with belief. The guidance under these rules (gC6) makes it clear that the advocate does not need to turn detective or pretend to be omniscient; you do not have to believe that what your client tells you in his instructions is factually true … [Furthermore] the advocate must not abuse his role. This EXPERT WITNESS JOURNAL

The calling of expert witnesses Paragraph 8.15 of the Chancery Guide states, ‘The trial judge may disallow expert evidence which either is not relevant for any reason, or which the judge regards as excessive and disproportionate in all the circumstances, even though permission for the evidence has been given. The evidence of experts (or of the experts on a particular topic) is commonly taken together at the same time and after the factual evidence has been given. If this is to be done it should be agreed by the parties before the trial and should be raised with the judge at the PTR, if there is one, or otherwise at the start of the trial. Expert evidence should as far as possible be given by reference to the reports exchanged.’ Since April 1, 2013 the court has had the power to order at any stage that experts of like discipline give 71

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 72

is not accepted, so the opinions of an expert must be challenged if they are to be disputed. The purpose of cross-examination is to:

their evidence at trial concurrently, not sequentially, a procedure known as ‘hot-tubbing’. The experts will then be questioned together first by the judge and then by the parties’ advocates.

(i) elicit support for your own case, and to weaken your opponent’s case; and (ii) put your client’s case (including as to the fact or content of documents) to the witness to afford the witness the opportunity to respond to it.

Examination-in-chief The purpose of examination-in-chief is to get into evidence the facts necessary to prove your case. To achieve this purpose it is necessary to elicit each witness’s evidence in a clear and concise manner, and to anticipate, so far as is necessary and possible, any attack on that evidence likely to be made in crossexamination. When examining his own expert witness the advocate’s aims include: • ensuring that the Judge understand the expert’s evidence; • persuading the Judge of points essential to the case; and • anticipating the other side’s cross-examination and fortifying against that assault.

‘In general, if wishing to contest the opinion of an expert being called by our opponent, we can either contest the factual basis of the opinion, or we can contest the opinion itself. If the factual basis of the opinion is disputed, then we should be able to get the witness to agree in cross-examination that if the facts were as we contend, then his or her opinion would be different. If it is the opinion which we are contesting, on the other hand, then we will probably need to call our own expert witness… There are six critical questions we can ask about experts: 1. Expertise questions: How credible is E as an expert source? 2. Field question: Is E an expert in the field that A is in? 3. Opinion question: What did E assert that implies A? 4. Trustworthiness question: Is E personally reliable as a source? 5. Consistency question: Is A consistent with what other experts assert? 6. Backup evidence question: Is E’s assertion based on evidence?

The expert is obliged to state his qualifications in his report (PD 35, paragraph 3.2(1)). The usual practice at trial is for the judge to be referred to the relevant page in the report and for the advocate to then move on to the substance of the expert’s evidence. ‘In almost every civil case the expert will have written a report before the trial which will have been disclosed to the other parties pursuant to a direction of the court. This report should have been pre-read by the judge and examination-in-chief is usually relatively brief consisting of the advocate highlighting the important sections of the report and asking the expert to amplify or clarify ambiguities in the report and, sometimes, to comment on issues raised by the other side’s expert (albeit that this has usually been done in the expert’s joint statement) and/or issues that have arisen since he wrote the report. The bulk of the expert’s time in the witness box is usually taken up with cross-examination. In many civil cases (in particular those involving a single joint expert all of the expert evidence is given by report alone and, thus examination-in-chief does not arise.’ [Expert Evidence, paragraph 8-012].

… The expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs.’ [Palmer, page 148]. An expert may be: (i) challenged as to credit in relation to his opinion as he may in respect of facts; (ii) asked to justify or deny particular opinions expressed on other occasions (including evidence given in similar cases) to cast doubt upon the opinions he has expressed in the present case; (iii) asked about his attitude to the parties, i.e. if it is suggested that he is biased; and (iv) questioned about whether he is or was not in a physical or mental state to express a proper opinion.

The opinion of an expert, however correct, is of no use to the court unless it is clearly formed by inference from facts which have been or are to be proved in evidence. The expert must always, in expressing an opinion, indicate which facts he relies upon. Counsel calling an expert should therefore in examination-in-chief, ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination. ‘Unless a witness states in his evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless.’ Cadbury Schweppes v Durrell Lea [2007].

When cross-examining an expert witness the advocate’s aims specifically include: ‘(a) limiting the witness’s apparent expertise. Narrow the extent of his or her expertise/experience by showing that it is not directly applicable to the case in question or, perhaps, by contrasting it to the experience of your expert; (b) showing that the witness has had less involvement/ contact with the case than your expert;

Cross-examination Just as a party must in cross-examination challenge evidence of fact given in chief by a lay witness which EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 73

(c) showing your knowledge of the expert’s subject. Using your knowledge of the technical terms involved or the way in which any tests were carried out, the expert will be less inclined to avoid your questions. Contrast this approach with the way you may deal with an ordinary witness of fact by simplifying technical terms;

Re-examination The purpose of re-examination is to correct, clarify or expand matters arising out of cross-examination. No question may be asked in re-examination which does not arise out of cross-examination. The basic rule about re-examination is do not do it, i.e. ‘break glass in the event of emergency’.

(d) inviting the witness to define technical terms and sometimes in highly complex matters it may be necessary to invite the expert to use common language;

Conclusions Expert evidence will be required and accepted by a judge where: (i) the subject matter of the point in issue calls for expertise that is outside the knowledge and experience of the tribunal of fact;

(e) challenging his or her methods, for example showing that there were other tests that the expert could/should have carried out that might have produced a different result. Remember to check that the expert’s facts, calculations and methods do actually produce the results set out in his or her report and, if they do not, challenge the expert as this may undermine the confidence and credibility of the expert’s evidence;

(ii) the evidence will be helpful to the court in reaching a conclusion; (iii) there is a body of expertise in the area in question; and

(f) inviting the witness to agree with the propositions that form the basis of your expert’s opinion – he or she is unlikely to disagree with everything your expert says, and you should know from your own expert those areas that are in dispute. Remember to ‘put your case’ to the expert by inviting him or her to deal with your expert’s methods/opinions/conclusions;

(iv) the expert is a suitably qualified person in the relevant field of knowledge. ‘Just as a lawyer cannot succeed without developing a comprehensive theory of the case, neither will an expert be effective without a viable, articulated theory. An expert’s theory is an overview or summary of the expert’s entire position. The theory must not only state a conclusion, but must also explain, in common sense terms, why the expert is correct. Why did she settle upon a certain methodology? Why did she review particular data? Why is her approach reliable? Why is the opposing expert wrong? In other words, the expert witness must present a coherent narrative that provides the trier of fact with reasons for accepting, and it is hoped, internalising, the expert’s point of view… In cases involving duelling experts there will be competing theories. Properly prepared and presented, each expert will attempt to explain to the trier of fact why her theory ought to be accepted. It can be particularly effective, therefore, to ask your expert to comment on the opposing expert’s work.’ [Lubet].

(g) inviting the witness to agree that, in his or her field, legitimate differences of opinion frequently occur between qualified experts. This shows that the witness is not infallible and that his or her evidence is ‘opinion’ only; and (h) using hypothetical facts to test the strength of the expert’s opinion. Testing whether a different interpretation of the same facts or a slight change in those facts would affect the expert’s opinion.’ [Advocacy, paragraph 22.7.1]. Paragraph 5 of PD 35 provides, ‘Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents). Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the crossexamination where it appears to be in the interests of justice.’

An advocate who can state the opposing expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions better than the opponent’s expert witness can, is standing on the mountain top and looking down, for the purposes of: (i) distinguishing his own expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions; and

Cross-examination of an expert witness is a hazardous undertaking. ‘A witness under cross-examination does not want to agree with you. He will fight tooth and nail to confound you. He will misunderstand your questions. He will provide evasive answers. He will try to use your questions as an excuse to repeat the deadly features in his testimony which destroy your case. Unlike TV, a witness has no script which must be followed. He will try everything to wriggle out from under your questions. Every question in cross-examination is an invitation to disaster. It is an opportunity for the witness to hammer you and your case. So your first thought is don’t do it. Always start from the point of view: if I can avoid it, I will.’ [Morley]. EXPERT WITNESS JOURNAL

(ii) conducting a devastating ‘top down’ forensic critique of the opposing expert’s evidence, in order to: cast doubt; demonstrate falsity; tarnish; ridicule; and comprehensively devalue the weight to be attached to that evidence. ‘Research, as much as technique, lies at the heart of expert witness cross-examination. Counsel cannot conduct an adequate cross examination without first thoroughly investigating all of the technical aspects of the expected testimony. It is often said that you cannot cross-examine an 73

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 74

expert without first becoming an expert yourself. Moreover, your research should extend beyond the expert’s subject matter area and into the witness’s own professional background … There is nothing so effective as impeaching an expert with his own prior assertions.’ [Lubet].

are as follows: (i) the parties (through their solicitors) obtain and jointly pay for an inventory and valuation of the estate assets, i.e. to determine the size of the estate pie (‘Valuations’); (ii) the solicitors acting for each party take instructions from their respective clients about their own commercial needs preferences and priorities (a ‘Commercial analysis’);

ADR – Recent developments Technical preparation is of benefit and value whether the case proceeds to trial or is settled through ADR. The CPR Rules Committee are currently considering rule changes to implement Early Neutral Evaluation (‘ENE’) in a Chancery setting, as recommended in paragraphs 5.6 to 5.16 of the Chancery Modernisation Review. Recently in Seals & Ors v Wilson [2015] (an Inheritance Act claim brought in the Chancery Division of the High Court where an attempt at mediation had stalled), Mr Justice Norris stated,

(iii) instead of appointing a mediator the parties jointly appoint a Barrister TEP to act as a settlement ‘Guide’, who: (a) undertakes a fixed fee preliminary evaluation of the legal merits of the claim, litigation risks, and costs, and sets out his conclusions in the form of a grid/schedule, i.e. a legal risk analysis (‘LRA’); and (b) develops a commercial / arithmetical (i.e. number crunched) methodology for settling the dispute based upon the: - Valuations; - Commercial Analysis provided by each party’s solicitor; and - LRA, (the ‘Settlement Framework’), which is circulated by e-mail amongst the parties before they meet to settle the claim.

‘… it is highly commendable that the legal representatives for the parties have proposed as a way forward, and the court has been invited to undertake, an Early Neutral Evaluation of the case. The advantage of such a process over mediation itself is that a judge will evaluate the respective parties' cases in a direct way and may well provide an authoritative (albeit provisional) view of the legal issues at the heart of the case and an experienced evaluation of the strength of the evidence available to deploy in addressing those legal issues. The process is particularly useful where the parties have very differing views of the prospect of success and perhaps an inadequate understanding of the risks of litigation itself.’

(iv) In a fixed-fee meeting (e.g. of up to one day), the parties’ solicitors, with or without their clients in attendance, and with full authority to settle or access to instructions over the telephone, meet with the Guide to explore and construct overall terms of settlement. The meetings take place in separate rooms in a neutral venue, e.g. at the Barrister’s Chambers.

Another ADR method, recently innovated by the author, is ‘Guided Settlement’. This process has its roots in both ENE and mediation, but is neither because the settlement ‘Guide’ (e.g. a neutral Barrister TEP jointly appointed by the parties in a contentious probate, trust, or Inheritance Act claim) neither: (i) determines any issues; nor (ii) acts as an evaluative mediator.

(v) Using the Settlement Framework, the Guide works with each party to jointly generate settlement proposals to: (a) reduce the issues in dispute (i.e. remove them from the claim equation); and (b) create momentum, leading to an overall deal.

The role of the Guide (as a technically proficient specialist practitioner and creative commercial problem solver) is to: (i) analyse the legal merits of the claim and inherent litigation risks;

Like mediation this may require more than one meeting.

(ii) design a commercial settlement methodology; and

(vi) Unlike a mediator, the Guide uses his technical knowledge of the legal issues in dispute and problem-solving skills to create inventive settlement proposals for which neither side will lose face if rejected, i.e. because they are the Barrister’s ideas, and if agreed, can be claimed and owned as the product of a joint commercial collaboration between the parties.

(iii) help the parties to communicate, so that they can use the methodology (with crunched figures based upon independent asset valuations) as a framework to explore and construct overall terms of settlement. Throughout the process the Guide thinks freely (including outside the box) and generates creative solutions, i.e. acts as a neutral creative problem solver who has no partisan loyalties or personal stake in the dispute.

Where Guided Settlement is entered into following the instruction of experts, the steps would need to be modified to enable the Guide to receive experts’ reports before developing a methodology. If experts have not been appointed, the parties could agree

In e.g. a probate dispute, the basic procedural steps EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 75

upon the appointment of a single joint-expert to assist the Guide.

The Devil’s Advocate, by Ian Morley QC, Sweet & Maxwell (‘Morley’).

Bibliography

The Golden Rules of Advocacy, by Keith Evans, Oxford University Press (‘Evans’).

Advocacy, by Robert McPeake, Oxford University Press (‘Advocacy’).

Theobald on Wills, by John G Ross Martyn, Charlotte Ford, Alexander Learmonth, and Mika Oldham, Sweet & Maxwell (‘Theobald’).

Advocates, by David Pannick, Oxford University Press (‘Advocates’).

Williams on Wills, by Francis Barlow, Christopher Sherrin, Richard Wallington, Susannah Meadway, and Michael Waterworth, Lexis Nexis Butterworths (‘Williams’).

A Practical Approach To Effective Litigation, by Susan Blake, Oxford University Press (‘Susan Blake’). Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyers, by The British Medical Society and the Law Society, The Law Society (‘AMC’).

About the author Carl Islam is a registered public access Barrister who can be instructed directly by members of the public (including executors) without the involvement of a solicitor. Carl practises as a door tenant in the Chambers of The Rt Hon Sir Tony Baldry, 1 Essex Court, Temple, London EC4Y 9AR (www.1ec.co.uk), and specialises in will trust and inheritance disputes, and disciplinary and regulatory proceedings. For testimonials and more information about Carl’s practice, publications, and courses, please visit www.ihtbar.com.

Expert Evidence: Law & Practice, by Tristram Hodgkinson and Mark James, Sweet & Maxwell (‘Expert Evidence’). Inheritance Act Claims, by Sidney Ross, Sweet & Maxwell (‘IAC’). Modern Trial Advocacy, by Steven Lubet, National Institute for Trial Advocacy (‘Lubet’). Probate Disputes And Remedies, by Dawn Goodman, Paul Hewitt, and Henrietta Mason, Jordans (‘Probate Disputes’). Professional Ethics, edited by Robert McPeake, Oxford University Press (‘Ethics’). Tax-Efficient Wills Simplified 2014/2015, by Carl Islam, Management Books 2000 (‘Carl Islam’).

To arrange an initial fixed fee meeting in London, please telephone the Clerks at 1 Essex Court on 020 7936 3030, or email clerks@1ec.co.uk.

Testamentary Capacity, by Martyn Frost, Stephen Lawson, and Robin Jacoby, Oxford University Press (‘TC’).

Dr Charles Essex Consultant Neurodevelopmental Paediatrician MB, ChB, FRCPCH, DO, DCCH, Cert Ed 30 years experience in paediatric neurology, neurodevelopment, learning difficulties, special needs, head injuries, and child protection. Experienced and special interest in cerebral palsy (causation and condition and prognosis), epilepsy, autism, victims of road accidents, child development and child protection. I prepare reports as a single joint expert in child protection cases, alleged non-accidental injury, care proceedings, failure to thrive and factitious and induced illness [FII] with frequent Court experience in giving evidence in these cases. Regular clinics held in paediatric neurology, genetics, neonatal follow up and ophthalmology (all paediatric). I am a member of the British Paediatric Neurology Association (BPNA). I prepare reports for plaintiffs and defendants, reports for CICA and COP3 reports.

Contact: Mob: 0797 104 8544 Email: charles.essex@virgin.net Web: www.drcharlesessex.co.uk Address: Suite 115, 41 Oxford Street Leamington Spa, Warwickshire CV32 4RB

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 76

Resolving Dilapidations Dispute by Christopher Sullivan, Partner, Malcolm Hollis Martin Burns RICS, Head of ADR Research and Development and maybe offer a new tenant an inducement for taking it, and perhaps a schedule of condition. On the other hand, the landlord may undertake some work to ready the property for the market. This comes at a cost. Who is to pay? When leases end, and a landlord carries out works on the property before putting it back on the market, he may ask the former tenant to foot the bill. The landlord might issue a claim for damages, known as a dilapidations claim. This can be a recipe for a dispute.

It is a fact of life that disputes involving commercial and residential property will happen. When they do, the best thing parties to those disputes can hope for is quick resolution at minimum cost. Fortunately, many disputes are settled before lawyers get involved and legal proceedings are issued. However, a significant number of disputes can escalate to legal proceedings, which are invariably slow and scarily formal. Litigation is also immensely expensive, and the financial costs can often outweigh the value of a claim.

It is evident that many surveyors who routinely practice in dilapidations have not been near a courtroom. It could be argued that this is testimony to their ability to prepare fair and reasoned claims, or that they are very good at defending claims by applying specialist expertise and compelling arguments to demonstrate that a claim is overstated.

One area where disputes are frequent is in respect of dilapidations. When a landlord receives a property back from a tenant he will naturally want to re-let it. He could possibly let the property in the condition and configuration he finds it in when he takes it back, EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 77

in air conditioning. A ban on certain refrigerant used in most systems that are 15 years old or more is resulting in requirements on landlords to replace whole systems, even those which are still working effectively.

Most dilapidations practitioners are RICS accredited and are very efficient at reaching good commercial settlements. If a claim is accurate, and both surveyors are suitably proficient in the official formalities relevant to these matters, then the claim can often be settled simply by exchanges of letters and a draft Scott Schedule.

Also, regulation in the form of the Minimum Energy Efficiency Standards (MEES), restricts the sale or letting of energy inefficient buildings. This is beginning to impact on the dilapidations sector because badly performing buildings now need to be significantly altered and improved to meet new minimum standards.

However, it seems the number of dilapidations claims, and thus disputes, are likely to rise in the near future as a result of a number of factors. First, changes in the commercial market have seen the length of leases shorten considerably. In the 1980s and 1990s a lease would typically be 25 years in length. The average now is just over 5 years. Shorter term leases will inevitably lead to increased numbers of deliberations about dilapidations, and ultimately more disputes.

These issues are inevitably leading to a greater number of disputes, as parties grapple with market pressures and new legislation, and their influences on the dilapidations sector. A dilapidations claim is to all intents an allegation of breach of contract and the costs element to it represents a claim in damages. It might be natural therefore to refer a dilapidations dispute to litigation. But it is not necessarily the case that dilapidations disputes lend themselves to resolution by legal process. Very often, the issues at the heart of dilapidations disputes are highly technical. They are thus ideal for a form of ADR that involves the appointment of a third party neutral who is a credible expert in this specialised field.

Secondly, there is increasing evidence that the property market is once again moving in an upward cycle. When this happens, the number of dilapidations claims tends to increase. Landlords will progressively look to improve their buildings, and make them more marketable, and thus disputes over dilapidations claims tend to increase. Thirdly, we are beginning to see the effects of a tightening of regulations concerned with CFC's used

RICS Expert Witness Training This training will equip experts with the knowledge, practical skills and conﬁdence to prepare for and conduct an expert meeting eﬀectively.

What will you learn? • The benefits of using an agreed agenda • How to prepare using the case preparation model • Using the topic box model to structure the meeting and as a way to effectively question the other expert • The reasons for areas of agreement and disagreement • How to work effectively towards the Joint Statement and how to draft it.

To find out more: t 024 7686 8584 w rics.org/expertwitnesstraining e drstraining@rics.org

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 78

parties are unable to reach a settlement an Expert can be instructed to provide an impartial and binding assessment of the diminution in value in the landlord's reversionary interest. This would establish a cap on the contractual claim, in accordance with the principles of Section 18 of the Landlord and Tenant Act 1927.

The rules which regulate the civil justice system, the Civil Procedure Rules, actively encourage parties to try and find solutions to their disputes without the need for intervention by the courts, and to consider and use ADR prior to embarking on substantive legal proceedings. There is an established pre action protocol for dilapidations along with RICS guidance. Both of these encourage ADR, and recent judgments have seen heavy costs penalties imposed for a failure by parties to reasonably consider and use ADR.

The parties could agree to be bound by a final and binding decision of their Expert at a fixed time after a lease has expired. In the scenario the Expert will normally invite representations from the parties, and make his own enquiries. The decision of the Expert will ultimately be a mix of his assessment of evidence and argument submitted by the parties, the results of his own investigations into the issues and the application of his personal expert knowledge on the subject of dilapidations.

The Royal Institution of Chartered Surveyors (RICS) is leading the way in trying to help parties to resolve matters early, and reduce the numbers of dilapidations disputes going to court, by introducing a number of new measures. Amongst other things, such as the imminent publication of an updated Dilapidations Guidance Note, RICS is encouraging parties to use a form of ADR called Independent Expert Determination to resolve disputes. A real benefit of this process is that the person who decides the dispute is a genuine expert in the field of dilapidations. This is important because subject matter expertise gives credibility to the process, and parties to a dispute can be confident that their expert will produce a fair and balanced determination.

An agreement to use Independent Expert Determination, and the process the parties wish to follow, can be set out in the lease. Alternatively, parties can agree to refer a matter to an Expert by ad hoc agreement once a dispute has crystallised. Note, however, that agreeing anything at a late stage in a dispute, such as a dispute resolution mechanism, can be a challenge. Any party involved in a dilapidations dispute would be wise to seek early professional advice, particularly where the dispute appears to be fractious from the outset and may be on the first steps to the courtroom. Using a form of ADR, such as Independent Expert Determination can result in significant savings in time and costs. If parties agree to use it, then a major obstacle to a quick resolution at minimum cost will have been overcome. ■

Independent Expert determination, like any other ADR scheme is a consensual process. An Expert is required, naturally, to independent. In all other respects the process is adaptable. He can be instructed by the parties to provide a neutral evaluation on the contractual claim, and/or assist negotiations and encourage settlement. If the

TRURO • PLYMOUTH • EXETER

Insepes ltd

Healthcare • Commercial • Licenced Property • Leisure

Chartered Land Surveyors • Architectural Design • Party Wall & Supervision

Boundary Dispute and Expert Witness Surveyors.

• Refurbishment

CPR part 35 reports, Determined Boundary Plans. A cost-effective, high-quality enhancement to the service you offer your clients. 792 Wilmslow Road, Manchester M20 6UG Tel: 0161 286 0795 Email: kevin@insepes.co.uk Web: www.insepes.co.uk

• Rating

• Development • Landlord & Tenant

• Project Management • Lettings

• Planning

• Surveys

• Acquisitions

• Management

• Valuation

• Sales

• Compulsory Purchase

t: 01752 261811 w: www.vickeryholman.com e: nholman@vickeryholman.com e: dvenn@vickeryholman.com Regulated by RICS

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 79

Negligence Claims as Pervasive as Japanese Knotweed â&#x20AC;&#x201C; Surveyors Take Heed by Mark O'Hara, Bsc MRICS Winter is approaching and it may be easy to overlook a problem that can result in professional negligence if you fail to report the presence of knotweed in your survey.

resembling bamboo, and can grow to a height of 2-3m, with the rhizome (root system) spreading outwards under the surface for up to 7m from stems visible above ground.

Prior to 2012 surveyors avoided liability by claiming ignorance of Japanese knotweed or the damage that it can cause. This all changed when in 2012 the Royal Institution of Chartered Surveyors published guidance on 'Japanese knotweed and residential property'.

Japanese knotweed is a major problem to property, due to its ability to damage structures and spread rapidly from small fragments. The Environment Agency describes as "indisputably the UK's most aggressive, destructive and invasive plant". The risk to the surveyor report is the absence of plants in the winter when they die back and are not obviously apparent. Individual plants can cover large areas of land, joined up below ground by an extensive rhizome network.

How do you recognise a Japanese knotweed? The plant forms dense stands of tall canes up to 3m (10 feet) during summer, which die back in autumn. It is an invasive perennial weed that is thought to have been introduced to Britain in the late 19th Century as an ornamental plant. During spring, the plant produces rapidly growing light red shoots EXPERT WITNESS JOURNAL

How Japanese knotweed spreads In Britain Japanese knotweed spreads from when small pieces of the plant or rhizomes (underground 79

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 80

root-like stems) are broken off. One piece of rhizome or plant the size of a fingernail can produce a new plant.

• Potential loss of sale if the weed is found during the buyer’s survey Legal obligations Landowners are under a statutory duty to take steps to control and eradicate Japanese knotweed. All parts of the plant and any soil contaminated with it are classified as controlled waste and must be removed and disposed of by a licensed waste control operator. If you have invasive plants on land that you own or occupy, you must comply with specific legal responsibilities, including: • spraying invasive plants with herbicide • cutting and burning invasive plants • burying invasive plant material on site • disposing of invasive plants and contaminated soil off site

Pieces of plant or rhizome can easily be transported to a new location without awareness by: 1. water - if the plant is growing close to a river or stream 2. moving soil which contains plant pieces 3. dumping such as fly-tipping the removed stems Not only is the surveyor required to inspect the property but must also consider the adjoining land. Knotweed does not recognise boundaries and needs to be considered carefully. The Cost to the homeowner Regrettably, the slightest trace of Japanese knotweed on the property – even on nearby on the street – is a reason to be refused a mortgage

Japanese knotweed is not on the increase but awareness of this plant is. For this reason and particularly in the coming months surveyors must be diligent.

• Treatment costs. The removal, eradication and disposal of the weed may be expensive but given that the presence of it can impede the sale of your property and/or affect the value, a least-risk approach would be to have it removed by licensed contractors and properly disposed of.

Mark O'Hara, Bsc MRICS References The Environment Agency’s Knotweed Code of Practice provides guidance for managing Japanese knotweed and includes information on knotweed identification and waste disposal. Available at www.environment-agency.gov.uk

• Refused lending if the mortgage company suspects there is the presence of the weed; and

Tel: 0161 737 0111 Fax: 0161 737 0555 Mob: 07831 292 529 Email: gk@longdencook.com Web: www.longdencook.com Head Office: Victoria Buildings, 9-13 Silver Street, Bury BL9 0EU Manchester Office: King Street Buildings, 16-18 Ridgefield, Manchester M2 6EG

Commercial & Residential Valuation We have a track record for successfully handling rent review and lease renewal negotiations. In addition, we provide robust and well researched expert witness reports for cases such as; Boundary Disputes Restrictive Covenants Valuation Disputes Commercial & Residential Block Management Landlord and Tenant/Compensation, Rent reviews Lease renewals Dilapidations Compulsory purchase matters Valuations for Lititgation purposes (e.g. matrimonial/family), Surveyor's Negligence: Faulty valuations, General matters, Building Society valuations, Boundary disputes.Willing to undertake Professional Negligence cases. Member of the Royal Institution of Chartered Surveyors (1992)

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 81

Conflict of Interest Or Just a Different Perspective by Marisa Shek, BA (Hons), Dip Arch, RIBA, Cowan Architects A conflict of interest is normally portrayed in a negative way, as it should be. However it is of interest to all those involved in Expert Witness work to consider the parameters of what can be considered a conflict of Interest and to ensure that those parameters are not contravened if the Expert is requested to extend their advice and expertise beyond the litigation.

from giving evidence. The key is whether the Expert’s opinion is independent of the parties and the pressures of the litigation. The Guidance states “The Expert should not leave undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the court’s decision. The conflict of interest could be of any kind, including a financial interest, a personal connection, or an obligation, for example, as a member or officer of some other body. But ultimately, the question of what conflicts of interest fall within this description is a question for the court, taking into account all the circumstances of the case”.

Part 35 of the Civil Procedures Rules state that Experts must not be involved in any conflict of interest and that any potential for conflict should be fully disclosed. This is not always the case in practise and has lead to potential for miscarriages of justice.

Bring in the Expert In the judicial world an Expert can be defined as anyone with knowledge of or experience in a particular field or discipline beyond that expected of a layman. An Expert Witness is an expert who makes this knowledge and experience available to the Court to help clarify the issues in a case and thereby reach a sound and just decision. But implicit in the name and role, must also be the honesty and integrity to be totally independent in the expertise provided, irrespective of its effect and outcome.

A good example By way of example, the Court of Appeal in Toth -vJarman (2006 EWCA Civ 1028) has given guidance on how Expert Witnesses should handle potential conflicts of interest. This was an appeal by a Claimant in a clinical negligence claim. The Defendant was a general practitioner who treated the Claimant’s son. Despite treatment, the son died and the Claimant sought damages for psychiatric injury based on the Defendant’s alleged negligence. The Medical Defence Union (MDU) was acting for the Defendant and instructed an Expert to report. The Expert’s evidence was favourable to the Defendant, and at trial it was preferred by the Judge to the Claimant’s Expert’s evidence. However, on appeal, the Claimant claimed there had been material non-disclosure by the Expert of a conflict of interest arising out of the fact that the Expert was a member of the Cases Committee of the MDU at the time the report was written. The Cases Committee is the part of the MDU that takes decisions on whether to defend any given action.

A conflict for everyone A conflict of interest can arise when a person or organisation is involved in multiple interests (financial, emotional or otherwise) one of which could possibly corrupt or influence the motivation of the individual or organisation. Such is the seriousness of these implications, that most companies and professional bodies tackle the questions clearly in their codes of practice or professional conduct. For example the Royal Institute of British Architects (RIBA) places Integrity as its first principle stating that it “expects its Members to act with impartiality, responsibility and truthfulness at all times in their professional and business activities”.

The Court of Appeal explained that a conflict of interest does not automatically disqualify an Expert EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 82

RIBA’S principles of conduct 1.1 The Royal Institute expects its Members to act with impartiality, responsibility and truthfulness at all times in their professional and business activities. 1.2 Members should not allow themselves to be improperly influenced either by their own, or others’ self-interest. 1.3 Members should not be a party to any statement which they know to be untrue, misleading, unfair to others or contrary to their own professional knowledge. 1.4 Members should avoid conflicts of interest. If a conflict arises, they should declare it to those parties affected and either remove its cause, or withdraw from that situation. 1.5 Members should respect confidentiality and the privacy of others. 1.6 Members should not offer or take bribes in connection with their professional work. These themes are recurring and embedded in the Codes of Practice of many professional bodies such as the British Medical Association, the General Medical Council and the College of Occupational Therapists. They also go further, with the BMA stating that the ‘perception’ is as damaging as the reality. The General Medical Council says “You must not ask for or accept – from patients, colleagues or others – any inducement, gift or hospitality that may affect or be seen to affect the way you prescribe for, treat or refer patients or commission services for patients”. One of the world’s largest international associations of occupational therapists emphasises that “ethical action goes beyond rote compliance with these Principles and is a manifestation of moral character and mindful reflection”.

morays and ethics of their professional body that should place their integrity above suspicion. Could it be argued therefore that this makes such a person well placed to provide additional advice to the Claimant to the benefit of both them and the Court. Ronald Reagan said that “Peace is not absence of conflict but the ability to handle conflict by peaceful means” so that if everyone, on both sides, is aware and satisfied with the arrangement, there should be no undue influence and the Expert’s integrity is maintained. Perspective and nuance Some conflicts of interest are so obvious as to make it difficult for a Court to see an Expert Witness’ opinion as independent but there are situations where the perspective changes. Nuances in a conflict of interest certainly exist but should certainly not be taken as far as Silvio Berlusconi, who magnanimously claimed, “If I, taking care of everyone’s interests, also take care of my own, you can’t talk about a conflict of interest”!

An explosive combination The combination of medicine and the law can lead to an explosive situation if there is an unseen conflict of interest and obviously the role of the Expert Witness in Court can be a hot spot, so that however appropriate the evidence, it can be tainted if there is not full disclosure.

An Expert Witness sits as part of the Litigation Team of barristers, solicitors and experts to advise the Court, but, depending on their area of expertise may be asked in parallel by the Deputy’s Team to assist the Claimant with additional guidance and help. An example of this might be assistance in acquiring and adapting a suitable property.

But are there occasions where the potential benefits of being able to tap into the extensive experience of an Expert to help solve a Claimant’s problems should be taken into account? If so, it follows that a process to remove any perception of conflicted interest becomes paramount. If we examine this role carefully and pinpoint the potential for conflicts of interest to arise, there may be examples where, by defusing the potential for a conflict with an appropriate disclosure, the end result is beneficial for all parties. Can the instructing solicitor square the circle in such situations? If the parties are fully aware the key probably lies in ensuring the completeness of the disclosure and an explicit openness.

It needs to be assessed as to whether or not it is ethical that such a person should be able to provide such information. It’s essential to look at what can be achieved from this position. From their position in the Litigation team, such an Expert will not only be fully conversant with the details of the case but also with the needs of the Claimant making the claim; perhaps better positioned than other Architects to provide continuing advice to the Claimant on their housing needs.

Any Expert Witness’s responsibility is completely to the Court and this is coupled with the strength of the

Taking this example further, the Expert Witness being an architect who also understands the litigation

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 83

process and the legal system from the inside, is in an advantageous position for the Claimant to be pragmatically advised rather than by a local, non- specialist, architect, who is unfamiliar to the ramifications of the case and the general constraints of the litigation process. This is to the advantage of both parties and ultimately to the Court. The litigation expert knows that they will have to justify any expenditure to the Court and that the parameters that guide them are therefore ring-fenced, whereas the local architect is not obligated in the same way. The Claimant is their only client and they will not be aware of the legal constraints. They can happily fit ‘gold-plated taps’ if asked, but the litigation expert will know and advise that the expenditure authorised by the Court is unlikely to allow it, leaving the Claimant to pick up the bill.

In summary, we can see that so long as everyone on both sides of the Court is aware of any potential conflicts of interest, there may be times when it can sometimes be in the best interests of the Claimants for an Expert Witness to have a foot in both the Litigation and Deputy’s camp so long as full disclosure allows the proceedings to continue to comply with Part 35. ■ Marisa Shek is an Expert Witness at Cowan Architects, who are an established, award-winning practice that specialises in the healthcare and disability markets making it one of the country’s leading proponents of inclusive design. This expertise has led to five of its architects acting as Expert Witness on disability accommodation issues for the High Court. They have also been involved in a number of cases involving litigation support and dispute resolution from building defects.

Disclosure is Key The potential for conflicts of interest for Expert Witnesses should be a concern for the litigators and experts alike.

Although mainly in the UK, this specialism has taken their experts to Ireland, France, Spain, Italy and the United States.

Disclosure is key in any potential or perceived conflict, so that all parties can make a judgement for themselves as to who is best placed for the task in question. Indeed, one of the recommendations made by Lord Woolf in his Final Report is that an Expert’s report should end with a declaration that in it the Expert has drawn to the attention of the court any matter that affects the validity of the opinions he has expressed therein.

Cowan Architects 9 - 10 Old Stone Link, Ship Street, East Grinstead West Sussex RH19 4EF Tel: 01342 410 242 Email: pim@cowan-architects.co.uk Web: www.cowan-architects.co.uk

Expert Witness Services: For a wide range of Structural Engineering, Highway, Trafﬁc and Health and Safety matters.

Full Building Surveying Services Residential, Commercial & Industrial

• • • • •

Building Pathology; Defects Analysis & Diagnosis

Over 30 years including analysis of a city's annual accidents and comparison with national data. Fully conversant with highway design and maintenance standards.

HEAD OFFICE 60 St. Enoch Square Glasgow G1 4AW 0141 221 9266 Also at Edinburgh, Paisley & Dundee

ross-liddell.com

EXPERT WITNESS JOURNAL

RTA Collision Investigations Structural Inspections Slips and Trips Claim Highway Defects Accident / Incident Investigation

E: enquiries@novo55.com T: 01670 542 850 W: www.novo55.com AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 84

Trees: When Quality is more important than Quantity by Mark Chester - Cedarwood Tree Care The value and importance of trees, especially within the urban environment, is widely recognised and appreciated. Indeed, London Mayor Boris Johnson has set ambitious targets for increasing green spaces by 5% by 2025, including the planting of some 10,000 extra trees. This is to be welcomed. Indeed, once this target has been met, he wishes to go further, with another 5% by 2050. Trees are important. However, I recognise the importance of looking behind the headline numbers to what is being achieved.

much longer. In terms of numbers, planting the score of trees may indicate greater activity. During my time in this role, I experienced dry springs, and it takes a tree particularly suited to the dry, warm conditions to be able to thrive. Many people like smaller trees such as cherry and apple with their spring blossom. However, shallow-rooted, these trees are ill-equipped for our modern weather patterns. The larger Lime trees and London Planes, which take space but make a positive contribution to the quality of air, and can last for several centuries.

There is a principle of Right Tree Right Place. This principle requires a careful assessment of locations and the tree to be planted to ensure it is suitable for the setting. Back in the â&#x20AC;&#x2DC;noughtiesâ&#x20AC;&#x2122;, I was managing trees for a large Midlands local authority. My area included housing estates dotted with numerous ornamental trees, which seem to be so popular in such settings. It was becoming very apparent that many of these popular ornamental specimens, which had been planted back in the 1970s and 1980s, were struggling to cope with the harsh urban conditions being faced more recently. There may have been quantity in planting; there was a distinct lack of quality.

There are proposals to build a motorway service station to support the M42 in Warwickshire. Part of the proposed site is covered by ancient woodland. This is woodland which has existed continually since 1500, ie the days when Henry Vlll was on the throne. It is valuable, and irreplaceable. The developer has sought to reassure concerned parties with the statement that they would be planting more trees than need to be felled to accommodate the services, parking and infrastructure. This comment suggests that they really havenâ&#x20AC;&#x2122;t appreciated the asset they have. To put this in to context, the late Professor Oliver Rackham identified that a single 500-year-old oak tree is ecologically more valuable than one hundred 400-year-old oak trees. These trees are not readily replaceable.

A single specimen of one of the larger trees, such as London Plane, Beech, Lime or Birch, allowed time and space to mature, can contribute more than a score of smaller, ornamental trees. It can also live for

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 85

How often do we hear of developments with tree planting schemes where the numbers of trees being planted are presented as a headline figure? Road widening is often accompanied with the news that thousands, even millions of trees, are to be planted as part of site works. Sounds impressive, until it transpires that many of these are one year old ‘whips’, typically a metre in height. There is nothing wrong with such plantations as landscape features. There is a different, however, with them and planting specimen landscape trees. One element that can be overlooked is that, as part of the management of these features, many of the trees will need to be felled to reduce the density as they become larger.

improve the situation. Our knowledge of how trees can cope with the harsh urban environment, and which species are better equipped is informing planting selections. Subterranean infrastructure can enable soil to be stored in the area around a tree without the risk of compaction or subsidence. I was able to apply this practically to a development involving car parking, again with a target for trees being planted (by the local authority), in part to replace some being felled to facilitate construction works. By using subterranean infrastructure and carefully positioning suitably selected trees, a quality scheme was provided which met the requirements of the local authority without compromising the number of parking places.

I have been involved with the management of several woodland sites, within the context of exploring development potential. One aspect which they have in common is natural regeneration which is resulting in such dense vegetation that ground cover is shaded out and there is a lack of wildlife and biodiversity. Plantations tend to have little diversity, and the crowding often results in etiolation, with tall, thin trunks ill-equipped to sustain the tree in to the future. In such cases, the best option is to go in with the saw and start to cut down some of the individual saplings. With fewer trees, there is more space for those remaining to develop further and opportunity for ground cover plants, which provide diversity both in terms of species mix and wildlife habitation, to become established.

When trees are planted in to such infrastructure, the cost of the installation can be considerable, and may be in the tens of thousands of pounds. It is an opportunity to plant high quality specimen trees. Sadly, without care, considerations such as species selection and suitability to the site can be overlooked, compromising the success of the scheme. One scheme I know of, around a prestigious office complex in a coastal setting, involved planting Beech trees as they complemented the architecture. However, Beech dislikes salty air, and the trees were all dead within the first year following planting. When I am preparing a planting scheme, I seek to use a variety of species (if one species is used for more than 10% of the total, there is a tree health risk). I look

It is better to plant fewer trees and see them established, than to plant many only for them to suffer post-planting and to decline. One of the problems with ‘headline’ planting is that there may be little consideration for the longer-term management of the trees. I survey trees on a site in my adopted county of Herefordshire, where there has been considerable investment in regeneration in recent years. Work has not been done on a shoestring, and some substantial trees have been planted as part of site landscaping works.

Principle Consultant

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

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

This included planting a small group of Birch trees within raised containers. The trees were delivered in wire cages, which help to keep the soil around the roots secure. These cages need to be removed prior to planting. Not only had the cages been left in place, but the gravitational effect of water in raised containers, which requires more regular watering, had been overlooked. Without the required irrigation, the trees declined and were dead within two years of being planted.

He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases. Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness."

So often, when we plant trees in urban situations, they are ill-equipped for the harsh environment that they will face, with little soil, lack of space, insufficient or excess water and high temperatures. However, much work has been done in the past decade or so to EXPERT WITNESS JOURNAL

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

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 86

for trees whose qualities will enhance the immediate area, whether through air quality, shade, shelter or screening. If a tree (such as Alder) has the potential for height and dense shading, it should be planted away from people’s homes, otherwise it could have a negative impact on people’s lives.

Despite offers by the developers to plant replacements elsewhere, these trees became a high profile cause celebre, to the extent that the road scheme which threatened them was altered to minimise the number which needed to be felled, and replacements were planted in the immediate vicinity.

When I am asked for advice in connection with trees on potential development sites, there is often the assumption that many of the trees need to be retained, and this will prevent development. The reality is that the British Standard which provides guidance for successfully retaining trees on development sites seeks to identify the more important trees within each setting. I begin by assessing each tree for its contribution to the setting and long-term suitability to the site. It is very much a case of quality, not quantity. I also consider how each tree will relate to the proposed development (perhaps that should be the other way round).

The replacement trees were also substantial specimens. I did note at the time that whilst the outcome was to be welcomed, it had taken a sustained public campaign to achieve. How many high quality trees are lost because they are less prominent or their contribution is not recognised? The large, more valuable trees take up space, and sadly without a full appreciation of their contribution, it can be harder to present the case for their retention. This is where being able to apply realistic valuations to trees can be really useful. One of my earlier valuation commissions involved a 200 year old Yew tree which had suffered from unplanned and excessive pruning during utility work. The contractors offered to provide several saplings from a local nursery to compensate. Interesting! A single seven metre tall Yew tree can cost more than £9000, which places the offer in context.

I have been surveying and assessing potential development sites for some fifteen years, both as a consultant and working as a local authority tree officer. Typically fewer than 20% of the trees surveyed have been of sufficient value to the setting to merit retention. On the occasions where this is not the case, the existing layout typically reflects the presence of a population of trees of merit. On the pure head count basis, it can seem, when only a small proportion of trees is being retained, that one is decimating the site. However, I have realised that this can be very misleading. I recently surveyed a site and identified nearly 70 individual trees, for which it was only realistic to retain between 15 and 20. The site included a group of some 20 self-set trees in a ‘mini copse’, on a site with some spectacular oaks. It was when I compared crown spreads that I appreciated some of the oaks individually covered more space that the group of 20 trees combined.

I am a tree specialist, and appreciate the variations in impact that trees of different species and genera can make, and when a purchase makes a sound investment. Depending on whether one is valuing a tree for insurance purposes or compensation, or to provide a budget for planting replacement trees, there is a range of methods available for the arboricultural valuer. This can help to ensure that, when a tree of value is lost, the mitigation works are proportionate. If, for example, a mature London Plane (capable of living for more than 200 years) in a highways setting needs to be felled, the ‘two for one’ policy that many local authorities apply, aimed at enhancing the landscape, could result in short-lived ornamentals being planted. If, however, the London Plane has been valued, with a valuation of £5000, and this becomes the value of the mitigation works, the replacement trees are more likely to reflect the contribution of the lost tree.

How often do we see development proposals presented with drawings showing high quality landscaping and scenes with established trees? The trees can so easily become an afterthought, an opportunity lost. Trees can enhance the retail experience, and a parking area with some carefully chosen and positioned specimens which can cope with the harsher conditions can provide the finishing touch, in a way which we may not even consciously appreciate. This is where, with space, Pear, London Plane and Hornbeam can make a great difference.

We can value trees as individual (depending on if the valuation is looking at the physical cost of replacing a tree or compensating for loss). We can also value their wider contribution to the environment. Arborists in the US have explored the different ways in which trees enhance our lives, and the financial benefits. We can now calculate how much carbon dioxide and air particulates trees within a particular area are absorbing from the atmosphere and the value of this. In New York, a city-wide survey identified that for every pound spent on planting and maintaining trees, several pounds of benefits were gained. This exercise, using a process called ‘I-Trees’, has been carried out in Torbay, where it identified that the

A prominent focal specimen tree can become a valued local feature, sometimes even when it is not a particularly outstanding example of the species. In my adopted county of Herefordshire, a small group of Lime trees in a grass verge in the city centre was threatened by proposed redevelopment. The trees were not fully mature, nor historically important. They simply happened to be in a prominent setting. EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 87

borough’s trees contribute more than £400,000 of benefits in improved air quality and cooling .

Finally, one element of managing trees which I have recognised is that the more visible contribution most trees make is to the visual amenity of their setting, in other words, they improve the landscape. As a tree care professional, I can be a purist when it comes to assessing trees. Seeing a poorly-pruned tree jars for me. The presence of structural weaknesses, for me, detracts from the contribution of a tree, as do dominant lateral (side) branches, when the main leader should be dominant. One thing that I appreciated, when managing the populations of trees across the urban midlands, was that many had such detractions. Faced with limited budgets, and without the option to replace the specimens showing the scars of modern life, it was preferable to retain them warts and all rather than to remove them. The challenge was then to ensure that the new trees, representing the next generation, were high quality specimens.

Our urban settings are warm, and create heat islands. The effect of evapotranspiration, where water is released by a tree from foliage as oxygen is released and CO2 absorbed, cools the surrounding air. This, together with shading, can cool the day time temperature in urban settings by ten degrees Celsius. This not only improves the quality of life experience for those benefitting from the cooling and makes working conditions more acceptable, it also reduces the need for costly air conditioning and ventilation. When it comes to planting the next generation of trees, quality does not have to involve high spending. Sometimes developers are surprised when I advise against costly landscaping proposals. Spending money on impact trees to demonstrate commitment to a site is very admirable. However, it can easily be a poorly focused investment. There are so many challenges on the journey to successfully establishing high quality trees, something that seems so straightforward to many. It takes the informed eye to appreciate when one is sourcing quality stock and ensuring the trees are suited to the setting and equipped for the future.

This is one of the reasons that I particularly enjoy providing landscaping schemes. There is something rewarding in choosing trees for a new site, whether it be one property or an estate, and to supervise selection, locations and planting arrangements. For whilst it is better to plant and successfully establish one tree, if I can extend this to more, I welcome the opportunity. There is also something especially rewarding to return to a site and see trees which are in place through my involvement. That, for me, is a sign of quality. ■

Over the past decade, much work has been done identifying the obstacles to establishing the next generation of trees for the urban environment. Part of this has been publishing BS8545:2014 ‘Young Trees: From Nursery to Independence in the Landscape’ which, for the first time, provides a framework of best practice.

❖

Ethos Forensics provides: Forensic consultation in relation to DNA and body fluids evidence

❖ Interpretation of blood pattern analysis evidence ❖ Expert witness services ❖ Urgent responses and reporting within 5

working days, if required ❖ Forensic training for police customers, forensic

scientists or other interested parties (Bespoke courses can be arranged) ❖ Auditing and quality systems consultancy to

ISO 17025 Contact, Forensic Consultant Sue Carney MPhil, BSc (Hons), MCSFS Telephone +44 7796 546 224 www.ethosforensics.com

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 88

Ballistic Fingerprinting - Science or Art? fall into three categories, i) Class ii) Sub-class and iii) Individual. Class marks are common to a set of tools, for instance the width of the blade of a screwdriver or with firearms the number of rifling grooves and lands together with the direction of twist of the rifling. For instance the maker Colt typically uses six lands and grooves directed to the left. Sub-class marks are unintentional manufacturing marks transferred to a batch of tools. Then there are the individual marks that enable a possible identification to be made, these can arise from damage or wear to the tool or from the manufacturing process itself.

Did this gun fire this bullet or cartridge case? This is one of the most frequently asked questions asked of the forensic firearms expert. Clearly the answer to this is of vital importance when it comes to investigating gun crime. The science behind this aspect of firearms identification relies upon the fact that at some microscopic level the profile of all surfaces differ. When a relatively soft bullet passes down a harder steel barrel marks from the rifling, that is the helical set of grooves and lands in the bore that impart spin stability to the projectile, will engrave the bearing surface of the bullet. Similarly marks present on the hard steel internal components of the gun, such as the firing pin, chamber, extractor and ejector can also mark the softer metal cartridge case. Even the roughly sawn off end of a shortened shotgun can uniquely mark the plastic wad found inside a shotgun cartridge. Guns are tools and tools can transfer marks onto the surfaces they come into contact with.

These marks present on bullets, airgun pellets, plastic shotgun cartridge wads and cartridge cases can be compared to marks present on other samples by using a comparison microscope. This piece of equipment, in effect two microscopes joined by an optical bridge, uses a prism to enable two objects to be viewed simultaneously, side by side, at the same magnification. Fig.1 and 2 shows a bullet and a cartridge case comparison, respectively. Figures 3 and 4 show the transferral of sub-class marks from the gunâ&#x20AC;&#x2122;s breech face to the cartridge case. Unfired cartridges can also be examined to see if there are any tool marks on them that have been transferred from

The skill of the forensic firearms expert comes in assessing the significance of these transferred marks. In general the type of marks that can be transferred EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 89

being loaded into a firearm. Consequently it is possible to link live ammunition to a specific gun and to fired cartridge cases.

sufficient agreement is the product of the examinerâ&#x20AC;&#x2122;s personal training, skills, and experience in recognising corresponding patterns of matching striations, recognising corresponding patterns within tool marks, determining the best known non-match in their personal experience, comparing striated and impressed marks. It is incumbent on each examiner to rely on their training and experience to identify and to be able to articulate the process used to determine sufficient agreement and best known non-match.

The principle skill required by the expert is pattern recognition. In order to come to positive conclusion the examiner must be satisfied that the level of agreement exceeds that of any known best non-match. If the level of agreement is sufficient one can conclude that for all practical purposes a single firearm was used. This takes years of experience. Recent research has built on work carried out in the 1950â&#x20AC;&#x2122;s to give a statistical foundation to the theory of tool mark identification.

An evolving concept in striated mark comparisons is the developing study of consecutive matching striae (CMS) as a quantitative method of describing an observed pattern match. CMS is simply a means of articulating the best known non-match described and defined by the Theory of Identification.

The Theory of Identification indicates that the degree of correspondence which must be exceeded to constitute sufficient agreement for an identification is the best known non-match (by each individual examiner) to have been produced by different firearms. Ideally, the examiner would gain experience in this during their initial training period rather than when they begin to perform actual examinations on their own. This Theory of Identification indicates that, although founded on the scientific method and reproducibility of results, the interpretation is subjective in nature. It is the policy of most laboratories that a second qualified examiner verify the findings of the first examiner. Ultimately,

CMS was initially proposed in a paper written by Al Biasotti and published in the Journal of Forensic Sciences in 1959 (â&#x20AC;&#x153;A Statistical Study of the Individual Characteristics of Fired Bulletsâ&#x20AC;?). In an extensive analysis of 720 known non-match comparisons of land and groove impressions in fired bullets, Biasotti found no instances in which the CMS exceeded four. In 1997, Biasotti and John Murdock jointly published their conservative quantitative criteria for identification as expressed in terms of CMS.

222 !*- ).$ !$- -(. *).0'/ ) 4 *(

( *+ +)($ -+,(& * % +(%-,#('+ ,( %% #* *&+ ' * % , #'. +,#! ,#('+ *- ).$ $- -(. *).0'/ ) 4 / $. ) $))*1 /$1 *(+ )4 ' 4 /2* 2*-' - )*2) 3+ -/.

0-$)" /# $- /$( / /# *- ).$ $ ) -1$ -& ./ "'$* ) )" ' # 2 ( /# (*./ . )$*- . $ )/$./. 2*-&$)" $) !*- ).$ !$- -(. ) "0).#*/ - .$ 0 - .+ /$1 '4 / $. /# *)'4 . +-$1 / *).0'/ ) 4 *!! -$)" /#$. ' 1 ' *! 3+ -/$. 3+ -$ ) ) 2*-' 2$ - +0/ /$*) $) !$- -(. ) ) 0) -/ & 2*-& / 1 -4 ' 1 ' *! !*- ).$ !$- -(. ) 3 ($) /$*). ) # . 3/ ).$1 3+ -$ ) *! *(+' 3 . ).$/$1 . . !-*( -*.. /# "'* # $- /*-. - /2* *! /# (*./ . )$*- ) 3+ -$ ) +- /$/$*) -. $) /# 2$/# *1 - 4 -. *! *( $) *0-/ "*$)" 3+ -$ ) 6. 3+ -/ $/) .. . -1$ $) '0 .

3 ($) /$*) *! /# !0'' - )" *! . . !-*( /# '' " $'' " ' +*.. ..$*) *! !$- -(. ) ((0)$/$*) /* *(+' 3 $)/ -+- / /$*) *! ! / ' .#**/$)" $) $ )/. ) +/# &)*2' " *! !$- -(. ' "$.' /$*) $)1*'1$)" *(+' 3 ' ..$!$ /$*) $..0 . 5 ) $).$ -6. &)*2' " *! !$- -(. ' 2 +*'$ 4

)/$,0 !$- -( 1 '0 /$*)

$- "0) ' ..$!$ /$*) *(+0/ - $ .$(0' /$*). *! -$( . ) . ) +-*% /$' /- % /*-$ . */ )/$ ' !*- $ )/ ' $. # -" - % /*-4 - *)./-0 /$*) ) '4.$. $) '0 $)" . ) 1$.$/.

/ -($) /$*) *! /# /4+ *! "0) 0.

/ -($) /$*) *! #*2 ( )4 "0). 0. )" *! !$- / -($) /$*) )/ -+- / /$*) *! 0/*+.4 !$) $)". $) '0 $)" 0/*+.4 3 ($) /$*) // ) ) )/ -+- / /$*) *! !$) $)". $) *-+*- /$)" - .0'/. -$/$ ' ) '4.$. *! *)/ ($) /$*) $..0 .

! 4*0 ) $(( $ / 1$ +' . *)/ / $/# - *$ +, !%#( (' *- '! % " / (' /# -2$. +' . ( $' 0. / ),0$-$ . !*- ).$ !$- -(. *).0'/ ) 4 *( 0- 2 .$/ $. / 222 !*- ).$ !$- -(. *).0'/ ) 4 *(

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 90

A number of significant studies have been carried out in an effort to further validate these conservative criteria. Although not necessarily practiced by all firearm examiners, these criteria are of growing importance due to these factors:

Exclusion (Elimination) This conclusion is drawn if the class characteristics match and the individual characteristics show clear differences. It is all but certain that no changes have occurred in the firearm or machine components (wear, corrosion, deliberate alteration). The chance that the item was still fired by a single firearm is considered virtually non-existent. It has sufficient disagreement.

– The expectations of more sophisticated jurors – The need for more objective identification criteria – The potential for increased credibility for examiners in the courtroom

Any critical comparison microscopy conclusion must be subject to peer review, which ideally should consist of an experienced, trained and competent expert redoing the comparison. It is not uncommon for experts to disagree on the significance of corresponding marks found during firearms related comparison microscopy.

A five-point scale can be used to explain the findings in a little more depth which allows a little more flexibility and adds weight to the evidence. A five-point scale is considered best practice, although a three-point scale is widely accepted. Conclusive (Identification) This is the ‘Highest’ conclusion that can be drawn in a Firearm marks comparative examination. In this situation, the class characteristics match and the individual characteristics are certainly distinctive. This is concluded on the basis of current knowledge and available means, based on the observed similarities in the individual characteristics that the items have. The chance that the observed similarities would have occurred if the items had been fired by different firearms is considered virtually non-existent.

In the UK the police collate ammunition components, recovered from the scenes of unsolved crimes. When a gun, spent bullets and cartridge cases are seized they are screened through this collection to see if there is any previous use of the same gun. This can be a long, labour intensive process, however in recent years there have been huge developments in the automation of the comparison microscopy process. However it is still the case that any potential match must be manually looked at by an expert.

Strong (Could have) This is the case where the class characteristics are the same but, despite the observed similarities in the individual characteristics, the examination still raised some doubts, e.g. because the striations/imperfections match partly or the similarities are not very convincing and/or because there is some doubt about the distinctive value of the marks. There is more agreement than disagreement.

Although underpinned by the scientific method the process of matching guns to bullets and cartridges cases is essentially a subjective one, relying upon the competence, experience, knowledge and opinion of the expert. In any case involving this type of evidence it is therefore essential that any conclusions concerning a potential match are subjected to rigorous challenge and peer review.

Inconclusive This is the case if the items might/might not have been fired by a single firearm. The class characteristics match those of the evidence firearm but no (distinctive) similarities or differences between the individual characteristics could be found. Alternatively, differences in individual characteristics have been observed that can be explained, however, by changes (wear, corrosion, deliberate alteration) in the specific firearm. There is equal agreement and disagreement. Limited (May not have) This conclusion is used if the class characteristics match and differences in the individual characteristics have been found. The examination, however, raised some doubt, e.g. because the differences were not so evident and/or because it could not be safely assumed that the differences were not caused by changes (wear, corrosion, deliberate alteration) in the firearm involved. There is more disagreement than agreement.

EXPERT WITNESS JOURNAL

Figure 1. A comparison microscope image showing agreement between firing pin shear marks on the primer of two cartridge cases fired in a Glock self-loading pistol 90

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 91

Figure 4. Unintentional manufacturing tool movement on the breech face and the resultant subclass marks on the fired cartridge case.

Figure 2. A comparison microscopy image of the rifling impressions present on two bullets with fine detail agreement between individual marks

Figure 5. The author, Mark Mastaglio carrying out a cartridge case comparison Mark Mastaglio ÂŠ The Forensic Firearms Consultancy Ltd 2015

Figure 3. Sub class marks on the cartridge primer

Electrical Investigations

%74))0 $%4( %0(;

( %',).14 1* (7'%6-10 " )46*-)( 1'7/)06 :%/-0)4 "! 1%4( )46-*-)( 14)05-' :2)46 "! $ )..19 1* :2)46 $-60)55 056-676)

Dr Antony Anderson CEng FIEE

0 06)40%6-10%..; 57'')55*7. 14)05-' 1'7/)06 %0( %0(94-6-0+ :2)46 9,1 5)48)( /7.6-*%4-175 .)+%. 27&.-' %0( 24-8%6) 14+%0-<%6-105 18)4 ;)%45 '18)4-0+ %76,)06-'%6-10 1* (-5276)( (1'7/)065 %0( 6)56-*;-0+ -0 /156 .)8).5 1* '-8-. %0( '4-/-0%. '17465

Electrical Consultant and Expert Witness Investigates and reports on causes of electrical system & machine failures including alleged automobile cruise control/electronic throttle control malfunction (uncommanded sudden acceleration)

4%'6-') 9%5 4)+-56)4)( ! ! 5-0') 9-6, *7..; )37-22)( .%&14%614; -0'.7(-0+ .%6)56 *14)05-' %22%4%675 -0 ! #! %0( -/%+) )0,%0')/)06

Capability Statement on electrical failure investigations Offers ideas and solutions the improve design/manufacturing processes

%&4%6)',5722.-)5 79'.7& 0)6

1010% 175) 19(4%; .15) 170( -.. 4%9.); $

EXPERT WITNESS JOURNAL

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

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 92

The Tribunalâ&#x20AC;&#x2122;s Independent Expert by Richard Ward, CEng, FIET, FIMechE, MIDGTE, MAE Principal, Robert Bruce & Sons, Consulting Engineers submissions, supported by an expert report, a rebuttal report and a rejoinder, together with documentary evidence and witness statements. In total this amounted to more than 100 lever-arch files of evidence (unfortunately, an electronic document management system was not used in this case). I sought and received certain clarifications from the Parties, but, presented with such full written evidence by both sides, I did not find it necessary to interview witnesses. Key witnesses of fact were examined by the Tribunal in a hearing, which I attended, but the Partiesâ&#x20AC;&#x2122; technical experts were not cross-examined.

It is relatively unusual for a Tribunal to commission its own independent expert in arbitration proceedings, but the writer was appointed in this capacity in an international arbitration conducted under the auspices of the International Chamber of Commerce. The arbitration, which arose between a builder and a design contractor, concerned the design of a large power station. It involved questions relating to the design process, the coordination of design disciplines, the quality of design, changes to contract, compliance, delay, the percentage and value of work completed, and the cost of completion and remedial works. All the main engineering disciplines were involved. The project management, mechanical and electrical aspects lay within my personal expertise, and a colleague provided expert assistance and input on matters of civil and structural engineering.

The initial mission was extremely wide ranging. To limit costs and make the task more manageable, I proposed an approach based on detailed examination of a representative sample of issues, but this was not accepted by the Tribunal. After receiving my initial appraisal of the work involved in preparing the required report, the Tribunal and the Parties deliberated to narrow the issues and the Tribunal then issued an intermediate award, which eliminated certain elements of the case from expert consideration and reduced the scope of the Expertâ&#x20AC;&#x2122;s mission. Each of the remaining issues was analysed

The Terms of Reference invited the Expert to examine the submissions and documents presented by both Parties and allowed him to ask for additional clarifications, details and other relevant material information from either Party and to interview witnesses, if necessary. Each party provided its EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 93

and evaluated in detail. Effectively my role was to provide independent expert opinion on all the engineering issues in the case, to assist the three-man Tribunal, which consisted entirely of lawyers.

I was examined on my final report by the Tribunal and effectively cross-examined by both partiesâ&#x20AC;&#x2122; attorneys. I was, in fact, cross-examined on the same report by both sides at two separate hearings, the second of which was convened in order to acquaint a replacement Chairman of the Tribunal more fully with the case, his predecessor sadly having died in post. The whole process from my instruction to issue of the Tribunalâ&#x20AC;&#x2122;s final award took more than ten years. The mission was a major challenge that drew on all the experience gained in many yearsâ&#x20AC;&#x2122; involvement in large international engineering projects. â&#x2013;

The independent expert operates in isolation from the sources of the evidence and, in an international context particularly, there is scope for misunderstanding the evidence. With the knowledge, agreement, and indeed with the encouragement of the Tribunal, I therefore decided to issue a draft report for the Parties to review and comment upon before preparing the final version. This had the advantage of bringing contentious opinion into the open before any hearing based on the report. It also gave me the opportunity to address such contentious matters more fully in the final report and to provide additional explanation where necessary.

Richard Ward, Principal of Robert Bruce & Sons, provides engineering consultancy and expert services based on more than 40 yearsâ&#x20AC;&#x2122; experience of power generation, the process industries, industrial machinery and electrical installations.

In reaching my conclusions, I had to make certain assumptions regarding the proper construction of the Contract between the Parties. It was of course the prerogative of the Arbitral Tribunal to construe the Contract. Since the true construction of the contract could not be decided before I issued my report, where my opinion relied on a particular interpretation I provided alternative conclusions that the Tribunal could adopt or reject according to its construction of the Contract when making its final award.

The practice was founded in 1908 and has from its outset been engaged in international projects connected with the extractive and secondary industries of developing as well as developed nations.

4$,+% '#,3* .)+.''1+.) 4+,&+.) '15+%'2 .)+.''1+.) %%40#3+/.#, '#,3* #.& #('38 1#%3+3+/.'1 #.& #1$/. /./7+&' .5'23+)#3+/.2 #2 #(' ')+23'1'& .)+.''1 1#+.#)' #3'1 '.31#, '#3+.) #+.6#3'1 .)1'22 #.& ,//&+.) %#,&+.) #.& 41.2 /1'.2+% *#13'1'& .)+.''1 .5'23+)#3+/.2 '0/132 /413 33'.&#.%'2

Engineering Expertise for the Generation, Power, Process, and Manufacturing Industries Plant, Machinery, Electrical Systems, Mechanical Handling, Construction

#22'8 ,#%' ,3*#- /.&/. " ! ', #7

/$+,'

' -#+, 2#6#,2* $3%/..'%3 %/'$ 666 2#6#,2* %/-

Personal Injury UK and International www.rbands.co.uk enquiries@rbands.co.uk +44 (0)1298 871173

EXPERT WITNESS JOURNAL

AUTUMN 2015

editorial 13:Layout 1 9/30/15 3:27 PM Page 94

Sculpted to Stand Out

Introducing the new NX 300h, a totally new kind of Lexus. A bold new take on the Luxury Compact SUV. Expertly crafted - boasting the first ever Lexus with a Turbo - NX is a harmonious pairing of style and creativity, embodying progressive luxury.

The daring new NX 300h F SPORT Outside, 18-inch alloys, F SPORT grille and front spoiler lip attract even more attention. Inside, driving enthusiasts will enjoy a perforated F SPORT leather steering wheel and highly supportive leather sports seats built using ‘integrated foaming’ technology.

With its wide stance, Lexus ‘Spindle Grille’ and exquisite front and rear LED lights, the NX 300h refuses to go unnoticed. Powered by our latest Full Hybrid drivetrain, this breakthrough Lexus delivers smooth and agile handling combined with incredible environmental performance, with CO2 from just 116g/km and up to 54.3mpg (combined). Inside the beautifully finished interior you’ll discover intuitive technology that makes your life simpler. The NX 300h range starts from £29,495.

Aluminium pedals and carbon look inlays complete the sports interior. With Adaptive Variable Suspension adjustable for extra responsiveness, the NX 300h F SPORT delivers a smooth yet dynamic crossover experience.

A bold new take on the Luxury Compact SUV. Expertly crafted - boasting the first ever Lexus with a Turbo - NX is a harmonious pairing of style and creativity, embodying progressive luxury.

EXPERT WITNESS JOURNAL

AUTUMN 2015

COVERS ISS 13:Layout 1 9/29/15 12:47 PM Page 3

COVERS ISS 13:Layout 1 9/29/15 12:47 PM Page 4