The Expert Witness by ExpertWitness

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ISSN 2397-2769

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

TRAUMATIC INJURY- HOLIDAY SICKNESS FIRE - MEDIATION - RICS Vol 1 Issue 21 - Autumn 2017 UK £5.00 €6.00

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Consultant Psychiatrists and Consultant Psychologists Our experts cover many aspects of mental health: General adult psychiatry Child and Adolescent Mental Health Personal Injury Criminal law Immigration and Asylum matters Capacity, DoLS, Court of Protection Testamentary Capacity Psychosis Affective Disorders Anxiety disorders Personality disorder PTSD/Trauma ADHD Eating Disorders Body Image Disorders Offending/forensic matters Risk Management S37/41 Fitness to Plead Fitness to Stand Trial All our experts have medicolegal experience undertaking cases in criminal law, occupational health, personal injury, the Mental Capacity Act and Court of Protection. They have provided expert opinion on complex cases and given evidence to the courts. They have also undertaken specialist expert witness training. Our experts are: Dr Fairuz Awenat, Consultant Clinical Psychologist Dr Ty Glover, Consultant Psychiatrist Dr Lee Martin, Clinical Psychologist Dr Asad Raffi, Consultant Psychiatrist Dr Kirsty Smedley, Consultant Clinical Psychologist

ExpertMinds The Colony Wilmslow Altrincham Road Wilmslow SK9 4LY Area of work: North west and Nationwide Tel: 0161 826 2815 Email: info@expertminds.co.uk Web: www.expertminds.co.uk

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ISSN 2397-2769

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

Welcome to the Expert Witness Journal

TRAUMATIC INJURY- HOLIDAY SICKNESS FIRE - MEDIATION - RICS Vol 1 Issue 21 - Autumn 2017 UK £5.00 €6.00

Hello and welcome to the 21st edition of the Expert Witness Journal. In this edition we feature a wide range of topics including Fire Investigation, Drug Testing, Forensic Accountancy and Accident and Emergency Claims. One of our main features highlights the importance of Mediation. The article discusses how Mediation can be a really useful way of helping you sort out partnership, family business and private client disputes. We also feature an excellent article by Mark McCabe on Fire Investigation and Expert Witness. In this article Mark discusses whether expert witness meetings are necessary and are they helpful to everyone involved in the judicial process? You will also notice that we have included a special London supplement inside this issue. While this is aimed at informing and promoting our London experts, there are many interesting articles within the supplement that will interest everyone. We will also be exhibiting at Law London in October and the Bond Solon Expert Witness Conference in November. Please stop by and say hello if you are attending either of these conferences. Our next issue will feature personal injury, pain management and orthopaedics, plus many general related articles. If you would like to submit or comment on any articles, please contact myself at the email below. Many thanks for your continued support. Chris Connelly Editor Email:chris.connelly@expertwitness.co.uk This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’. All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The 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. The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2017. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

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News & Events

Government to Strengthen UK Data Protection Law People to have more control over their personal data and be better protected in the digital age under new measures announced by Digital Minister Matt Hancock.

• Allow people to ask for their personal data held by companies to be erased

• Public to have greater control over personal data - including right to be forgotten

• Require ‘explicit’ consent to be necessary for processing sensitive personal data

• New right to require social media platforms to delete information on children and adults when asked

• Expand the definition of ‘personal data’ to include IP addresses, internet cookies and DNA

• Enable parents and guardians to give consent for their child’s data to be used

• Update and strengthen data protection law to reflect the changing nature and scope of the digital economy

In a statement of intent the Government has committed to updating and strengthening data protection laws through a new Data Protection Bill. It will provide everyone with the confidence that their data will be managed securely and safely. Research shows that more than 80 per cent of people feel that they do not have complete control over their data online.

• Make it easier and free for individuals to require an organisation to disclose the personal data it holds on them • Make it easier for customers to move data between service providers New criminal offences will be created to deter organisations from either intentionally or recklessly creating situations where someone could be identified from anonymised data.

Under the plans individuals will have more control over their data by having the right to be forgotten and ask for their personal data to be erased. This will also mean that people can ask social media channels to delete information they posted in their childhood. The reliance on default opt-out or pre-selected ‘tick boxes’, which are largely ignored, to give consent for organisations to collect personal data will also become a thing of the past.

Elizabeth Denham, Information Commissioner, said: We are pleased the government recognises the importance of data protection, its central role in increasing trust and confidence in the digital economy and the benefits the enhanced protections will bring to the public.

Businesses will be supported to ensure they are able to manage and secure data properly. The data protection regulator, the Information Commissioner’s Office (ICO), will also be given more power to defend consumer interests and issue higher fines, of up to £17 million or 4 per cent of global turnover, in cases of the most serious data breaches.

Data protection rules will also be made clearer for those who handle data but they will be made more accountable for the data they process with the priority on personal privacy rights. Those organisations carrying out high-risk data processing will be obliged to carry out impact assessments to understand the risks involved.

Matt Hancock, Minister of State for Digital said: Our measures are designed to support businesses in their use of data, and give consumers the confidence that their data is protected and those who misuse it will be held to account.

The Bill will bring the European Union’s General Data Protection Regulation (GDPR) into UK law, helping Britain prepare for a successful Brexit. Julian David, CEO of techUK, said: The UK has always been a world leader in data protection and data-driven innovation. Key to realising the full opportunities of data is building a culture of trust and confidence.

The new Data Protection Bill will give us one of the most robust, yet dynamic, set of data laws in the world. The Bill will give people more control over their data, require more consent for its use, and prepare Britain for Brexit. We have some of the best data science in the world and this new law will help it to thrive.

This statement of intent is an important and welcome first step in that process. techUK supports the aim of a Data Protection Bill that implements GDPR in full, puts the UK in a strong position to secure unhindered data flows once it has left the EU, and gives businesses the clarity they need about their new obligations.

The Data Protection Bill will: • Make it simpler to withdraw consent for the use of personal data EXPERT WITNESS JOURNAL

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Contents

Some of the highlights of this issue News and Events

Expert Witnesses in Accounting Disputes by Charles Yorke and Jason Shaw

The Wrong Prescription by Anthony Mark Dunne

Fire Risk Versus Commerce and Governance by David Townsend

Fire Investigation and the Expert Witness by Mark McCabe

How Legal Decisions are Made Using Hair Tests: The Foundations of Interpretation by Lolita Tsanaclis

Hidden Contributory Factors in Slip Incidences by Future Clean

Holiday Sickness Scams by Richard Paige

Resolving Party Wall Disputes by Martin Burns

Prosthetic Provision and Prosthetic Expert Witness Reports by Abdo Haidar

Conference Showcases Impact of Latest Assistive Technology on Rehabilitation for the Seriously Injured Bush and Co

Development of Traumatic Encephalopathy following SingleModerately

Severe or Severe Head Injury by Prof Upendra M Chowdhary, A Not Very Expert Witness by Anthony Lipmann

What really happens in discussions between experts? 57 Mark Solon interviews Nick Deal, Barrister and Head of Expert Witness training at Bond Solon Cultural Slip-ups in West and East European Handshakes by Dr Bashir Qureshi

The Lawfather by Richard Oâ&#x20AC;&#x2122;Sullivan

Expert Evidence:Key Differences Between England & Scotland by Barbara Bolton

Professor J. Peter A. Lodge

MD FRCS

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

Please enquire via my website, www.peterlodge.com Email: peter.lodge@nhs.net Telephone: Secretary +44-(0)113 2065175 Fax: +44-(0)113 2448182 Mobile: +44-(0)7775 825934 Address: HPB and Transplant Unit, St James's University Hospital, Leeds LS9 7TF

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News & Events IFB announces the UK’s Crash for Cash hotspots public roads and forcing innocent people into needless collisions. Not only does that present a real risk of injury, but sadly we know of at least one fatality that has occurred as a result of these incredibly dangerous and reckless incidents. These hotspots may be the worst affected areas for these types of scams, but crash for cash collisions can happen anywhere, so it’s imperative that road users are aware of them, exercise appropriate caution and if they believe they’ve been a victim, report it as soon as they can”.

The Insurance Fraud Bureau (IFB) has released Crash for Cash hotspots data, revealing the UK’s top 30 postcode districts in the UK that are hotbeds for these life-endangering, fraudulent scams. New data from the IFB shows that the majority of the top 30 postcode districts are located in the Midlands or the North of England. Birmingham has the highest level of representation on the map, with ten postcode districts featuring, five of which are listed in the top 10. Postcode districts in the Manchester postal area also feature prominently on the list, with five postcodes in the top 30. Surrounding area Oldham also features twice, as well as Bolton postcode BL3 being included on the list. Major cities Sheffield and Liverpool both have one postcode district featured in the top 30, Bradford in West Yorkshire also features as a hotbed, with five postcodes. Nearby Wakefield postcode WF13 also appears as number 20 on the list.

Motorists should remain vigilant to the tell-tale signs of a crash for cash scam which can include: • the other driver being far too calm for someone that’s been involved in a car accident • the driver having already written down their insurance details prior to the accident • any claimed injuries appearing to be completely at odds with the force of the impact.

N18 in London is the southernmost postcode, with only three postcodes from London featuring in the top 30.

If an individual believes they have been the victim of a crash for cash scam, they should note as much information as possible about the event and take photos at the scene if it safe to do so.

Crash for cash scams are where a fraudster, or group of fraudsters, stages an accident by deliberately damaging a vehicle (often with a sledge hammer or blunt object) or induces a collision on the road, solely for the purpose of financial gain.

Dr Joshua Adedokun

These criminals often target innocent road users in order to profit from fraudulent insurance claims, putting motorist’s lives at risk. Fraudulent motor claims submitted following the accident can also result in false personal injury and credit hire claims. Such scams are estimated to cost the industry £336 million each year, with a single collision potentially worth tens of thousands of pounds.

FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims.

The IFB is committed to detecting and disrupting these scams, and the hotspots data serves to highlight the key postcode districts that are high risk for this type of fraud. By working closely with Police and insurers, IFB is clamping down on these criminals and ultimately taking them off the roads and putting them behind bars.

Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2015. Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham & London. Other locations and Domiciliary visits can be arranged.

Ben Fletcher, Director of the IFB says “These scams may seem to some to be a harmless way to beat the system and get an easy pay out with minimal risk. The reality is that not only do those people now stand a very good chance of getting caught and facing the consequences, but these scams put other motorist’s lives at risk. Fraudsters are taking vehicles out on EXPERT WITNESS JOURNAL

Contact:

Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF

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

• Post-concussion syndrome

• Stroke

• Anoxia

• Epilepsy

• Dementia

• Alcohol and drug abuse

• Neuropsychiatric conditions

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

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

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

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

Mind Your Language, SRA Warns Solicitors A spate of cases involving solicitors being penalised for their use of language in electronic media has prompted the Solicitors Regulation Authority to publish a warning over ‘offensive communications’. A 2,300-word guidance note posted on the regulator’s website today states: ’We have experienced a significant increase in the number of complaints we receive concerning inappropriate communications, specifically (but not limited to) in relation to emails and the use of social media, both inside and outside of practice.

• Referring to women in derogatory terms and making sexually explicit comments; • Making comments which harass or victimise the recipient; • Using language intended to shock or threaten; • Making offensive or abusive comments to another firm about that firm or its client, or to individuals who are unrepresented. The document warns against ’gratuitously offensive’ language in exchanges during litigation, adding that ’it is equally important to remain professional when dealing with an individual who is representing him or herself, or has appointed a McKenzie friend.

The warning covers communications made both inside and outside practice. It follows the fining of a solicitor earlier this month for posting anti-Semitic rants on Facebook. The SRA notice states that ’online comments posted in a personal capacity and which might be deemed offensive or inappropriate could be classed as misconduct if the poster can be identified as a solicitor’.

While the document does not form part of the SRA Handbook, the regulator says it ’will have regard to it’ when exercising regulatory functions. Paul Philip, SRA chief executive, said: ’We expect solicitors to act at all times with integrity, including on social media and when commenting in what may seem to be a personal capacity. Public confidence in the profession is undermined by offensive or inappropriate communication and the misuse of social media can be a real problem.’

According to the notice, examples of the types of behaviour include: • Making offensive or pejorative comments relating to another person’s race, sexual orientation or religion; EXPERT WITNESS JOURNAL

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The Importance of a Good Quality Witness Statement in Serious Injury Cases by Caroline Buckingham, Associate Solicitor, Moore Blatch In any claim for personal injury, witness statements form a vital part of the case. A good quality witness statement is of even greater importance in high value claims for spinal cord injuries.

1.Accident circumstances These statements set out the facts of the case and they explain how the accident happened. The purpose of the statement is to establish who is to be held at fault for the accident. In cases where liability is disputed there will be witness statements from both parties. It is important that your solicitor meets with you and any witnesses to the accident at the outset of your case where your own memory and those of your witnesses are still vivid. A court is likely to give greater weight to a witness statement made close to the events it concerns than one prepared months or even years later.

In England a person’s witness statement stands as their evidence in chief. In a trial the person giving evidence to the court will be questioned upon the evidence contained within their statement. It is therefore vitally important that a witness statement is accurate and as detailed as possible. It is not possible to raise new matters at trial that have not been discussed within the witness statements. Therefore in a badly drafted statement key evidence could be missed leading to serious consequences upon the outcome of the trial and any award of damages.

2. The affect the accident has had upon your education or career A person who has suffered spinal cord injury may find some challenges upon their return to work. It may be that a person is no longer able to work following an accident or it may be that they are able to work but in a limited capacity. A person with a spinal cord injury may need to retrain to pursue a different career path following an accident. A witness statement setting out a person’s education/career path before and after the accident is very helpful evidence to put before a Court.

Witness statements must not be exaggerated. They must reflect the facts as they stand. If a judge finds that a statement has been exaggerated or is fundamentally dishonest this could result in a claim being struck out. Witness statements can be taken from a variety of different people covering different aspects of a personal injury case. At Moore Blatch we meet with our clients’ family members, friends, employers, lecturers and in the case of children we will often meet with teachers and other care providers.

A statement from an employer could be helpful. As an example an employer who sets out issues that were overcome with regard to access to a building, a wider disabled parking bay on site, a work station positioned with access to a disabled toilet and, if at all possible, a quiet room for the person to rest in when fatigued.

Witness statements can be used to inform the court and the defendant about a wide range of aspects including:

Mr Otto von Arx

Consultant Orthopaedic Spinal Surgeon. Medico-Legal / Medical Negligence Expert MBChB, MRCS, FRCS (Tr & Orth) Mr Otto von Arx is a Consultant Orthopaedic & Spinal Surgeon based in Bath. He has worked as a Consultant Orthopaedic and Spinal Surgeon since 2007. Mr Otto von Arx is a specialist in Orthopaedic Trauma Surgery and, experienced in most sub-specialties within Orthopaedic Surgery, primarily Spinal Surgery. He has undertaken research and audit projects during his career, which have culminated in local, international podium presentations and publications in peer reviewed journals. His areas of expertise include Spinal Surgery with expertise of spinal surgical practice, including pre-operative, peri-operative and post-operative management of spinal trauma and elective spinal surgery. Mr Otto von Arx has over 10 years experience acting as medical legal expert, providing advice and expert reports to instructing solicitors. His medical legal practice is split 70: 30 between claimant and defendant instruction.

Tel: 01761 422 258 Fax: 01761 422 233 Contact: P.A. Ellie Barnes Email: ovonarx@me.com Circle Bath Hospital Ltd, Foxcote Avenue, Bath Business Park, Peasdown ST John, Bath BA2 8SQ

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3. The care that has been provided to you by family members and friends; These are known often known as gratuitous care statements. Gratuitous care is care provided by family members or friends as opposed to professional care that is paid for. Care statements provide details of the care and assistance that has been provided following an accident and resulting injury. Care statements should comment upon the type of care provided such as help with washing and dressing, assistance with medication and meal preparation. Witness statements can also be used to comment upon the affect upon hobbies and interests, the affect upon relationships with family members and friends and hopes and aspirations for the future. They can be used to describe the injuries sustained and the recovery that has been made.

Dr HABIBI PAEDIATRICIAN AND SPECIALIST IN: CHILDHOOD SERIOUS ILLNESSES CHILDHOOD RESPIRATORY DISEASES CHILDHOOD SLEEP DISORDERS

I am a specialist in children's respiratory conditions including, asthma, allergies, bronchiolitis, chest infections and also serious illnesses such as pneumonia, meningitis and septicaemia. I am also a specialist dealing with sleep apnoea and other sleep problems, for children of all ages. 20 years experience. Over 800 reports. 60:40 Claimant: Defendant UK Register of Expert Witnesses. Family Justice Council Member My work in Paediatric Intensive Care has lead to a special interest in end of life care, decision-making and conflict resolution between health care professionals and families. I have assisted the Courts in a number of high profile cases: Glass v UK (Application No 61827/00) [2004] 1 FCR 553 Charlotte Wyatt October 2004 Charlotte Wyatt April 2005 Charlotte Wyatt October 2005

A witness statement paints a picture of the person as they were before the accident and of how their life has been changed as a result of an accident. A witness statement should read like a good book.

My Private Practice is based at 84 Harley Street in London, 243 Great Portland Street in London and New Malden Diagnostic Centre in Surrey. I am accessible, available and aim to provide the highest standard of consultation and care for children. I provide medical reports promptly and communicate properly with others involved in my patient's care.

Private Clinic Locations Harley Street Private Practice - 4th Floor Room 10, 84 Harley St, Marylebone, London W1G 7HW Harley Street Clinic - 35 Weymouth Street, London, W1G 8BJ

A good personal injury lawyer will appreciate the importance of a thorough witness statement and will meet with their client a number of times during the lifetime of their case to ensure that their witness statement is up to date and accurate. www.mooreblatch.com

The Portland Hospital Out Patient Centre - Great Portland Street, London, W1W 5AH The New Malden Diagnostic Centre - 171 Clarence Avenue, Surrey, KT3 3TX

Need an expert fast Call our free searchline on 0161 834 0017

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: • Burns • Soft Tissue Injuries &Scarring • Hand Injuries

• 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

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News & Events

Identity Fraud Soars To New Levels Cifas, the UK’s leading fraud prevention service, has released new figures showing that identity fraud has continued to rise at record levels in the first six months of 2017. A record 89,000 identity frauds were recorded, up 5% from last year. Representing over half of all fraud recorded by the UK’s not-for-profit fraud data sharing organisation, 83% of identity frauds were perpetrated online.

law enforcement and the new figures which Cifas has released today come as no surprise. The more our lives move online the easier it becomes for fraudsters to steal our identity. It has become normal for people to publish personal details about themselves on social media and on other online platforms which makes it easier than ever for a fraudster to steal someone’s identity.

The latest figures show there has been a sharp rise in identity fraudsters applying for loans, online retail, telecoms and insurance products. Although the number of identity fraud attempts against bank accounts and plastic cards has fallen these still account for more than half of all identity fraud cases.

“The figures show that both businesses and consumers are targeted and it is therefore important that people commit to protecting themselves in all aspects of their lives. Be careful who you give your information to, always consider whether it is necessary to part with those details. Cyber security is becoming increasingly important and we urge everyone both at home and at work to ensure that they have the right security settings on all of their devices.

The vast majority of identity fraud happens when a fraudster pretends to be an innocent individual to buy a product or take out a loan in their name. Often victims do not even realise that they have been targeted until a bill arrives for something they did not buy or they experience problems with their credit rating. To carry out this kind of fraud successfully, fraudsters need access to their victim’s personal information such as name, date of birth, address, their bank and who they hold accounts with. Fraudsters get hold of this in a variety of ways, from stealing mail through to hacking; obtaining data on the ‘dark web’; exploiting personal information on social media, or through ‘social engineering’ where innocent parties are persuaded to give up personal information to someone pretending to be from their bank, the police or a trusted retailer.

“We urge consumers and businesses to be conscious of identify fraudsters and to use our protection advice to help stop them in their tracks. We continue to work with banks, retailers and other members of industry to disrupt fraudsters activity however we also realise it is our responsibility to help advise consumers and businesses around these types of issues. We urge anyone who is interested in finding out about the latest fraud trends to sign up to our Action Fraud alerts.”

Simon Dukes, Chief Executive, Cifas said: “We have seen identity fraud attempts increase year on year, now reaching epidemic levels, with identities being stolen at a rate of almost 500 a day. “These frauds are taking place almost exclusively online. The vast amounts of personal data that is available either online or through data breaches is only making it easier for the fraudster. Criminals are relentlessly targeting consumers and businesses and we must all be alert to the threat and do more to protect personal information. For smaller and mediumsized businesses in particular, they must focus on educating staff on good cyber security behaviours and raise awareness of the social engineering techniques employed by fraudsters. Relying solely on new fraud prevention technology is not enough.” Head of the City of London Police’s Economic Crime Directorate, Detective Superintendent Glenn Maleary said: “Identify fraud continues to be a significant issue in EXPERT WITNESS JOURNAL

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Events Starting 13 Nov 2017 09:30 in London Starting 11 Dec 2017 09:30 in London Starting 04 Dec 2017 09:30 in Manchester

Re:Cognition Navigating the Mind-field: Mild traumatic brain injury Following Re:Cognition Health's successful conference in October 2015 a follow up is scheduled for 12 Oct 2017 at the Pullman Hotel, St Pancras.

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

The events aims to be an update of medical knowledge in 2017 to understand: The aetiology, mechanism and structural changes in the brain in mild traumatic brain injury (mild TBI). The effect of mild TBI on the functioning of the brain and mind. The complex overlap with psychological trauma e.g. PTSD and psychiatric trauma e.g. depression/anxiety, experienced by individuals with mild TBI How to quantify the neurological, psychiatric and psychological sequelae of Mild TBI by measuring the microscopic disruption of functional brain networks. The medicolegal and personal implications of early accurate diagnosis of mild TBI. Presentation of new and advanced neuroimaging techniques and related technologies to monitor and quantify objective evidence of brain injury and response to treatment.

Starting 05 Dec 2017 09:30 in Manchester Starting 14 Nov 2017 09:30 in London Starting 12 Dec 2017 09:30 in London Cross Examination Day - overview The Cross-Examination Day is a follow-on course to the Courtroom Skills Training. This intensive cross-examination training course helps you as an expert witness to refine and enhance your performance, and to gain mastery of your presentation. You’ll be cross-examined on one of your completed reports, once in the morning and once in the afternoon. The second cross-examination is recorded. Starting 06 Dec 2017 09:30 in Manchester Starting 15 Nov 2017 09:30 in London Starting 13 Dec 2017 09:30 in London Civil Law and Procedure - overview As an expert witness involved in civil proceedings in England and Wales, you need to understand the basics of law and legal procedure. This helps you work effectively and confidently, and to comply with mandatory requirements.

This course will be accredited by both APIL and the CPD Service. Speakers: Dr Dilley, Consultant Neuropsychiatrist, Dr Allder Consultant Neurologist Dr MacSweeney CEO and Consultant Neuroradiologist Professor William Stuart Consultant Neuropathologist Dr Kirtley Thorton Consultant Neuropsychologist and Neurophysiologist www.recognitionhealth.com

Starting 12 Oct 2017 09:30 in London

Pro Sols - www.prosols.uk.com Expert Witness Professional Solutions provides learning that covers the entire litigation process. Our expert witness training workshops are held in Central London 3 to 4 times per year. We limit the size of the workshops to allow plenty of time for interaction and discussion during the presentations and breaks. Many of our presenters have worked with us for over 15 years and have developed and refined our workshops as the role of experts has evolved and changed. No one else can offer this level of continuity in the delivery of learning.

Bond Solon - www.bondsolon.com Excellence in Report Writing - overview An expert witness’s report is a vital element in litigation. It must be clear, succinct, independent and well presented. Many experts develop their own report-writing style or adopt other people’s. But they’ve rarely received constructive feedback from lawyers on what’s actually required from their written evidence.

EXPERT WITNESS JOURNAL

Writing Expert Reports – Introduction Lynden Alexander 02 OCT 2017 - 09.30-16.30 London 9

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Events Our Expert Witness course is an introduction to the day-to-day tasks and responsibilities of a Building Surveyor working as an Expert Witness with the legal profession. You will learn about presenting in court, and examination and cross examination by barristers or other advocates representing the parties in a dispute.

Writing Expert Reports - Advanced Giles Eyre & Lynden Alexander 03 OCT 2017 - 9.30-16.30 London Giving Evidence in Public Inquiries Simon Randle & Lynden Alexander 11 & 12 OCT 2017 - 09.30-16.30 London

Inspire MediLaw www.inspiremedilaw.co.uk

Writing Expert Reports – Introduction Lynden Alexander 04 DEC 2017 09.30-16.30 London

Provider of first class conferences, training and events We provide knowledge for medical experts who need to understand the law and for lawyers who need to understand the medicine through conferences and training.

Writing Expert Reports - Advanced Giles Eyre & Lynden Alexander 05 DEC 2017 - 09.30-16.30 London

Benefits of Inspire Expert Witness Training Mentorship following attendance of our MedicoLegal Expert Witness Training. Marketing of your Medico-Legal expertise to get your practice up and running. Secretarial support for 12 months by experienced Practice Managers. Comprehensive Expert Witness Training course materials for easy future reference. A CPD certificate of completion (6 hours per day) will be provided by the CPD Certification Service following attendance

Successful Communication at Experts’ Meetings & Preparing to Give Oral Evidence in Court Giles Eyre & Lynden Alexander 06 DEC 2017 - 09.30-16.30 London For more information, please call Lynden Alexander on 020 7421 7476 or email him at lynden@prosols.uk.com

Programme Day One – Prepare Dr Jonathan Moore, GP Partner & Expert Witness

RICS Dispute resolution ACRE Mediation - Edinburgh› Edinburgh, 2 Oct - 20 Nov 2017

Day Two – Practice Ian Cohen, Clinical Negligence Lawyer

Planning to become a practising Mediator or want to enhance your career by developing an in-depth knowledge of mediation?

Day Three – Perform Lauren Sutherland QC, Clinical Negligence Advocate

RICS ACRE Mediation Accreditation will prepare you to mediate the most complex disputes to the highest standards across land, property, construction and infrastructure.

Speakers Dr Jonathan Moore Lisa Nabou Lauren Sutherland QC

www.rics.org/uk/training-events/training-courses/ expert-witness-training-/london/

Event Details Inspire MediLaw’s comprehensive three-day expert witness training course will provide medical professionals of all specialties with the essential knowledge, confidence and support needed to succeed in medico-legal practice.

Building Surveying Series: Expert Witness £395.00 30 Hours Formal CPD Contact +44 (0)24 7686 8584 As a surveyor, it is highly like that you will, at some point, be involved in a dispute that may come before a tribunal, and find yourself carrying out the role of an expert witness. The primary duty of an expert witness to the tribunal is to ensure that expert, independent evidence is provided using your knowledge and experience. EXPERT WITNESS JOURNAL

Wednesday 11th – Friday 13th October 2017, 9.30am-4.30pm. CPD hours 6 per day Jurys Inn Hotel, Oxford £1495 + VAT to include additional benefits 10% on early bird bookings 10

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There’s More Than One Way to Solve a Dispute Resolving workplace differences is a fine art – and many businesses have been getting it dramatically wrong. By Jane Simms Put down the franking machine and step away from your annoying colleague: the first rule of resolving conflict at work is to stop thinking of it as a problem. We see confrontation and disagreement as negative, damaging and to be avoided at all costs. We think that talking about a problem will be uncomfortable, or even make things worse, so we walk away and ignore it.

Richard Saundry, professor of human resource management and employee relations at Plymouth University, defines this as “a general sense of disengagement and unhappiness”, which is, he says, the very opposite of the engagement businesses say they are so keen to foster. In 2009, the Acas Code of Practice on Disciplinary and Grievance Procedures was simplified and a new emphasis placed on early informal resolution. Since 2014, employees have been strongly encouraged to demonstrate that they have attempted early conciliation before going to tribunal. This often means mediation, by either in-house or external trained mediators, or less formal facilitated conversations with line managers. The fact that we have seen what Saundry describes as “only sporadic changes” in practice over the past eight years is down to three key factors, which add up to what he terms a ‘resolution gap’.

But we couldn’t be more wrong, say conflict resolution experts. “Conflict is healthy and constructive – an indispensable element of good management,” says organisational psychologist Amir Kfir. He knows a bit about the topic; not only has he helped companies around the world transform themselves, he has also facilitated peace forums between Israelis and Arabs, and Greeks and Turks. “It is through diversity and difference that we grow – if two people agree on everything, one of them is unnecessary,” says Kfir. “If people say ‘there is no conflict here’ they are either blind or lying. What’s important is how we manage conflict.”

First, there are fewer employee representatives in organisations these days, “and they are an important conduit for resolving difficult situations”, says Saundry. Second, HR, as it has specialised and reorganised, has become in some cases more distant from operations – and although HR business partners are, arguably, very close to the business, they don’t see conflict resolution as sufficiently strategic to merit their attention. And finally, line managers lack the confidence, competence and time to have the kind of conversations with team members that would help nip disputes in the bud and prevent them from escalating.

Mike Talbot, psychotherapist, mediator and founder and CEO of UK Mediation, agrees: “Conflict is not only a fact of life, it’s also positive – it helps you come up with new ideas, integrate people’s different skills and abilities, and find a ‘third way’ to do things, which leads to innovation and creativity.” In certain industries, such as advertising and the media, the correct calibration of conflict can be crucial to ensuring creativity isn’t constrained. In others, conflict is glossed over or handled punitively, so its root causes are never examined. HR is the vital social glue that ensures conflict is handled healthily. But few, HR included, can say they are on top of the issue.

Jonny Gifford, senior adviser for organisational behaviour at the CIPD, says we need to see a similar shift in attitude towards conflict resolution as we did to coaching a decade ago. “Mediation-type skills need to be a core part of what it takes to be a good line manager, just as coaching skills now are,” he says. “It’s concerning that HR often sees conflict management as a non-strategic issue. Our research shows that it is the number one leadership challenge and one of the areas where HR is seen to add the most specialist value. This should be a wake-up call for HR – employee relations should not be treated as the ‘poor relation’. Conflict resolution expertise is hugely

Most organisations manage conflict through formal procedures – disciplinaries, grievances, employment tribunals and the like – which are, of course, prime HR responsibilities. There are two problems with this approach. First, such procedures typically kick in when the conflict has escalated, and the longer it goes on the more difficult it is to resolve. Second, HR professionals and others are often guilty of ‘hiding behind’ the procedures and failing to address the low-level conflict that rumbles on all the time. EXPERT WITNESS JOURNAL

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valuable to the organisation, which is looking to HR for support.”

systems and technologies to actually talking to people.

Just how valuable conflict resolution skills are is evident from US research that suggests employees spend an average of 2.7 hours a week in conflict at work – which equates to around 7 per cent of payroll and billions of dollars in ‘lost’ time. This should rouse leaders who, says Gifford, often treat conflict as ‘pathological’ rather than normal: “We need to embrace mediation and similar approaches that aim to genuinely resolve conflict. These methods can be uncomfortable if they legitimise the concerns of more junior people and reduce leaders’ power, but the outcomes are worth it.

“You can’t introduce this as some kind of revolution; it only works in organisations that are values-based, engage staff and have a good culture. In very competitive, shape-up-or-ship-out environments, people just won’t get it.” Naturally, businesses that have strong cultures are in less need of new approaches. However, Saundry has seen new conflict management approaches transform toxic cultures, “not through training a few mediators or taking something off the peg, but as a core strategic imperative with high-level support”. NHS organisations are a case in point, he says, and Northumbria Healthcare NHS Foundation Trust (NHFT) is an exemplar.

“HR has to realise that conflict management is a strategic issue that needs tackling, and they then need to get the business to recognise it as normal and deal with it in a healthy way.”

NHFT introduced what it describes as an ‘integrated conflict management system’, which combines both formal processes and informal conversations, to resolve conflict at an early stage through a collaborative approach. Personality clashes and performance management were the principal causes of conflict, which not only wasted staff and management time but also affected performance and wellbeing, with potential implications for patient care.

However, Gifford recognises that for most organisations this represents a cultural challenge: “You can’t achieve win-win solutions by just bolting on a mediation service.” James Traeger, director at organisational development consultancy Mayvin, agrees. Mayvin has developed an approach to conflict resolution called ‘Restorative HR’, which brings together HR and OD with restorative justice (an approach used in the criminal justice system that sees victims of crime work with offenders to determine how to ‘make good’ the damage). “Restorative practice is much more about culture change than it is about technique,” says Traeger. “It’s ‘this is what we do’ and ‘leaning in’ to challenges and difficulties to head off conflict. At the heart of it is an ancient Chinese philosophy: ‘Confronting the difficult while it is still easy.’”

Interventions included stress risk assessments, mediation, team facilitation and conflict coaching and training, but the key to success, says Saundry, was HR’s recognition that conflict management is a strategic issue, and involving senior management as coaches and mediators. “If you’re going to invest in a strategic approach, you shouldn’t just locate it in HR,” he says. NHFT also spent, and still spends, a lot of time training its managers in basic conflict resolution skills. This lies at the heart of being able to nip conflict in the bud, obviating the need to constantly tug at HR’s sleeves, saving money and management time and, ultimately, keeping people happier.

But “leaving the rule book at the door and encouraging people to be honest about how they’re feeling” doesn’t necessarily come easy. A collaboration between Mayvin and Surrey County Council resulted in a highly successful new approach to managing conflict using Resorative HR – but, admits Traeger, the groundwork was laid by Carmel Millar, then director of people and development at the council, in creating a coaching culture: “This meant that leaders were much more open and receptive to hearing what things are really like for people, which is a critical base to establish before you move into what might be thought of as ‘risky’ or ‘difficult’ conversations.”

In essence, conflict resolution skills are only an extension of the normal ‘dialogue’ managers should be having with their teams. Talbot says that when he is asked to conduct a structured mediation, “at the end of the process you often find the individuals themselves saying ‘why didn’t we do this six months ago? All we needed was a chat.’” It is, he says, “a big miss” by companies – particularly those that prevent people seeing or speaking to each other until the grievance procedure is concluded.

Even then, some parts of the organisation were less receptive to the approach than others. Millar, now a restorative practice expert, says: “We piloted the approach very successfully in Children’s Services, where there are lots of social workers who are predisposed to this sort of mindset. We had less success in other parts of the council where people prefer processes, EXPERT WITNESS JOURNAL

But most people need training in conflict management skills to make them both competent and confident. “Some people are natural mediators, but most have to learn it, and the key skills are listening and resisting offering solutions,” says Talbot.

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It’s also worth remembering that a lot of conflict arises from poor or non-existent communication. Alex Efthymiades, director at workplace mediation specialists Consensio, cites an example from her work with a financial services client. “Someone was regularly coming into work late, and her boss thought she was either lazy or not interested. In fact, her father was ill, and she was taking him for treatment. Her manager didn’t ask her what was going on and, because trust had broken down between them and she thought he wouldn’t understand, she didn’t feel she could explain.”

One technique some believe can help focus on the here and now is mindfulness, and coach Julia Carden uses it in the work she does with teams and individuals in conflict to help them explore their emotions, make sense of their anger or hurt and become more aware of their behaviour and the impact it has on others. She uses other tools too that are also aimed at building self-awareness as a precursor to being able to make a mental or emotional shift, including the ‘metamirror’ and the ‘empty chair’ exercise, which is part of Gestalt therapy. While these techniques are valuable in their own right, says Carden, they work best in a conflict resolution context when combined with mediation, and she often works in partnership with a mediator colleague.

Everyone is human and inevitably brings personal issues into work, says Efthymiades: “Organisations and individuals often seem to forget this and can’t empathise, and it is often because policies and procedures get in the way.”

The ultimate aim of conflict resolution should be to find Talbot’s ‘third way’, because, as he says, “that’s where the learning opportunity is”. Kfir describes it as ‘co-creation’ – a jointly crafted solution, which, because it is in everyone’s interests, is likely to last.

Resolving conflict, whoever does it, shouldn’t be a binary process – one that frames the conflict as a struggle between a perpetrator and a victim – but the longer the conflict is allowed to fester, the more entrenched people’s positions become.

The benefits are there for the taking, but it takes courage to embark on what is a very different path for most businesses. “Formal procedures are a nervous response, and should only be a last resort,” says Talbot. “Instead, organisations need to be braver and walk towards conflict.” Author - Jane Simms Publication - People Management magazine, August 2017 www.peoplemanagement.co.uk

“It shouldn’t be about who’s right and who’s wrong; who’s going to win and lose,” says Talbot, whose approach is to get people to forget about what’s happened and focus on finding a solution both sides are happy with. Efthymiades agrees: “Facts are largely irrelevant in conflict resolution; it’s about finding out what people feel, their perceptions of themselves and each other, and what a realistic solution might look like.”

Dr J P Rosie

Mr Robert Hensher

BDS MSc

Forensic Odontology

BDS, MRCS LRCP, MB ChB (Hons), FDSRCS, FRCS, ATLS

Consultant Oral and Maxillo-Facial Surgeon Mr Robert Hensher is one of the most senior maxillofacial surgeons in London and the U.K. He can act as an expert witness, including the preparation of medico legal reports and appearing in court, in all cases relating to this area. Mr Hensher’s subspeciality interests include dental implantology, salivary gland surgery and temporomandibular joint replacement. In this latter area his practice has the widest experience in the U.K. and he receives tertiary referrals from consultants nationwide for this operation.

Please contact Dr Rosie at; 6, Harrockwood Close Irby, Wirral, Merseyside CH61 3XY

Mr Hensher has published in peer reviewed journals and has written a chapter in a contemporary maxillofacial text book regarding temporomandibular joint prosthetic replacement.

Tel: 01745 443175 Mobile: 07885 158 039 / 07963 963194 Fax: 01745 344574 Email: john_rosie@lineone.net John.Rosie@cd-tr.wales.nhs.uk(w) GDC No. 44540

Contact: The King Edward VII Hospital Beaumont Street, London W1G 6AA Phone: 020 7467 3232 Fax: 020 746 3233 Email: roberthensher@gmail.com

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Expert Witnesses in Accounting Disputes by Charles Yorke and Jason Shaw - Allen & Overy LLP At a time of increasing disputes involving accounting evidence, this case debunks a number of assumptions about the approach taken by both HMRC and the First-tier Tribunal. HMRC do not always instruct their own employees as their expert witnesses. The fact that an approach has been audited by one of the Big 4, or is even supported by all of them, is not enough. The Tribunal is far more interested in a clear and logical analysis of the standards themselves. The quality of the analysis presented by an expert will be crucial: Ball UK Holdings v HMRC [2017] UKFTT 457. We have seen many tax cases concerning questions of accounting over the past few years. There have been 12 since the beginning of 2015, more than in the previous ten years put together. The accounting question in this case is a simple one: should the appellant have prepared its statutory accounts in US dollars or in pounds sterling. That turned on whether the taxpayer applied FRS23 correctly. Avoidance was allegedly involved, but that is not the focus of this article. It may or may not have affected the outcome. The case is interesting because of HMRC’s

choice of expert witness, and also because of the comments made by the Tribunal about how it approaches accounting evidence. HMRC’s expert witness HMRC normally instructs one of its own employees as expert witness on accounting matters. Rightly or wrongly, there has historically been an assumption that a Tribunal would generally prefer the evidence of one of the Big 4 firms over an HMRC employee. Here, however, HMRC instructed David Chopping who is the head of Moore Stephens’ Audit Technical Department, and of the ICAEW’s Technical and Practical Auditing Committee. Mr. Chopping has been instructed by HMRC at least twice before: recently in Smith and Nephew Overseas Ltd v HMRC [2017] UKFTT 151 (TC), and a few years earlier in Fidex v HMRC [2013] UKFTT 212 (TC). Out of over 25 cases involving expert accounting evidence heard over the past 15 years, these are as far as we are aware the only three occasions in which HMRC have not instructed one of their own employees to act as expert witness on accounting issues. Even so, advisers need to treat HMRC using external accounting expertise in the future as at least a realistic prospect now. What does it mean to be GAAP compliant? The first question addressed by the Tribunal was whether a taxpayer has to prove it applied GAAP correctly, or merely that it had adopted a reasonable interpretation. The application of GAAP is not, and has never been, black and white. Drawing up accounts involves judgement. The judgement is to be exercised by management of the company, and not by the auditors, and in doing so management can do no more than prepare accounts on the basis of a reasonable interpretation of the relevant standards.

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The Tribunal accepted that all of these accountants had agreed with the appellant. It nevertheless preferred Mr. Chopping’s evidence, concluding that just because a number of accountants take one view of an accounting standard does not make it GAAP compliant. It is interesting to note that the Tribunal was willing to prefer HMRC’s expert evidence notwithstanding the apparent support for the appellant’s approach from three of the Big 4.

The courts have accepted that where there are a number of GAAP compliant approaches that can be taken, a taxpayer is free to adopt any of them (see Johnston v Britannia Airways [1994] STC 763 and more recently Versteegh Limited v HMRC [2013] UKFTT 642 (TC)). In this case, the appellant argued that, in preparing GAAP compliant accounts, a taxpayer merely has to adopt a reasonable interpretation of the accounting standards. Each interpretation that is reasonable would be GAAP compliant.

This may well be because the expert witnesses were both from only one of those firms. The Tribunal did not infer anything about the correctness of their expert evidence from the fact that the appellant’s accounts had been audited by another firm and approved by an accounting opinion from a third. In the absence of cross-examination by the Tribunal of the audit partner and of the author of the accounting opinion, this meant nothing more than two other individuals agreed with the expert evidence. This does not make general acceptance. The Tribunal inferred very little therefore from the audit and the existence of the accounting opinion.

The Tribunal disagreed. It drew a distinction between interpreting the standard, which must be done correctly, and applying that interpretation to a given set of facts which involves judgement and so does permit a number of reasonable approaches. In practice, there may be some doubt about the correct interpretation of a given standard. If there is, then the job of the expert is to give his or her opinion to the Tribunal on the merits of each possible interpretation. It is then the job of the Tribunal to decide on a balance of probabilities which of those interpretations is or are correct. It is not enough for an expert to merely say whether a given interpretation is a reasonable one: a reasonable interpretation may be found on a balance of probabilities not to be correct. The expert must instead explain why he or she considers that his or her interpretation is correct.

Instead, the case simply turned on whether the Tribunal preferred the evidence of HMRC’s expert (the head of Moore Stephens LLP’s Audit Technical Department and of the ICAEW’s Technical and Practical Auditing Committee) or the appellant’s experts (lead of the KPMG accounting advisory services team and an IASB practice fellow). Each of the experts was clearly highly regarded in their profession. As such, all the Tribunal could do was evaluate the evidence presented on its merits.

The Big 4 In practice it seems to be that both taxpayers and advisers have assumed that HMRC would find it difficult to win a dispute on an accounting point against an expert from one of the Big 4 firms of accountants.

An analytical approach The Tribunal took little from the position taken by one of the appellant’s experts that his interpretation was GAAP compliant because it had been adopted by all of the Big 4. The expert supported this position by reference to the Big 4 manuals.

Greene King v HMRC [2012] UKFTT 385 (TC) is the case that first suggested that this might not always be the case. The Tribunal found for HMRC even though the appellants’ accounts had been audited by one of the Big 4. However, on a closer reading it is apparent that the audit partner was not an expert witness, he was a witness of fact. This is an important distinction, and quite rightly the Tribunal acknowledged that his evidence concerned “what was done, and why it was done” rather than whether it was GAAP compliant. The appellant’s expert witness was a director employed by another firm outside of the Big 4.

The Tribunal conceded that the Big 4 manuals could be helpful: “… [W]here the meaning of an aspect of an FRS is unclear, the generally accepted interpretation of that part of the FRS may be apparent from the Big 4 manuals, particularly if they are consistent with each other on the point. Nevertheless, where the FRS is clear the Big 4 manuals do not override it.” However, rather than simply relying on the Big 4 manuals, the Tribunal was clearly looking for analytical evidence justifying the interpretation taken primarily by reference to the words of the relevant standards, supported by the context, the spirit and purpose of the standards and the background notes and basis of conclusions. HMRC’s expert evidence was accepted because this was the approach taken by their expert.

Greene King was therefore not a case where HMRC won an accounting dispute “against” one of the Big 4. Ball UK Holdings Ltd is. The appellant’s accounts were audited by one Big 4 firm. The appellant instructed two partners from another Big 4 firm as expert witnesses. There was also a report prepared by a third Big 4 firm agreeing with the appellant’s position. EXPERT WITNESS JOURNAL

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− Evidence of what the Big 4 manuals say, and of the approach generally taken by accountants, will be helpful to some extent, but evidence of this nature should not supplant the analysis. ■

What does this mean? − Tax advisers should not assume that accounting advice from one of the Big 4 firms cannot be challenged by HMRC. Here, the appellant’s accounting was supported by three of the Big 4 firms. Generally one would have thought that such a position would be unassailable. This case goes to show that it may not be.

− If you do not understand or are not persuaded by the accounting advice you have received, do not be surprised if you cannot persuade HMRC that it is correct.

Charles Yorke is a partner in the Allen & Overy tax group. He advises on corporate tax generally with a focus on finance and disputes. Email: charles.yorke@allenovery.com Tel: 020 3088 4925.

− The same goes for litigation. Disputes about accounting will be heard by a Tribunal Judge at the First-Tier Tribunal, one or all of whom will be a tax professional. The best way to stress test your expert’s evidence is to keep testing it until you understand it and are persuaded by it.

Jason Shaw is a senior associate in the Allen & Overy litigation group, with a particular focus on tax and pensions disputes. Email: jason.shaw@allenovery.com. Tel: 020 3088 2241

− Managing your expert will be key – it will be important to make it clear from the outset that his or her role is to give an opinion on what is the correct way to interpret the standards. The opinion should be analytical by reference to the standards themselves and their supporting notes.

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The Wrong Prescription Medication errors are a significant source of harm for many claimants (and non-claimants!) They can cause life changing catastrophic harm and injury, not to mention the financial strain on all concerned Problems can occur throughout the entire medication process – from prescribing, dispensing, administration, to monitoring of effects.

tion. Clinical pharmacists draw up protocols and guidelines for the use of many drugs and are in effect guardians of medication safety.

The role of the clinical pharmacist As a clinical pharmacist it is my responsibility to ensure “the safe and effective use of medicines.” The role of the pharmacist has evolved greatly over the past few decades, so that the traditional view of the pharmacist in the dispensary checking dispensed prescriptions no longer holds true for the profession as a whole. The clinical pharmacist is usually found at the patient bedside or in the GP surgery and is involved in all aspects of the medication process, from advising doctors on appropriate drug therapy, to ensuring systems are in place to promote safe prescribing and administration of medication, to educating patients, carers, medical and nursing staff about drug therapy.

Recognising and minimising the risk Because of this role it means putting systems in place to minimise medication errors and this involves an understanding of what can go wrong and a depth of experience of what has gone wrong in the past. Most healthcare professionals are unaware when they have made medication errors and the clinical pharmacist can and does identify these and provides education and improves systems to make sure they don’t happen again. It is this experience that can prove invaluable as an expert witness in medicines, drugs and therapeutics, the ability to recognise that something has gone wrong, and how that has come about. Prescribing Prescribing medication is the most common medical intervention that doctors will make in their careers. However, like many aspects of medical training, learning about prescribing is experiential and formal training is patchy in medical schools. When I started education in prescribing skills for fifth year medical students more than ten years ago at the University of

Experts on all aspects of drug therapy The clinical pharmacist is an expert on drug therapy and should be aware of all the potential dangers inherent in the medication process, as well as making sure the patient is receiving the most appropriate drug in the right dose and frequency for their condi-

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Manchester, the students would usually ask why they had never had this kind of training before. Many qualified doctors to this day don’t have formal training in prescribing skills. This means that doctors pick it up as they go along and end up learning from their mistakes which can pose problems for example in the hospital environment where the least experienced doctors do the vast majority of the prescribing. Two studies of prescribing errors the EQUIP and PROTECT studies showed approximately 2/3 of all hospital prescriptions are written by year 1 and year 2 doctors, with an error rate of between 7.5 to 10%. This compares to consultant error rates of around 6%. The PRACTiCE study in general practice also highlighted at least one error occurring in every 20 prescriptions

sugar which can lead to severe brain damage or death can and do occur with depressing regularity Inappropriate use of these other drugs can result in serious harm and death and there are many examples of these recurring over the years. Inappropriate administration of vincristine (a chemotherapy drug) injected into the spine causing death happened a shocking 18 times before a concerted effort to prevent this happening again was undertaken. There are many other examples. Methotrexate is a drug used for some inflammatory conditions but is usually only given once a week. Lack of understanding of this when patients are admitted to hospital has led to patients being prescribed and administered this powerful immunosuppressant every day, leading to bone marrow damage and overwhelming infection and death. This has happened on multiple occasions.

Although these rates seem scarily high, the vast majority of these errors are very minor or never get to the patient through intervention from other health care professionals such as nurses, pharmacists and other doctors so that they have no potential for harm.

Many other drugs have the potential to cause harm if they are prescribed for the wrong patient, in the wrong dose, wrong frequency or by the wrong route. What can go wrong? There are a large number of variables to take into account before prescribing a drug in a process that is usually undertaken in an instant.

The other side of that coin is the number of errors that do significantly impact on the patient causing temporary or permanent harm, or are even fatal. 20% of all clinical negligence claims against doctors are for medication errors at an estimated cost of £1 billion per year in additional health expenditure, not to mention litigation costs. Annually there are over a billion prescriptions issued in primary care alone.

• Is it for the right patient? Making sure you have the right patient sounds basic but mistakes happen frequently • Is it the right drug? Misprescribing the wrong drug can happen for many reasons. The days of handwritten prescriptions are for the most part behind us in the community, but electronic systems bring their own hazards. Misselection of drugs from drop down menus are a frequent source of error.

Medicine has evolved from the days of the generalist who had a wide experience if not specialist knowledge of patient conditions as a whole, to the superspecialists of today who focus on one organ or even specific parts of one organ. In cardiology for example there are specialists in abnormal heart rhythms, heart failure specialists, interventional cardiologists who clear out blocked coronary arteries and so on. This super-specialism means they become more and more focussed on one particular aspect or location of disease which can lead to deskilling from other fields.

Similarly the universal use of smartphone apps can and have lead to mistakes in choice of drug prescribed. Dr Google doesn’t actually have a medical degree.

Its not just doctors who prescibe these days. Other health care professionals such as nurses and pharmacists are increasingly taking on the role of prescriber after additional training has been undertaken.

Omission of drugs for a particular condition too are common errors. I have come across many cases where patients have developed an abnormal rhythm of the heart, atrial fibrillation, and should have been prescribed anticoagulants (blood thinning drugs) to prevent blood clots forming in the heart but this has been overlooked and has lead to strokes. I have been involved in numerous claims where this has been a problem, or where for some reason there have been delays or omissions in prescription or supply.

Common culprits The most common drugs that can result in harm are antidiabetic drugs including insulin, anticoagulants (blood thinning drugs), painkillers including opiate type drugs, chemotherapy and antibiotics.

Similarly, failure to regonise how sick patients can be led to serious and sometimes fatal consequences. Patients with infections can become very ill very quickly if they are not prescribed the correct antibiotics in a timely manner. Recognising the septic

Insulin is probably the number one drug in terms of causing serious harm to patients. If the dose is too large, or there is a break in the food intake of patients with no monitoring, serious episodes of low blood EXPERT WITNESS JOURNAL

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patient means that antibiotics should be given within an hour of diagnosis - there are many examples where this has not happened with devastating consequences.

to depressed breathing and respiratory arrest. Not taking kidney function into account is a very common cause of error and I have seen dozens of examples of this.

• Do I know about this drug before prescribing it? It should be a fundamental principle that any doctor prescribing a drug should have some knowledge about what they are prescribing, but this is sometimes not the case and can happen when doctors are busy, or continuing the prescriptions that other doctors have initiated. In particular, prescribing on someone else’s advice such as a specialist can bring it’s own dangers. There have been cases where a typo adding an extra zero to the dose of a drug from a letter to the GP leading to a tenfold overdose has resulted in serious harm to a claimant. There is no defence that “a big boy done it and ran away” Responsibility for the prescription remains with whoever prescribes it.

• Are they elderly? Are they a child? Older patients and children handle drugs very differently from adults and drug dosages tend to be very individualised for children depending on their body weight. It is not uncommon to make mistakes in calculations for children that can lead to a tenfold overdose. It may be the case that a patient has been taking a drug for many years but as they get older the effects of the drugs become more potent with accompanying side effects and this has not been recognised leading to successful claims. • What other drugs are they taking? Is there a potential for serious interaction? There are certain drugs that can have their effects boosted and therefore more potent when new drugs are prescribed. A common example is the antibiotic clarithromycin which many patients are prescribed for short courses for chest infections. I have seen dozens of cases where this has caused problems with long term medications such as transplant medications or antipsychotic drugs, among others. It is impossible to keep track of all the interactions that drugs can have with each other as dozens of new drugs are released onto the market every year. There may be a reliance on software to flag these up when they are being prescribed on electronic systems but the number of alerts that are generated for trivial reasons means that the user very quickly develops alert fatigue having to click through all of the warning screens that it is all too easy to miss the ones that matter. Again I have come across many examples of this leading to harm, both in doctors and pharmacists electronic systems

• Is it the right drug for the patient? Another common factor when things go wrong is that the prescriber doesn’t know enough about the patient. They don’t have enough knowledge of the history of the patient to be able to make an informed choice about the drugs they are prescribing. This happens all too commonly when things go wrong. • Do they have allergies, intolerances? It never fails to surprise me the number of times that no heed is taken of the patient’s clearly documented allergies or previous intolerances to drugs. Perhaps it’s the pharmacist in me but the very first thing I do when scrutinising prescriptions is to check this first as a matter of course. Another pitfall in the allergy/intolerance conundrum is to go the other way entirely. I have seen examples where patients who have stated they are allergic to penicillin are given an inadequate substitute and develop a serious life threatening infection or who have even died of septic shock. Overstating minor intolerances can lead to potentially life saving or disease modifying treatments being withheld inappropriately.

• What are the side effects and have I warned the patient about these? Recognition that a drug is causing a side effect comes back to knowing about the drug that is being prescribed. It is the responsibility of the prescriber to know about the drug they are prescribing. There are multiple cases where claimants have made repeated visits to the GP and it has not been recognised that the symptoms are in fact due to side effects of the drug they have been taking, even when these side effects should be common knowledge to the prescriber. Angioedema (swelling under the skin and soft tissue) is a rare but well known side effect of an antihypertensive group of drugs called the ACE inhibitors. The claimant had been seeing his GP over a period of months with these symptoms, but it was only on an incidental visit to hospital that a relatively junior doctor recognised the symptoms and made the correct di-

• What about other conditions they have - will it affect them in any way? Certain drugs can have adverse consequences in some disease states and these need to be taken into account. Some anti-inflammatories and antihypertensive drugs can cause worsening of kidney function in predisposed individuals, for example and again is a common cause of prescribing error •Do they have kidney or liver damage that would affect the way the body handles the drug? Poorly functioning kidneys and/or liver can mean that there is an accumulation of the drug in the body leading to toxicity. Some opiates can do this, for example morphine can accumulate in kidney failure leading EXPERT WITNESS JOURNAL

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agnosis. After stopping the ACE inhibitor the symptoms disappeared and a successful claim was made.

upon tend to lead to alert fatigue and the important ones can be missed. Most interactions are minor however there are a number of serious interactions that can have devastating consequences for patients.

• How do I know if the patient is developing toxicity? How do I know if it’s working? Monitoring the effects of prescribed drugs is an essential part of the prescribing process but it is often surprisingly overlooked. Once the drug has been prescribed it is sometimes seen that this is the end of it, but the prescriber needs to know if the patient is experiencing toxic effects of the drug or that the drug is having the desired effect. If it is not having the desired effect then the particular disease being treated can progress with serious consequences. Monitoring the effects of cholesterol lowering drugs such as the statins, for example, is vital to ensure that patients are not at risk of worsening cardiovascular disease such as heart attacks or strokes

Counselling patients on the proper use of their medication is an integral part of the pharmacist’s duty to make sure that the patient is involved in the decision to engage in their treatment and to understand the risks and side effects of their treatments. Adminstration errors Medication administration errors are defined as difference between what the patient received or was supposed to receive and what was intended. These types of medication error can be made by nursing staff and doctors directly administering drugs to patients. Mis-selection of drugs is probably the most common type of error. A nurse being interrupted on a medicine round causing distraction can lead to the wrong medication being administered, or an anaesthetist taking a vial of what they believed was an antibiotic only to find that on administration to the patient that it was a general anaesthetic or a paralysing agent which unfortunately happens all too often even now.

• Does the patient have enough information about the drug for them to take it safely? Patients need to be involved in their treatments. They need to know the best way to take it, what to look out for in terms of side effects and so on. It might be the case that one drug that the patient has been taking has proved ineffective so the intention is to replace that with a more potent drug that does the same thing. An example I have come across is a patient taking a statin drug to lower cholesterol. When the cholesterol wasn’t lowered enough a new drug was prescribed. The specialist, the GP and the pharmacist never made sure that the patient was aware that they were to stop taking the initial drug and the patient went on to develop life threatening toxicity as a result.

Checking and double checking intravenous drugs is the source of potentially most harm. Because intravenous drugs are injected directly into the bloodstream they have immediate and potent effects, and mistakes in selection of drug , how it is prepared or how fast it is given can have disastrous consequences for the patient. In the busy ward environment there is plenty of opportunity to take short cuts in the checking procedure and to accept that what someone is telling you is actually the case rather than checking independently. This is known as automaticity, the checker believes that they are checking a syringe of potassium when in fact it’s a syringe of morphine leading to respiratory arrest.

All of these things need to be processed in an instant when the prescriber is choosing a drug for a particular patient. Mercifully, significant mistakes are relatively rare. Dispensing errors When the prescription is dispensed this can lead to problems also. By far the most common error in the pharmacy is the selection of the wrong drug. There are numerous examples of this eg a claimant was given a diabetic drug instead of her usual beta blocker. A double whammy as the claimant collapsed with low blood glucose and developed a fast heart rhythm because she didn’t get her usual beta blocker.

Mistaking one prepared syringe for another, or the use of unlabelled open systems with clear fluids in the operating theatre is a real and all too common problem. Making up the drugs in the wrong way can also lead to serious harm. Injecting concentrated solutions that are supposed to be diluted can cause serious tissue damage or organ toxicity.

Pharmacists have a duty of care to their patients just as any other healthcare professional. Many pharmacists and doctors don’t appreciate this. They need to make sure that any mistake or oversight made by prescribers does not get through to their patients , even if the prescriber insists that was what they intended and allowing the prescription to go ahead

There are multiple other things that can and do go wrong, and it is vital that practitioners are provided with the right training,environment and support to mitigate the risk. Summary Medication errors are a significant problem in medical injury and clinical negligence cases. The clinical

Checking interactions is also a basic part of the pharmacist’s role, but again electronic systems if relied EXPERT WITNESS JOURNAL

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pharmacist has a vital role in minimising the occurrence of these problems, but when they do happen being able to recognise them in the first place. The medication process involves many complex steps and there is opportunity for error along the way. The examples highlighted here are just a snapshot of the wide range of things that can go wrong.

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Fire Risk Versus Commerce and Governance by David Townsend FIFireE, MCSFS, Introduction Fire investigation has for many years now been far more than only a matter of cause and origin. With the general increased awareness of the value of thorough and complete fire investigation its tentacles soon developed to include fire spread, materials, structure, systems, management and of course .... culpability.

degree of risk acceptance is unavoidable and a competent risk assessor will take that on board. Inexperienced risk assessment often results in blind adherence to applicable guides or codes plus extra measures just to ensure there is no come back on the assessor. It is added protection for the risk assessor but poor value for the client.

In the UK the role of fire risk assessor, after the enactment of the Regulatory Reform Order, was thought by some to be a “Consultant’s charter” and regarded as a safe bet because the designated Responsible Person carried the can entirely.

Recent experiences of fire risk assessment reviews by one of our fire investigators show that these are being done by people who have an H&S qualification and follow codes with little understanding of their implications. In addition, they have little or no fire experience and this leads to basic or generic statements covering fire risks on the assessment. Many actual fire risks are often missed leading to no measures being put in place to mitigate those risks.

Safe from legal consequences perhaps but those who had experience with the Coroners Courts were aware of the fact that the fire risk assessor was not so safe. Then, in 2014, a fire risk assessor was named and effectively blamed for the death of a young woman. It was only a matter of time.

Similarly, with site specific fire risk assessments, where the lack of fire knowledge tends to ignore things applicable to the emergency services such as access, communication and procedures should an incident occur.

From a fire investigator’s point of view a Fire Risk Assessor is just another contractor. Same as any designer, manufacturer or installer: If something he or she has or has not done may have been a contributory factor then it will be duly noted and reported.

A reasoned and logical risk assessment will be cognitive both of business and of governance issues. It will be practical and cost effective. Solutions can often be found by experienced experts that are a fraction of the cost of recommendations from others who may be dogmatically code-compliant and less experienced.

This is another example of how fire investigation closes the feedback loop into many branches of the fire safety industry. It is one of the key drivers in the identification of fault and the subsequent improvement of products and systems. And of course liabilities.

Commerce However, the pressure of business and competitiveness in the private sector and the pressure of governance in the public sector are resulting in unacceptable risk, and the risk assessor or other relevant industry expert may be either complicit or ignored.

But what about the fire investigator? Are we not also possibly culpable? Of course we are. Our reports are often crucial in the actions taken by others. Actions that may cost other parties their liberty and livelihood. Litigation is always potentially knocking on the door and where fire has been involved then there will probably be a fire expert behind it.

An example of worst practise is the Pinto scandal, USA, in the 1970s: Short term fixes for a known and fatal fire hazard were ignored on the basis that to recall and repair immediately would cost more than the projected compensation claims.

Risk assessment Responsible persons AND risk assessors rightly carry a burden of culpability for their decisions. Those decisions may be called to account, if not in criminal or civil court then certainly by a coroner, at any time in the future. Even in retirement.

A more recent example is the Takata air bag recall: Industry experts had known of a defect that arose from a marginally cheaper but nevertheless standards-compliant production model but some major car manufacturers opted for the cheaper model. The result has been the biggest vehicle recall ever.

Risk assessment applies not only to the issue at hand but also to solutions to that issue. The world cannot be wrapped in cotton wool (even if fire resistant) so a EXPERT WITNESS JOURNAL

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A household white goods manufacturer recently dealt with a known and identified fire hazard in the UK by opting for a home repair scheme rather than a recall. Of course it takes time for engineers to attend to each known appliance and the estimate to complete the task was of around nine months. As no surprise to many fire experts, there was a fatal fire caused by one such defective model before an engineer had visited the property.

apart. I await the inquest. It has been well over one year already!

Despite this, another white goods manufacturer subsequently opted for the same solution regime! Well…hot off the press….and at no surprise to any fire expert (except maybe those from the USA who attempted to defend the case), that particular model of appliance was only last month held by a Coroner to have been the cause of a double fatal fire.

In this respect the Kings Cross London Underground fire was a good example: Following two previous fires in the Underground network at which only one life was lost, authorities and agencies having jurisdiction were unequivocally and emphatically warned by fire professionals that there was clear and present danger.

As luck would have it, for want of a better phrase. I am one of the 3m owners of this model appliance. I wait with bated breath for the next phase of the manufacturer’s action plan. In the meantime, it remains unused in my garage as it has done from day one of the first Safety Notice.

And of course now we have Grenfell Tower in London. I am limited in my comment because I believe it right and proper to await the public inquiry. It already is clear that the well known issue of flammable insulated cladding is a major factor, and that is bad enough given the known history. However these cases will always raise other issues and Grenfell will be no exception: Build and contractor quality, plastic window frames, internal refurbishment, care and maintenance, control and education of occupiers, etc.

After the experts Sometimes there is dispute or disagreement between agencies and authorities but while the dispute continues the status quo remains. Disputes are either resolved or there is a repetition which results in greater losses. Whichever comes first.

Uber in Singapore has recently come under fire for apparently purchasing a fleet of electric vehicles with a known fire-related defect. But such headline cases often hide a huge weight of detail within which an effective and experienced fire expert may find clear evidence that there had in fact been no deliberate or culpable act by the accused.

It appears that the Grenfell fire had started in a kitchen and possibly at a fridge. This is yet another subject of substantial and proven study by fire professionals: Known fire defects and flammable insulation in many models. Defects that some manufacturers clearly choose to accept the risk or ignore unless made mandatory.

Governance Governance issues relate to research and fires that have led to known and proven defects to structures under regulatory, local or national government control. Here the problem is often the fact that redress of the issue is from public funds and this is not a bottomless pit. But there is also a great deal of feet-dragging. Not, hopefully, intentional. Persons ultimately responsible have high-piled in-trays. They may lack experience or appreciation of the danger, or they move on to other departments and new-comers must begin again.

I once researched and proved a fire-related defect in an everyday household item. This resulted in a meeting at the UK Department of Trade and Industry with major retailers. It was assumed (or I had at least hoped) that the meeting would lead to agreement on safety labelling. At the very outset of the meeting one retailer asked “Are any proposals to be mandatory?” The answer from the Governance agency was “No”. There were no further meetings and once again the fire expert had wasted his time and was left hoping he would not have to say someday “I told you so”. Some years later two fire-fighters died in an incident directly related to the same product.

Smoke screening, delay and “muddying of the waters” can result in an incident falling from public view. In 2016 in Hong Kong, two fire-fighters died in two separate events, 24 hours apart at one single, continuous fire incident. This is unprecedented. There was clearly something wrong. The HK government and local authorities reacted swiftly and in apparent public view: They promised to appoint an independent expert. It did not happen. They emphasised strongly that if this had been a deliberate fire then, in honour of the deceased fire-fighters, they would leave no stone unturned. This was never likely to have been an arson fire and could not have been relevant to the fact that the two fire-fighters were killed 24 hours EXPERT WITNESS JOURNAL

Maritime In the maritime industry there are many known and proven (or predicted) concerns; ship condition, misdeclared cargo, Very Large Container Vessels (VLCV), Roll on Roll off Car carriers (RoRo), Very Large Ore Carriers (VLOC), crew training and competencies. The business pressure on owners is considerable but the chances of a major incident leading to substantial 23

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and mandatory change appears rather low. Unfortunately the life risk is also low with many large ships requiring a complement of less than 25 crew. I described the life risk as â&#x20AC;&#x153;unfortunatelyâ&#x20AC;? low. It is the loss of life that makes the headlines. It is the loss of life that makes mandatory change. But sadly it is too often a fact that there must be many lives lost before change is mandated.

Perhaps risk assessment contractors should be better regulated and/or tested. Third party accreditation schemes can then apply but the fundamental principal of self-regulation in the Fire Safety Order is unaffected. The responsible person may be defined in law or be determined by a Court. But there is moral responsibility: Anyone who has knowledge of a circumstance or issue that presents imminent or inevitable danger has, from that moment, ownership of that danger.

Complacency One by-product is complacency. When any industry or trade is allowed to continue without improvement there is likely to be a further drop in standards. When complacency reaches the highest levels of business or of Governance then other standards drop and a major incident is inevitable.

Fire experts have such ownership so we must continue to learn from our experience, to do our research, and to bang our drums. If we are silent for a minute then the perception (or excuse) will be that we have or had nothing to bang about.

Complacency becomes one of the many steps that make up the â&#x20AC;&#x153;perfect stormâ&#x20AC;? of a major catastrophe. One big, permanent step into what I term the â&#x20AC;&#x153;Incident Pitâ&#x20AC;?. Once that pit is opened then the other factors that serve to render the pit inescapable can more easily fall in.

In criminal defence, where the burden of proof in most Countries is â&#x20AC;&#x153;beyond reasonable doubtâ&#x20AC;?, the scales of justice are clearly and dramatically tipped one way or the other. In civil matters the burden of proof is on â&#x20AC;&#x153;probabilitiesâ&#x20AC;?. Now the experts are fully tested. Now the clients realise the value (or folly) of their original choice. Now the scales of justice are a true balancing act on which all detail is relevant. But there is no room for sitting on the fence. An expert is rightly expected to make a firm decision. To justify, prove and stand by that decision but to be open always to new evidence and review.

What to do? Zero-tolerance policies and adequate training are cost-effective but this will only happen if the responsible persons can be convinced that, on their watch, a major loss will otherwise probably occur. Consciously or not many choose to survive on their luck. Hopeful that nothing will happen and that the sheer weight of fire experts, insurers and lawyers will not someday come crashing into their lives.

David Townsend Principal Fire Investigator Andrew Moore & Associates (S) Pte Ltd.

Electrical Investigations

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Fire Investigation and the Expert Witness by Mark McCabe MI Fire E, IAAI-CFI. IAAI-ECT Are expert witness meetings whether court ordered or otherwise, a necessary evil or a pointless exercise? Are they meetings of minds or bruising battles of ego? Are they an under employed method of shortening trials that are ideally suited to times of fiscal austerity? Are they helpful to the court, the judge, the advocates, the jury and most importantly those at the centre of the trial, the defendant and the victims of the crime?

My experience in this respect is that the expert could be a junior fire officer with little specialist training; may be a more senior fire officer with some specialist training, or a specialist fire investigation officer; I know of cases where a scenes of crime officer assumed the mantle of expert fire investigator for trial. Forensic scientists were routinely brought in by the Police during any major investigation and consulting scientists or other fire investigators acting for insurers can always be suborned into a prosecution team. In some cases the team approach to fire investigation meant combinations of this disparate bunch of people were requested to attend trial as expert witnesses.

I will endeavour to answer those questions to the satisfaction of all the readers. I hope that my opinions regarding this increasingly important area are helpful. I have tried to provide the occasional insight, some light-hearted, into this area of expert witness casework as far as it concerns Fire Investigation, my field of expertise. Before answering the questions I feel it is appropriate to explore the background to the need for expert’s meetings.

The situation leading up to civil trials is generally different to that in criminal trials. In general fire investigators will be appointed to investigate the origin and cause of fires by interested parties, normally employed by insurers for contents, or buildings insurance. These will be in addition to any local authority investigators, who, naturally, are first at the scene. In some cases the local authority investigator will have left before the insurers representatives arrive, but they should have recorded any investigation they carried out for the benefit of later investigators.

Having worked as a local fire authority fire investigator, my first experiences of court ordered expert meetings was as an expert for the prosecution in criminal trials. In recent years, working in the private sector, my experience had broadened to include preparations for civil trials requiring such meetings and of course defence work in criminal trials.

If the fire spreads beyond the first property it creates additional complications and further experts may be appointed. In addition, building owners, contractors and other interested parties may feel obliged to appoint fire investigation experts. This decision may be taken early or might occur subsequent to the original investigation.

This nation’s legal system and the associated rules and procedures date back to the common law codified by Henry II. The principles underpinning it date back further into Saxon times. The distinct branches of today’s legal system all have their own procedures governing the conduct of trials and specifically the use of expert witness. There are many similarities in those procedures, so they can, for the purposes of this article, be treated as though they were the same.

Civil trials relating to fire investigation may arise as the consequence of insurers refusing to pay a claim, uninsured occupants seeking redress from manufacturers or service providers considered to be responsible for the fire, or may result from insurance subrogation issues.

As far as fire investigation for criminal trials is concerned the expert witness for the prosecution will be someone who investigated the scene to determine the origin and cause of the fire and concluded that the fire was started deliberately.

Expert witnesses for fire investigation are therefore more likely than not to be current practitioners in scene investigations. In rare cases they may have attended the specific fire scene in the legal proceedings simultaneously with the expert they later find on the other side of litigation or legal proceedings.

The disbanding of the forensic science service, the proliferation of forensic suppliers and the downward pressure on police and other public service’s budgets have combined to produce a patchwork of systems nationally. The team approach employed to good effect,for many fire related investigations under the police umbrella, has been replaced by pragmatism and the use of cost effective available resources. EXPERT WITNESS JOURNAL

The first meeting between experts, prior to a trial, may well be working together at the scene. One would think that this early collaboration might result in agreement about most aspects of the three main 25

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but when the expert attends for trial they should be prepared and so there is little inconvenience in holding the meeting at that time. Such meetings then allow ‘hot tubbing’ of expert witness testimony that has increased in frequency in recent years. Thus the experts have no requirement to stay at the court beyond the time it takes them and their opposing expert to give evidence and in many cases assist with cross examination.

matters concerning most fire investigators: origin and cause determination, and fire development. However, experience has indicated to me that this is not always the case, nor should it be. When all experts are working together in a team, this early collaboration can be healthy; resulting in testing of theories and hypothesis by peers at this early stage can prevent successful challenges later by adversarial experts. It is rare that experts employed by completely opposing vested interests work simultaneously at fire scenes but the fire investigation community is relatively small and information sharing between experts is common, although often qualified by reference to the client before requested information is provided.

Whole chapters and entire tomes are given over to meetings, their purpose and their organisation, how the room should be set out to advantage and various other minutiae. It is not my intention to regurgitate the contents of any training manual on how to conduct a meeting.

Depending upon the scale of the incident interim meetings may take place. Each meeting is an opportunity to test and debate the conclusions drawn from the detailed examinations that should have taken place; before the origin determination, cause determination, classification of cause and responsibility for cause and development have been recorded in a report or statement.

My experience is that multiples of two people sit in a room divorced from distraction with pens, blank paper, reports, photographs, specific texts and on most occasions provide a list of things they agree and disagree about. On one memorable occasion when I was the expert for the crown, the expert for the defence sat with arms folded and announced confidently that of course I must agree with all of the conclusions of his report. He seemed blissfully unaware of the many paged rebuttal I had provided some weeks before so I left him alone with that for a while. The defendant, possibly gauging the likelihood that he was not going to be acquitted, failed to turn up and the trial was abandoned. That meeting was never completed and a suitable community order was ultimately imposed upon the defendant.

It is at this stage, where an expert (or experts) has put pen to paper that in the majority of cases the legal process of employing an opposing expert commences. For example, in civil cases a plaintiff will become aggrieved at the conclusions of the expert employed by his insurers that means no payment or a reduced payment is made, so the plaintiff will seek an expert to review the data; or in criminal cases once charges are brought against an individual the defendant’s legal team will appoint, or apply for funding to appoint, an expert.

Such meetings can last several days, the facts at issue can be debated, analysed, reviewed, ultimately some form of document has to be produced. This document may take months to be finalised, being passed back and forth whilst words and phrases are included, or deleted or changed to a more acceptable form. Whatever the process and however long it takes the result should be a distillation of the items that are agreed and the facets about which the experts disagree.

Routinely, prior to any expert meeting, a report will be produced by the plaintiff ’s expert (in civil) or the defendant’s expert (in criminal) cases. The contents of this counter report will generally be akin to the terminals of a battery gathering the negative and positive charges, or in this case arguments, together. This counter report and any interim rebuttals form a basis of any court ordered meeting. The polarised areas of agreement and disagreement may have been discussed and rehearsed in the report and amplification upon these topics will occupy the time spent in court ordered expert meetings.There is no formal procedure to what must be done nor any set output from these court ordered meetings. The judge issues directions and generally focused upon what the experts agree and disagree upon. The premise is that no court time is wasted debating matters that are not at issue.

The overriding duty of the expert is to the court not to the client. As long as everyone involved bears that principle in mind and conducts the meeting with mutual respect I suggest that the outcome is a benefit to the legal system.

It is not unknown that the expert arrives at the court on the first day of the trial and is instructed that an experts’ meeting is to take place. Ideally the meeting should take place weeks or months prior to the trial,

I have attended trials where the use of an expert meeting would not have been appropriate and also trials where no meeting was ordered that would have benefitted from such a meeting.

EXPERT WITNESS JOURNAL

I have attended court ordered meetings where the result of the meeting is the crown dropping the case, and after another one party dropped out of litigation after close scrutiny of the report produced.

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In returning to the question the question whether expert witness meetings are meeting of minds or bruising battles of ego, I believe they should be meetings of minds, carried out in a professional manner, but in an adversarial system they cannot be divorced from the protagonists’ egos. Whether they are bruising or not depends upon how well prepared the experts were and how tenable their position was under peer scrutiny.

both sides, and concentrate upon the facts at issue. The needs of the victim and the defendant are not the same and one of the disputing legal teams is disadvantaged by the outcome of the meeting, so the outcome of such meetings is not helpful to those individuals, but appropriately used they are helpful to society in general.

In relation to whether they are a necessary evil or a pointless exercise, I feel that in many instances they are necessary but they are not always appropriate. Their use is at the judge’s discretion and the judge and the legal teams are best placed to assess the usefulness for having an expert’s meeting.

Mark was a Fire Officer in the West Midlands for thirty-two years. Now, Mark’s aim is to provide a professional fire investigation service based upon best practice, in keeping with AFI-UK ethos.

Mark McCabe MI Fire E, IAAI-CFI. IAAI-ECT

Mark has over 35 years’ experience in the fire industry, working for the last 15 years as a full time Fire Investigator. He is a Certified Fire Investigator and Evidence Collection Technician with the International Association of Arson Investigators (IAAI) and a Member of the Institution of Fire Engineers (IFE). He is listed on the UK Register of Expert Witnesses for the specialisms associated with Fire Investigation.

As for the suggestion that they are an under employed method of shortening trials, ideally suited to this time of fiscal austerity, it is my experience they might be used more often than they have been but they are not suitable for every occasion. They do have the effect of reducing the duration of expert attendance and hence the overall length of trials. The imposition of experts’ meetings at every trial to reduce trial durations for financial reasons is a concept that I feel would be seized upon as anathema in some quarters and regarded as a panacea in others.

Mark has extensive experience of providing expert evidence in courts in respect of fires and explosions. He has carried out in excess of 750 fire investigations in the UK and abroad: including major commercial losses, domestic properties, motor vehicles, domestic appliance fires and 116 fire death enquiries, covering accidents, in excess of twenty murders and numerous suicides. www.mmfi.co.uk

Expert’s meetings are helpful to the court and to those at the centre of the trial, the defendant and the victims of the crime, when ordered by a judge in order to distil and simplify the expert arguments on

Dr Ian Starke

Dr Duncan Dymond

Consultant Physician in Stroke Medicine and Geriatric Medicine

MD FRCP FACC FESC

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

Consultant Cardiologist

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

Dr Duncan S Dymond has been a consultant cardiologist at St Bartholomew's Hospital, now a part of Barts Health NHS Trust since 1987. He has been undertaking expert witness and medicolegal work for more than 5 years and has completed his Cardiff University Bond Solon expert Witness course.

Dr Starke provides expert reports for clinical negligence and medical injury cases in stroke medicine and geriatric medicine and on fitness to practise.

Dr Dymond currently completes 1-2 medicolegal reports per week, for personal injury and medical negligence, with roughly a 60/40% split claimant/defendant.

He has provided expert examinations and reports for immigration and HM prison services. He is able to assess clients within or outside London.

He has also completed expert witness work for the General Medical Council, the Medical Defence Union and the Crown Prosecution Service as well as accepting private instructions directly for solicitors. He has also provided mediolegal opinions for cases in Singapore.

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

T: 0207 079 4260 E: medicolegal@harleycardiology.co secretary@drduncandymond.com W: www.drduncandymond.com 110 Harley Street, London, W1G 7JG

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How Legal Decisions are Made Using Hair Tests: The Foundations of Interpretation by Lolita Tsanaclis, Cansford Laboratories Unpicking the world of hair testing for drug and alcohol can be a complex business. While the scientific community views the practice through a purely scientific lens, it’s a subject that’s equally important to others, like family lawyers and social workers, in terms of its application, results, and the interpretation of those results.

Introduction Hair drug testing has a variety of applications, providing, as it does, a history of an individual’s exposure to drugs, whether through regular use or as a one-off. These guidelines ensure hair testing continues to be acceptable as a form of evidence in court. What is the scope of the guidelines? The guidelines are designed for those already using hair testing and those considering it for the future. For the former, it provides best practice guidelines that are accepted across the globe – for the latter, it outlines the requirements for such testing.

Founded in 1995, The Society of Hair Testing (SoHT) was created by a group of toxicologists from various countries to promote scientific cooperation in the field of testing hair samples for drugs, to promote research in a variety of subjects, and to develop international proficiency tests.

What are the applications of hair testing? While blood and urine testing can provide evidence of drugs taken recently enough to still be in the user’s system, the makeup of hair tissue means that, depending on its length, it can be used to test for drug presence over a period that spans weeks and months. For this reason, hair testing is a practice used increasingly in family law cases, particularly in care proceedings where there are questions over parental

The Society also produces guidelines for laboratories involved in the drug testing of hair: guidelines which cover everything from collection and storage to preparation, pre-treatment and analysis. Here, we delve into these guidelines – last updated in mid-2017 – and analyse what they mean for family lawyers, social workers and family law cases.

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drug abuse. In all cases, hair test results should not be used in isolation and all relevant factors in a case need to be taken into account before any action is taken. The SoHT guidelines set out four cases in which testing tends to be used, namely:

Sample collection Observed sample collection of urine can be embarrassing as very involved procedures are commonly used to ensure the integrity of the sample. On the other hand hair can be collected unobtrusively and can be stored indefinitely. Head hair grows at a rate of 1cm per month, and a pencil thickness of hair is required, at a length that allows accurate testing for the dates in question. Hair can be collected from multiple sites on the head if the subject worries that bald patches will be left, but can also be collected from other areas such as beards, underarms and the pubic area if needed – although characteristics of hair from these areas are different and must be considered in the interpretation of hair test results.

1. Drug-related deaths Hair testing can provide evidence of chronic drug use prior to death, and also establish whether the cause of death can be attributed to drug usage. Establishing abstinence in the months before death can help to judge tolerance levels to a drug that may be the cause of death, and hair testing can also be used in poisoning cases. 2. Drug-facilitated crime Drug-facilitated crime, where the victim is administered drugs that may cause amnesia or sedation, can be demonstrated proven through hair testing, which can pick up low levels of the drug, even when the crime has been reported weeks or months after the event. It can also be used to detect drugs such as GHB, used in drug-facilitated sexual assault cases. It’s worth noting, hair testing can demonstrate an association of an event with a drug. But it is not able to prove that a substance was used on a particular time or day. So with drug facilitated crime the hair testing evidence is corroborative not proof.

Bleaching, dyeing, and even regular shampooing can affect hair samples. Laboratories must be informed about the condition of each hair sample. Failure can throw results into question. This section of the guidelines goes on to explain the recommendations for collection processes in a variety of circumstances: a failure to meet these recommendations may mean that the sample is compromised and cannot be used in a family law court case. Sample preparation To prepare hair samples for analysis, samples will need to be washed and may also be segmented. Both procedures may affect the accuracy of results.

3. Child custody Infants and children may be exposed to drugs in a number of ways: through drug and alcohol abuse by the mother in pregnancy, exposure via breastfeeding, access to residue on contaminated surfaces, passive smoking from those nearby and even exposure via contact with the sweat of drug users. Testing for a mother’s drug abuse during pregnancy is possible by collecting a sample of hair from the baby (if it has not been cut since birth) and testing: drugs identified in the hair’s distal region can be attributed to drug use during pregnancy, while drugs picked up elsewhere in the hair suggest exposure post-birth.

• Segmentation – By segmenting hair samples, it is possible to understand historical profiles of drug exposure. However, accuracy will depend on the accuracy of sampling and of the lab’s segmentation process. • Washing – Washing or the decontamination of hair samples allows the laboratory to remove elements such as hair care products, body fluids, sweat, sebum and skin cells that may interfere with analysis, as well as external contamination with drugs. There is currently no standardised washing procedure, but laboratories are expected to use procedures that identify how much surface contamination is removed without removing traces of drugs incorporated into the hair.

4. Chronic excessive alcohol consumption Two different markers in hair can be used to identify chronic excessive alcohol consumption. Ethyl Glucuronide (EtG) and fatty acid Ethyl esters (FAEEs). Most laboratories are now able to detect levels of these substances that imply chronic excessive use of alcohol over three months or more. A few laboratories can test a lower level that suggests abstinence or at least a very low level of drinking.

Testing procedures Pre-treatment processes release drugs from within hair. Certain extraction methods can affect specific drug types, so care must be taken here.

However, in their alcohol consensus document the SoHT advise that it is not advisable to use the results of hair testing for alcohol markers in isolation; all relevant factors surrounding a case must be considered when providing expert interpretation and opinion.

Screening is then conducted in one of two ways: either using immunoassays (also used for screening bodily fluids), or chromatographic techniques which screen for a larger number of drugs in a single sample. Tests that are presumed positive are then retested with higher sensitivity levels, as hair drug levels are lower than those found in urine or blood.

However, the levels of these markers can be affected by cosmetic hair treatments (including hairsprays that contain alcohol), so hair tests may form only part of the evidential picture. EXPERT WITNESS JOURNAL

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Result â&#x20AC;&#x2DC;accuracyâ&#x20AC;&#x2122; (in quotations because the word has a variety of meanings) can be damaged each step, and in family law cases, different methods may be used for different case types. There are recommended cutoffs to identify chronic drug use, which vary by drug type. However, in drug-facilitated crime, for example, where it could be that a single claimed occurrence of poisoning is being investigated, lower cut-offs are used to detect a single intake of the drug in question.

Dr. Lolita Tsanaclis has been working in the field of hair testing since 1993 and is a leading authority in the field. She is the Scientific Director of Cansford Labs, Cardiff and a member of the Society of Hair Testing (SOHT); the London Toxicology Group (LTG); and of The International Association of Forensic Toxicologists (TIAFT). She can be contacted at loli@cansfordlabs.co.uk

Quality assurance and quality control are of vital importance in drug hair testing, with laboratories required to meet specific industry standards as laid out in the Guidelines. It is recommended that laboratories involved in this type of work take part in proficiency testing programmes, which use drugpositive hair samples to compare results given by different laboratories for the same sample.

Need an expert fast Call our free searchline on 0161 834 0017

Hair testing has a wide range of applications in family law; from providing evidence in child abuse cases to establishing whether a mother has taken drugs during pregnancy. The method produces reliable and accurate results, providing that everything from sampling to analysis is carried out in the right way.

or use our website www.expertwitness.co.uk Ranked top of google for over 12 years

The Society of Hair Testing Guidelines ensure hair testing results can be used as legal evidence â&#x20AC;&#x201C; but, as with any test type, mistakes are possible along the way. The more family lawyers understand about hair testing and its details, the better. â&#x2013;

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Machines Do Words; Translators and Interpreters Do Language The sky is the limit in Laird Languages. As an almost independent entity within Laird Expert, it has steadily grown into a major facilitator in the interpretation and translation industry needs to be carefully considered. Hence the need for an experienced and qualified person, with a specific technical vocabulary that takes years to acquire.

We have approximately 1,900 interpreters at our fingertips, fluent in over 100 languages. Until recently, cases requiring court interpreters were rare and marginal, but having had over 4000 instructions since June 2015, we are recognising the shift in importance towards accurate legal interpretation and translation.

With this in mind you should consider the best agency to guarantee the right interpreter/ translator is found, with the correct understanding and specialisation.

With demographic reforms on the rise, changes to the make-up of criminal justice proceedings render court interpreters and native language translations key participants in the everyday running of the justice system.

Within the legal sector we understand the need for cost savings, but at what cost in the long term? Is your friend or family member able to fluently speak another Language and cut your cost in half? Whilst this may seem the most accommodating choice at the time, it can be very dangerous. Don’t assume that, given a particular document, translator ‘A’ will translate the document in exactly the same way as translator ‘B’. The only difference between A’s output and B’s output will be the price they are asked to pay for it.

Laird Language only use interpreters and translators with proven competence and established skills, who are governed by a nationally recognised code of conduct established by the NRPSI, ensuring integrity of the profession is maintained. It’s difficult finding great interpreters, which is why you need to find an interpreting agency with a solid reputation and distinguished customer service focus. Laird Languages have a knowledgeable team, whose job is to support and ensure all parties meet the objective effectively and make high-quality decisions.

In reality, the outcome of the translation relies solely on the translator’s familiarity with the subject matter and their level of expertise, and such deep understanding only comes with many years of experience. Laird Languages only use mother tongue translators with a minimum of a 100 hours experience and industry-recognised qualifications, so that the quality of the translation will be beyond question, reenforced by a declaration and statement of truth, provided by us, to support the same.

There are 7,099 living languages spoken in the world today and 39,491 alternate language dialects, of which 3,866 have a developed writing system. This means the probability of representing a client requiring interpretation or translation are likely. A multitude of barriers need to be overcome - a word, a phrase, medical or legal terminology, statement of truths etc, within law are a foreign language to most.

If you would like further information, a price list or some no obligation advice, just give Laird Language a call -we’d be delighted to help!

Instructing a trusted agency to find the right person to interpret or translate court documents (or assist at a court hearing), with fluent knowledge can be a tedious task. Not just any interpreter can interpret legal documents or legal language; every nuance EXPERT WITNESS JOURNAL

Christine Baty Expert Services Manager - Languages and Locus Laird Assessors www.laird-assessors.com/ 31

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www.Interpretations.expert /LairdLanguages @LairdLanguages

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Hidden Contributory Factors in Slip Incidences 1

This article starts with a true story about a tragic incident on a wet floor that resulted in severe head injuries and chronic mobility disabilities. This is a story which mirrors many incidences of the 1000-plus reported slips on wet floors every year. 2

through the set of large double doors on to landing, she turned to the left took a couple of steps and slipped backwards, hitting her head on the hard floor. At this very moment of the incident the cleaner and supervisor were in the bin storage room, hospital porters were in the staffroom on a break, no one witnessed the incident. A large ‘bang’ from the impact soon aroused the attention of the cleaner, his supervisor, and the porters.

Setting the Scene The story starts in a large city hospital, and as is common with hospitals, it never stops day and night. So, in the very early hours, around 23:45, a hospital cleaner with long experience of working this shift, started to clean a 3rd floor area that serve as a landing for 4 lifts and a thoroughfare for two main corridors and access to a large ward. For practical and safety reasons this is the only time that full floor cleaning can reasonably take place. Even at this time in the early morning, the area must to be kept clear and ready at all times, but at this particular time the lights were dimmed to save energy and no one was in the immediate area. The cleaner, using the standard set of floor mopping equipment and cleaning product allocated for that area, adopted the standard practice of dividing the floor area into smaller and more manageable ‘zones’, and working from zone to zone. As per normal practice he positioned three slip warning signs. This particular piece of floor cleaning equipment is designed to use as little cleaning solution as possible so as to ensure the floor dries as quickly as possible. Instead of wet mopping the floor, the equipment only dampens the mop.

Injuries Sustained from the Fall As a result of the fall, the nurse suffered a post traumatic brain injury and a dislocated right shoulder. She had two epileptic seizures almost immediately and was admitted into ICU and put on a ventilator. She remained unconscious for several days and remained in hospital for a further 10 days. After leaving hospital, she would suffer blackouts lasting several hours, this lessened with medication over time. She suffered from post-traumatic amnesia during her stay in hospital and her memory, concentration and mobility remained impaired for some time afterwards. Her mobility problems contributed to a number of falls post incident that resulted in a broken tibia, damaged knee (due to altered gait) and accelerated preexisting osteoarthritis.

At around 01:00, just as the cleaner was half way (finishing zone 3) through cleaning the floor area, a nurse was attending patients as part of her normal daily routine in the ward immediately adjacent to the floor landing area. A set of large double doors separated these two people.

What Factors Contributed to the Fall? At first glance this story reads like a typical fall on a wet floor, but what really caused the nurse to fall backwards resulting in such severe injuries? In the majority of falls and slips, the primary causative factor is found to be wet or dry contamination on the floor. Without contamination on the floor, the probability of a fall is highly unlikely. However, this idea of a slip solely due to a contaminated floor is far too simple. In our experience, it is more often than not that multiple factors are in play which combine to increase the probability and severity of a fall. The probability of a slip on a safety floor, for example, with a low to medium slip risk when wet with water, will be affected by any modification (including clean-

15 minutes later (01:15), the nurse was finishing off her ward duties and started to make her way out of the ward and out on to the landing, with the intention of attending patients in other wards. By this time the cleaner had just finished the floor and was now helping his supervisor to dispose of black bag waste into the bin storage room. At this point in the story everything is normal and routine, nothing different from the daily routine has changed. However, as the nurse left the ward to carry on with her duties EXPERT WITNESS JOURNAL

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more solution applied to the floor the longer it takes to evaporate. Should the cleaner have made sure that the floor was dry before finishing? The obvious answer to this question is yes, but now consider the additional factors that come into play.

ing method employed, wear and maintenance) or addition of any coating applied to the floor. This example can be extended to any floor: It is very common for companies to ‘seal’ or apply a coating on to a surface for aesthetic reasons, or adopt a cleaning method that runs contrary to the manufacturers’ recommendations. All these modifications change the physical properties of the floor surface and therefore the slip probability.

Additional Contributory Factors This leads to the next part of the story: the environmental conditions at the time were dictated by the hospital in the effort to save energy, and the aesthetic requirements of the floor. Every night the lights are dimmed in the main corridors and landing areas to save energy, including the lift landing area where the fall occurred was included. There was also a requirement to maintain ‘shiny’ floors purely for aesthetic requirements, but also to reduce the cleaning demand on high and very high foot traffic areas; a Polyurethane coating was selected that met both these requirements and was applied.

The other factors which contribute to or exacerbate the risk of a fall are: Operations in the immediate area that either generate or fail to remove contamination, the appropriateness (type and design) of footwear, the state of mind of the individual, their range of mobility, the environmental conditions, and the physical properties of the floor surface. Let’s examine this story to see how multiple factors came into play that resulted in severe injuries and how the existing risk assessment failed to consider the effect of multiple factors.

The floor and the coating were completely smooth and the floor beneath the coating could reasonably be described as medium dark in colour. This degree of detail of the environmental conditions and surface detail are very important to remember as a third factor is introduced: the cleaning solution used. The cleaning solution (water and cleaning product mixture at the recommended dilution) selected and used was completely clear, non-foaming and odourless when used. As shown in the technique description of how cleaning products work, the cleaning solution ‘spreads out’ over the surface as a film rather than forming ‘beads’, this makes it much more difficult to see wet patches on the floor.

Before the incident took place it’s important to look at the risk assessment for that specific area. The assessment determined that, because the area must be kept clear and ready to use at all times, a floor cleaning system must be chosen that leaves the floor dry within the shortest reasonable time, and that the time chosen to clean the floor must be during the quietest period. The cleaning system chosen was one of the factors in this story that contributed to the raised probability of a fall in occurring. The floor cleaning equipment was designed to lightly dampen one side of a flat double-sided microfibre-based mop. When used to clean a small section of floor, the mop head would be flipped and the dry side used to remove excess cleaning solution. Once that small section had been cleaned and the excess removed (the area would still be slightly damp, just not wet), the mop head would be replaced with a clean, dry one and the process starts again. Under standard environmental conditions (approximately 22 degrees centigrade and low humidity) the cleaning system returned a dry floor section in about one minute.

The ability of surfactants in a cleaning solution to reduce surface tension (‘spread out’) has another consequence when you consider the point at which a rubber heel makes contact with a floor. By reducing the surface tension, the cleaning solution can penetrate (called ‘wetting’) tiny crevices and gaps and this includes the gap between a shoe and floor surface, even when full downward weight is applied. This film reduces the ability of the shoe to generate friction between the shoe and floor, thereby increasing the risk of a fall.

Main Contributory Factor The first failure in this story occurred when we consider that multiple witnesses attested to the fact the floor was still wet 15 minutes after cleaning ‘zone 4’ (from 01:00 to 01:15). The equipment – if used correctly – would have returned a dry floor by this time. However, it was discovered that the system used to regulate the amount of solution to dampen the mop head (to prevent over-wetting) was prone to easily accidental or intentional over-wetting and there was no reliable way for the cleaner to tell until the cleaning solution was on the floor. This simple hidden failure of the system contributed to the long dry time – the EXPERT WITNESS JOURNAL

If we now reintroduce the other factors, the dimmed ambient lighting, shiny floor and dark coloured flooring, we can see that in the reduced light it would be difficult to see wet patches on a dark floor surface that already looks wet due to the highly reflective coating. This does not take away from the fact that the floor was wet for longer than it should have, but what if the cleaner had missed a patch of floor with the dry side of the mop head? All these factors were not considered in the original risk assessment for cleaning operations in that area, but they have such a huge bearing in the probability of a fall. 34

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The wet condition was the floor presented immediately after cleaning using excess solution (over-wetting of the mop), within the capability of what the cleaning equipment can apply to the floor. Testing of the wet condition started immediately after cleaning and repeated every 10 secs until the slip rating fell into the low slip risk band.

Technical – How Cleaning Products work If we try to clean a floor with just water, you will notice that the water ‘beads’ and ‘pushes’ away from the greasy soiling, we need something to penetrate and lift the oils and greases from the surface, and water alone simply cannot achieve this without a little help. Contained within the vast majority of cleaning products are a group of chemicals called Surfactants (contraction of Surface Active Agents), and it is these chemicals that are designed to provide that help water needs. Surfactants provide two key roles: They reduce the surface tension of water and penetrate the oils and greases. If you ever notice how a water drop behaves on a greasy surface, you will notice that it forms ‘beads’ and appears to repeal away from the soiling. This beading effect is the result of the imbalance of forces between the strong forces the water molecules exerted between themselves and that of much weaker forces between the water and air or oil/grease molecules at the surface. This imbalance is called surface tension. Surfactants are designed to significantly reduce the surface tension by disrupting the imbalance of forces, which has the effect of ‘spreading’ out the solution over the greasy surface and allowing the solution to penetrate the thousands of microscopic cervices and gaps. The second key role a surfactant has is linked to the unique structure the surfactant molecule has, with half the molecule ‘attracted’ to the grease/oil and the other half ‘attracted’ to water (remember that oil and water do not mix), the molecule has the ability to penetrate the grease/oil dragging water with it. Within a short period of time, the surfactant molecules completely surround the now smaller oil droplets in a cage-like structure (called micelles) and this has the effect of stabilising the mixture of oil and water, preventing the grease/oil to reform on to the surface.

Slip Resistance Testing Equipment Measuring slip resistance of a floor in-situ can be conducted with one of two different testing kits: The Pendulum and the SlipAlert3 ramp kit. Both kits are fully recognized and both shown to correlate very well with laboratory tests. For on-site testing either testing kit can be used, for the purposes of this story, the SlipAlert system was used. The SlipAlert system uses a ramp and a car with a rubber ‘slider pad’ at the base of the car (figure 2), as the car accelerates down the ramp the slider pad strikes the floor at the base of the ramp. The slider pad and the angle at which it strikes the floor is designed to replicate the action a shoe heel strikes the floor. The less resistance the floor the further the car will travel and the higher the reading recorded. It is normal practice for all readings to be taken as averages of 3 runs, in opposing directions to allow for slight gradient variations. After years of slip resistance testing a wide range of surfaces a range of values that define low, moderate and high slip risk were created and called Pendulum Test Values (PTV). The graph in figure 1 shows the PTV against the SlipAlert counter readings.

Test Results and Observations To determine the probability of a fall from the effect of the cleaning equipment (and method employed), cleaning solution and floor surface (including coating), a quantitative slip resistance test was conducted on the area of floor where the fall occurred. Ambient light levels could not be tested.

Above, Figure 1 - The SlipAlert Test Graph

The slip resistance test equipment was used under the following conditions: Dry, damp and wet. The dry condition was the floor as presented at approximately 13:00 with no prior cleaning conducted, and acted as a frame of reference with which the damp and wet test results can be compared to. The damp condition was the floor presented immediately after cleaning according to the equipment and product manufacturers’ recommendations. Testing of the damp condition was conducted immediately after cleaning and every 10 secs until the slip rating matched the dry condition. EXPERT WITNESS JOURNAL

Above, Figure 2 - SlipAlert Test Kit 35

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This story highlights the often-missed fact that many different factors come together to turn a manageable situation into a dangerous situation. It also highlights the fact that a risk assessment that does not consider multiple factors, consequences of failures (intentional or accidental), and changes made to any one part to the system (e.g. coatings, environmental changes or methodology) must be considered a serious over-sight and therefore inadequate. An inadequate risk assessment is a recipe for future incidences.

The following results were obtained:

References 1 Names, dates, parties, and location have been removed or changed to protect against identification; all other details are true and correct as pertaining to the case

We can see that when the equipment was used according to manufacturer’s instructions the floor dried very quickly to a dry state in approximately 50 seconds. However, should the equipment be misused (accidently or intentionally), the floor presented a very high slip risk for just over 2 minutes, and over 3 minutes until dry. In our experience, the initial slip resistant readings were the highest recorded in a number of years, and came as a surprise to all parties in this story.

2 http://www.hse.gov.uk/food/slips.htm - For major and 3day absence injuries reported to the HSE “...1,300 injuries per year, of which approximately 80% are slips…”. Date: 30/08/2017 3, SlipAlert slip resistance testing kit obtained from http://www.slipalert.com

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In this story, the floor was wet for 15 minutes which indicates that the floor was grossly over-wet, which would have ensured the floor stayed in a dangerous state for a long period of time. During testing it was observed that: • Even when using the equipment as per recommendations, the floor dried unevenly, leaving wet patches • During the damp cleaning test, the cleaner using the dry side of the mop head to remove the excess solution accidently missed wet patches. • From the cleaner point-of view the wet patches were virtually indistinguishable from the rest of the floor, due to the completely clear and non-foaming solution, dark floor and shiny floor coating.

Futureclean Assured Systems are a complete cleaning system is a combination of many different parts that must work together seamlessly. Some of these parts, like training, are often not considered to be important, but without all the parts working together the cleaning standards deteriorate. Futureclean Assured Systems can advise and assist on all aspects of cleaning and facilities management, below is a list of services we offer:

Conclusion Why were the wet floor readings so dangerously high and persistently high for so long? The original flooring supplied would have typically come with a set of laboratory slip resistance test results (for dry and wet), but the moment a coating or any surface modification is applied, those slip resistance values no longer apply, as the coefficient of friction has changed – this was not considered in the risk assessment. In this case, the coating was designed to prevent soiling (oils and greases) and other dirt from adhering to the floor, to make cleaning easier and less of a demand. This had the unfortunate consequence of allowing the combination of soiling and water, aided by the cleaning solution (reducing the surface tension), to slide more easily. EXPERT WITNESS JOURNAL

Advisory Services including: Auditing, Gap Analysis, Risk and Safety Management, Specifications & Manuals, Design & Development and Specialist & Unique Cleaning Systems Support Services including: Facilities Management, Marine & Environmental Consultancy, Food hygiene and Safety, Infection Control, Hospitality, Industrial & Construction Cleaning and Technical & Process Cleaning Training Services including: Online, On-site, Practical , Auditing existing training, Custom Course Development and Training the Trainer. Research & Development including: Cleaning Practices, Cleaning Products, Protocols & Standardised Testing, Cleaning Systems and Hazards & Risks in Cleaning. Our in-house cleaning experts have proven track records, with decades of practical and managerial experience at the highest level, in delivering many various answers to cleaning problems in many different industries. No matter how complex or how intractable the problems are, Futureclean Assured Systems will assure you complete confidence in our ability to support you every step of the way, and beyond with our commitment to on-going support. Web: www.futurecleansystems.com Tel: 0330 2232 780 Email: info@futurecleansystems.com

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Holiday Sickness Scams by Richard Paige, Head of the Park Square Barristers Travel Fraud In the last couple of years there has been an explosion in the number of holiday sickness claims in the UK. It has reached epidemic proportions so rapidly that all the national newspapers have run stories about hotel owners, mostly in Mediterranean resorts, threatening to ban British holidaymakers. The stories have probably been exaggerated to sell papers and there is likely to be a degree of sabrerattling from the hotel owners, but there is no doubt that it has become a significant problem for the British holiday industry, so much so that ABTA launched its “Stop Sickness Scams” campaign in June 2017.

Wood v TUI Mr and Mrs Wood travelled to the Dominican Republic in 2011 for an all-inclusive holiday during which both fell ill with gastroenteritis. The trial judge found as a fact that the gastroenteritis was caused by the consumption of contaminated food or drink provided by the hotel at which they were staying.

The reasons for this upsurge in such claims is obvious – recent reforms to the recoverability of costs in whiplash claims have made those claims less lucrative for claims management companies and certain firms of solicitors; and holiday sickness claims are not subject to the regime of fixed recoverable costs that road traffic claims are; although that is likely to change shortly given the Government’s announcement on 9th July 2017. Sadly, it is also a reflection of the culture in which we currently live, that many people are now prepared to make spurious compensation claims whenever a suitable opportunity presents itself.

The case was alternatively pleaded on the basis of a breach of the implied condition found in s. 4(2) of the Supply of Goods and Services Act 1982, that the food would be of “satisfactory quality”. It was more or less accepted by all concerned that contaminated food could not be described as being of “satisfactory quality”.

The claims were primarily advanced under the Package Travel, Package Holidays and Package Tours Regulations 1992, but failed on that basis as the judge found that the Claimants had not established fault on the part of the hotel, as required by the Regulations.

The case was argued in the Court of Appeal on the question of whether the supply of food in a buffet or restaurant amounted to a “supply of goods” (to which s. 4(2) applied) or a “supply of services” (to which ss. 12 and 13 applied). The distinction is an important one because the supply of services must be carried out with reasonable care and skill (s. 13) whereas no such standard is applied to the supply of goods – either they are of satisfactory quality or they are not.

In an effort to help the travel industry tackle this problem, Park Square Barristers will shortly be running a training day on “holiday sickness scams”, drawing on over a decade’s worth of experience as a leader in the field of defending civil insurance fraud. To whet the appetite, I will briefly review the judgment of the Court of Appeal in Wood v TUI Travel plc t/a First Choice [2017] EWCA Civ 11, the leading authority on holiday sickness claims, from earlier in the year.

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Ultimately the Court of Appeal resolved the issue in favour of the Claimants, that the supply of food amounted to a supply of goods to which s. 4(2) applied. This, in effect, created a strict liability in cases of food poisoning from contaminated food – it will be no defence to argue that all reasonable care was taken in the preparation of the food. This will have wide ranging implications beyond the travel industry. 37

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• others have been also been affected – it is difficult to foresee how a Claimant could legitimately gather the necessary evidence, in the absence of mass complaints in resort; • other causes have been excluded – for example a vomiting virus. Again, this will present a Claimant with significant evidential difficulties.

Although this was, undoubtedly, a blow to the travel industry and those defending such claims, the last three paragraphs of Burnett LJ’s judgment more than compensate when he said: • In a claim for damages of this sort, the claimant must prove that food or drink provided was the cause of their troubles and that the food was not “satisfactory”.

Conclusion When such cases are presented in Court it is important to ensure that the judge knows which party bears the legal and evidential burden – it is for the Claimant to prove that their sickness was caused by contaminated food; it is for the Claimant to prove that others were similarly afflicted; it is for the Claimant to prove that there was no other possible cause for the illness. In the absence of such proof the claim should fail, as the judge is not entitled to draw any inferences as to the cause of the sickness – the Claimant must prove it.

• It is well-known that some people react adversely to new food or different water and develop upset stomachs. Neither would be unsatisfactory for the purposes of the 1982 Act. That is an accepted hazard of travel. • Proving that an episode of this sort was caused by food which was unfit is far from easy. • It would not be enough to invite a court to draw an inference from the fact that someone was sick. • Contamination must be proved; and it might be difficult to prove that food (or drink) was not of satisfactory quality in this sense in the absence of evidence of others who had consumed the food being similarly afflicted.

Profile Richard Paige, having developed a successful practice in personal injury and clinical negligence, now specialises in civil insurance fraud. He was a founding member of the civil fraud team at Sovereign Chambers before the merger which formed Park Square Barristers. Richard is instructed by most of the country’s leading firms specialising in civil insurance fraud and many of the UK’s insurance companies.

• Additionally, other potential causes of the illness would have to be considered such as a vomiting virus. Of particular importance to the litigator is the clear statement that a Court cannot infer, merely from the presence of sickness, that it arose from contaminated food – it is for the Claimant to prove that it arose as a result of contaminated food.

Park Square Barristers - 0113 245 9763 www.parksquarebarristers.co.uk twitter.com/psqbar www.linkedin.com/company/park-square-barristers

Some might think that evidence of the hotel’s levels of hygiene would be irrelevant because the Court held that it would be liable if the food was contaminated irrespective of the care that was taken in its preparation. Whilst, this would be correct when applying the legal test, it could not be further from the truth when considering the evidential standard. Burnett LJ went on to say in his judgment that “The application of high standards in a given establishment, when capable of being demonstrated by evidence, would inevitably lead to some caution before attributing illness to contaminated food in the absence of clear evidence to the contrary.”

Expert witne ess food industry specialists Leatherhead Food Research provides expertise and support to the global food and beverage sector. Our signiﬁcant exp perience in food science, safety practic ces, manufacturing processes and food law and regulation ena e ble us to provide invaluable advice to clientts involved in a dispute. We have helped in media ation situations and have provided expert witnesses at legal hearings.

Further support can also be gained from the judgment of Sir Brian Leveson when he said: “I agree that it will always be difficult (indeed, very difficult) to prove that an illness is a consequence of food or drink which was not of a satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded.”

Interested in discussing a potential case?

In the absence of a stool sample test demonstrating bacterial infection, the judgments indicate that it will be very difficult for Claimants to prove their claims unless:

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Get in touch: T: +44 1372 376761 help@leatherheadfood.com www.leatherheadfood.com

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Resolving Party Wall Disputes â&#x20AC;&#x153;An Englishman's home is his castle,â&#x20AC;? This is a very old saying, which initially proclaimed the right for someone to prevent entry to their home. Over time it has progressively been used to imply that people have an exclusive right to act entirely as they please within their own home. The truth is that they do not. This becomes crystal clear to any home owner who decides to undertake significant construction work on, or in proximity to, the boundary between his/her property and that of his/her neighbour. Disputes about works undertaken on party walls appear to be on the increase. Key to preventing conflict, and resolving problems early and economically, is clear communications between neighbours. It invariably helps to keep a neighbour informed and as happy as possible before and during works on a party wall. This can be an immense challenge, particularly in the light of the fact that a neighbour will usually experience an element of negativity and discomfort because of building works, but is unlikely to enjoy any of the advantages that the project is designed to provide for the home owner who has initiated the works.

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Ensuring a neighbour is suitably informed about construction works on their boundary, or close to his/her property, can be a challenge, but it is immensely important. It is also a legal obligation. The Party Wall Act 1996 (PWA) requires a home owner to give a neighbour notice of certain types of work before starting. Minor works, which are unlikely to impact significantly on a neighbour, such as plastering a wall or putting up shelves, do not require a home owner to notify the neighbour. PWA permits property owners to carry out certain specific works, including work which goes to the full depth of a party wall, while also protecting the inter39

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ests of adjoining residents, and anyone else who might be disturbed by the work. PWA is not intended as a device to enable neighbours to hinder proposed works simply because they do not want them to happen. However, if a home owner fails to notify a neighbour properly, then the construction works can easily be delayed, and the project could end up costing a lot more than originally budgeted for.

Award. It is legally binding, much the same as an order made in a court. A PWA Award may be concerned specifically with the extent of the works, restrictions on timing of the works, and any additional works that might be required. With cases that result in loss or damage suffered by the adjoining owner, the Award will normally include the level of compensation payable.

The PWA is not concerned only with party walls, i.e. walls and floors (e.g. in flats) which are shared by adjoining buildings. It also regulates the relationship between neighbouring property owners in respect of certain types of construction work on, or near, the boundary between their connected properties.

There is no facility in the PWA to challenge the substance of an Award through the courts. Nonetheless the Act provides that either party can appeal to the County Court, within 14 days, to have an Award overturned on grounds that the surveyor(s) failed to observe the dispute resolution procedure prescribed in the PWA.

A common type of dispute occurs when proposed works to be carried out on a party wall are objected to by a neighbour. There is also the potential for a dispute to occur when building works on one side of a boundary cause damage to a neighbourâ&#x20AC;&#x2122;s property. In either case, a failure to comply with the PWA could result in the neighbour obtaining an injunction from a court to prevent the works from continuing and/or, a judgment for compensation for any loss or damage resulting from the works, plus legal costs.

The PWA has been in force for around 20 years and, if anything, its provisions are becoming more relevant than ever before. In London, basement developments are increasingly popular where the capacity to extend properties out and up is extremely limited. However, the nature of basement expansion projects, where works can potentially effect foundations of nearby properties, can give rise to greater potential for damage to neighbour properties. This can increase the potential for construction works to be delayed, and create an environment for neighbours to fall out.

The PWA prescribes the appointment of a surveyor by each neighbour, or a single surveyor appointed jointly, to operate for both sides. For example, if a PWA compliant notice is served on the neighbour, and damage occurs, any disputes over the damage will be dealt with by the appointed surveyor(s) whose task is to help both sides to resolve issues quickly and effectively, rather than through slow and costly litigation. The appointed surveyor(s) is required to act impartially, work with the neighbours to achieve a solution and draw up a document that settles the dispute between them. The document is known as an

The PWA provides a comprehensive and effective mechanism for avoiding and resolving party wall disputes. A growth in the numbers of home owners deciding to extend and improve their properties rather than moving means there is likely to be more need for it in the future. Martin Burns 29 September 2017

Forensic Structural Engineer - Chartered Building Surveyor Expertise in;

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

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

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

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

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Prosthetic Provision and Prosthetic Expert Witness Reports By Abdo Haidar Consultant Prosthetist at The London Prosthetic Centre The measure of success of an amputee is not about the state of the art prosthetics, but how well the amputee can continue to live their lives.

With early intervention, cost justifications should be verified for: • Objectives evidence/trial • 6 year intervention plan with regular review by the team • Interim funding for trials • Well documented prosthetic intervention with video evidence • Initial needs assessment by the team i.e. Prosthetist, Physiotherapist, Occupational Therapist, Pain Specialist and Psychologist

What an amputee gets out of a prosthetic device depends on their goals, motivation, determination and skills of the prosthetist. Sometimes it’s about freedom of movement and independence and sometimes it’s about going further. Having practised as a clinical prosthetist for over 20 years, I have acquired the experience and knowledge to prepare prosthetic expert witness reports for both claimants and defendants. The report is extremely important ensuring that amputees receive the support necessarily required for life. These considerations listed in my article offer guidelines when preparing an expert witness report. The main aim is provision of appropriate intervention and prosthetic prescription ensuring the claimant can reach as much of their independence following limb loss.

• Set short and long term goals 2.Rehabilitation The ultimate goal of rehabilitation after limb loss is to ambulate successfully with the use of a prosthesis and to gain a high level of independence. Prosthetic rehabilitation is a complex task that ideally requires input from a multidisciplinary rehabilitation team. • Amputees should at first instance attend a geographically convenient prosthetic centre to their home.

1. Early intervention Early intervention is vital to ensure a speedy recovery. The earlier the amputee begins their rehabilitation and working with a skilled prosthetist, the better their outcome will be as a prosthetic user.

• Prosthetic rehabilitation requires the user to attend on multiple visits the prosthetic centre to achieve the desired outcome. • Amputation is for life. Residual limb volume is constantly changing depending on weight loss or gain, muscle atrophy and swelling due to vascular problems. The socket is bound to be replaced frequently especially so in the early years following an amputation. • It is vital that the user establish a long term relationship with their prosthetist to ensure that their prosthetic care is dealt with in a timely manner to consistently try to improve their mobility and independence. • Pre-amputation rehabilitation and post-amputation prosthetic fitting together with physiotherapy and gait training, indoors and outdoors are necessary to ensure that the user becomes confident using their prosthesis.

Amputation of a limb affects almost all aspects of an individual’s life. Amputees in addition to their physical disability suffer from countless psychological and psychosocial problems. Amputation causes threefold loss in terms of function, sensation, and body image. The majority of amputees are plagued by many doubts and fears. Most amputees do have the need for reassurance and constructive advice, but because amputation is a visible disability, there is usually hesitancy on the part of others to consider amputees as normal healthy individuals. Rehabilitation is a holistic process comprising of therapy, use of prosthesis, reemployment, and reintegration into the social roles.

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3.Mobility - Consideration of prosthetic type Depending on the claimant’s activity and mobility level prior to their limb loss, consideration is made to the type or design of prescribed prostheses. The prosthetic device should match the person’s needs and potential. Prescribing an expensive device is not necessarily an indication to improving the user’s mobility.

Life span – A typical prosthesis life span is around 5 to 6 years and considerations of new prosthetics with costed inflation will always need to be included in the expert witness report. The lifespan also depends on the amputee’s activity and mobility. The prosthetic components such as the knee, foot, ankle or hand are mechanical items that require servicing, maintaining and eventually replacing.

The history of the claimant should paint a picture of their functional and mental abilities and limitations on a typical day. The physical examination should focus on the body systems that are responsible for their ambulatory or limb difficulties or impact their functional ability. The claimant should be provided with a prescription for prosthetic components that are appropriate for their activity and mobility levels. Many amputees are able to walk without the need of any aids; others require aids such as a stick or crutches.

This might start out at a sedentary lifestyle and increase as they grow more confident as a prosthetic user. Spares – The unfortunate reality is that a single prosthesis cannot fulfil all the mobility requirements needed for daily functions like walking, showering or sports activity such as cycling or running. Most amputees will require different prosthesis for different needs. Maintenance – Maintenance is important to ensure that the mechanical components such as the hand or knee are functioning optimally at all times overriding any catastrophic failure or mechanical problems.

The prosthetic team will set specific goals for the user and as the user progresses and becomes more active, their prosthesis may need upgrading or updating.

Above, Michael Lewis – Active amputee fitted with a bespoke socket combined with the BioDapt Versa foot specifically built to offer customisable performance for sporting application.

6. Psychological body image - Cosmesis In addition to the physical change, the amputation of a limb can generate unpleasant psychological feelings during the post-amputation phase. Amputees can suffer symptoms such as stress and depression and a general difficulty in accepting the new bodily condition. A functional prosthesis can offer improved mobility and function but at times amputees still struggle with the appearance of their prosthesis. The appearance of the prosthesis affects the acceptance of the device and improving the aesthetic quality of the prosthesis can consequently help to improve the self–body image and psychological wellbeing of the wearer. Silicone aesthetic handmade covers resembling the skin texture, colour and appearance of the sound leg are fitted in my clinic to improve the final prosthetic look and achieve a realistic appearance. Other amputees opt to have 3D printed covers that can be designed in many shapes and colours wishing to show off their prosthesis.

4. Advanced technology vs costs Advancements in prosthetic technology has enabled many amputees to live as normal a life as possible offering them more independence than would have been possible 20 years ago. But technology comes at a price. To make it clear, technology in prosthetics is not always a clear indication for improved mobility, activity or quality of life. Each user has different needs and therefore many considerations should always be made before prescribing these technologies Weight, shape, cosmetic look, size, noise, water proofing, donning, doffing, maintenance, replacement, home environment, vocation, hobbies, sporting activities, ability to attend the centre as necessary and spares, are all factors that should be carefully considered before prescribing modern technologies. EXPERT WITNESS JOURNAL

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Above, Maintenance and adaption on the move

Above, Client fitted with Freedom Innovations foot which provides dynamic control and stability on irregular surfaces when in motion His commitment to providing the highest standard of care, emphasising the individuality of each person and their requirements is paramount to his success in amputee rehabilitation.

In conlusion Some facts to consider • You cannot put a price on a prosthesis for giving someone a chance to return to the life they would like to live. • Prosthetic technology will continue to advance to amazing heights and the more advanced the prosthetic component the more expensive it is going to be

Abdo understands the complexities of amputations and with efficient, accurate and responsive intervention, his clients get to enjoy their everyday activities with complete confidence.

• Claims have escalated in the last 20 years in medical negligence and personal injury and will continue to rise in the future

Attended a number of Bond Solon expert witness courses, awarded an Expert witness certificate from Cardiff University, member of the Expert Witness Institute, APIL and UK Register of Expert Witnesses. Abdo prepares many expert witness prosthetic reports following amputation.

• Many people who have suffered amputation have still gone onto achieving greater things in life. • Prosthetic devices are not a luxury, they are a necessity.

Previous roles included Prosthetic Lead at Queen Mary’s Hospital, Roehampton where he was responsible for the prosthetic rehabilitation of over 1,500 lower limb amputees where he worked for 11 continuous years. Abdo is a nominated prosthetic clinical tutor for the University of Salford, UK for the last 20 years and LaTrobe University, Australia. Abdo have published peer review articles and given presentations in his speciality. Abdo is also an invited lecturer at the University of Surrey.

Abdo Haidar HCPC Registered Prosthetist specialising in upper and lower limb prosthetics with over 20 years of NHS and private experience. Founded the London Prosthetic Centre in 2008, presently lead Consultant Prosthetist and clinical director, clinically managing the prosthetic care of over 1000 amputee clients attending our centre from the UK and from all over the world. Abdo specializes in all aspects of lower and upper limb prosthetics with interest in silicone solutions to include digits loss and partial feet amputations. Abdo is currently the lead prosthetic clinician on SocketMaster Horizon 2020 research project developing a medical tool to optimize lower limb prosthetic fittings. EXPERT WITNESS JOURNAL

Abdo Haidar Email: ahaidar@thelondonprosthetics.com Tel: 0775 268 6439 Website: www.thelondonprosthetics.com 44

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Leading experts in cutting edge upper and lower limb prosthetics and silicone cosmesis. Call us today on

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Never miss a copy of the Expert Witness Journal by purchasing a subscription, Call 0161 834 0017 or email:admin@expertwitness.co.uk

Mr Simon Fulford MBBS, FRCS (Eng), FRCS (Urol)

Consultant Urologist I have been Consultant Urological Surgeon at James Cook University Hospital, Middlesbrough since 2001. I am also Consultant Urologist to the regional spinal injuries unit based at James Cook University Hospital which provides acute and long term care to patients with spinal cord injury from the whole of the North of England. In addition I have a private and medico legal practice based at Woodlands Hospital, Darlington.

Graham Rogers and Associates Limited Consultant Psychologists

Within my clinical practice I specialise in neuro-urology (including spinal cord injury), urodynamics and reconstructive surgery for incontinence and bladder dysfunction. I regularly teach on national courses about these topics. I also regularly perform radical cystectomy for bladder cancer and pelvic exenteration for advanced gynaecological and colorectal cancer. I also maintain a general urology practice.

Specialising in children & adults with learning disabilities.

I have been preparing expert witness reports since shortly after appointment and have attended training courses in medico legal report writing. I have appeared in court as an expert witness. I currently receive four to six instructions per month including medical negligence and criminal cases. I have worked for both claimant and defendant and have acted as a single joint expert.

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

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

Experience at The Central Criminal Court, and The Principal Registry of the Family Division.

BMI Woodlands Hospital, Morton Park, Darlington DL1 4PL T: 01325 341 700 M: 07855 312 901 E: simonfulford@nhs.net

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Consultant Psychologist

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Conference Showcases Impact of Latest Assistive Technology on Rehabilitation for the Seriously Injured Earlier this year, more than 200 health and legal professionals gathered in Nottingham to learn about cutting edge research in the rehabilitation sector, at a conference that highlighted advancements in assistive technology and its impact on the lives of people with an acquired physical disability. The ‘Back in the Game’ conference, hosted by the UK’s largest provider of expert witness, assessment and case management services Bush & Company, was held at the Nottingham Belfry Hotel on 6 July, showcasing speakers from the world of sport, prosthetics and law. Helen Jackson, Managing Director at Bush & Company, said: “This was a unique opportunity to learn about advancements in prosthesis technology and how this is supporting therapy and rehabilitation following a serious injury. EXPERT WITNESS JOURNAL

“Cross sector knowledge sharing enables us to better understand the widening options available for our clients and help them to obtain equipment that suits their individual needs, so that they may regain quality of life.” The delegates heard from Scott Richardson, Business Development Manager at Pace Rehabilitation. Scott, a leg amputee himself, demonstrated some of the latest developments in prosthetic technology, including microprocessor controlled components and AUTUMN 2017

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Above, Bush Co - Scott Richardson from PACE Prosthetics - Previous page, Bush Co - Taher Dhuliawala from Physiofunction

osseointegration, and the impact they have on amputees and their day to day living.

type of equipment starts to replace other wheelchairs as a primary means of mobility for people with physical impairments.”

Scott, said: “It may sound a strange thing to say, but it’s actually a good time to be an amputee. Prosthetic technology is continually advancing, with more than 500 prosthetic feet and 250 prosthetic knee options currently on the market.

The conference concluded with a medico-legal debate on the impact of technological advances on a claim. Solicitor Katherine Lennon from Brethertons, David Johnson partner at Weightmans law firm and Tracey Pike, claims manager at Zurich Insurance Company agreed that synergy between the insurer and solicitor is paramount to the resolution of a claim, considering the unknown outcomes of technological advancements.

“We are seeing a move towards combined microprocessor knee and ankle systems which offer potential for increased function and stability for the client. However, with systems costing between £50,000 and £117,000, it would be fair to say that when the bar gets raised technologically it does so financially too.

Bush & Company provides specialist medico-legal and rehabilitation expertise to insurance companies and solicitors, working with people who have sustained serious or catastrophic injuries, Bush & Company acts on referral from the injured person or by instruction from a Claimant representative or a Defendant.

“We already know that personal injury claims settled last year are underfunded when it comes to state of the art prosthetic provision, and so I appreciate the pressure case managers are under to secure appropriate equipment that will give their client a better quality of life.”

For more information about Bush & Company, visit www.bushco.co.uk

The conference also welcomed speaker Taher Dhuliawala, a Senior Neurological Physiotherapist at Physio Function, who has a special interest in spinal cord injury patients and exoskeletons. He added: “Exoskeletons are currently very expensive devices but can help avoid many of the complications of wheelchair life and can help with relief for neuropathic pain.

About Bush & Company Bush & Company is the largest and fastest growing provider of expert witness assessment and case management services in the UK. For over 30 years it has provided a service to injured people, to solicitors and to insurance companies. Specialising in catastrophic and serious injury cases, Bush & Company acts on referral from the injured person or by instruction from the Claimant or Defendant representative.

“However, with advancements in manufacturing process such as 3D printing and actuator (motor) technology, we will hopefully see a time when this EXPERT WITNESS JOURNAL

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Back Up Charity Boost For Spinal Injured Patients Manchester law firm JMW Solicitors has become a premium corporate partner to a national charity which supports people who have sustained a spinal cord injury.

Back Up is a national charity which inspires people affected by spinal cord injury to get the most out of life. For over 30 years, Back Up has helped people and their families to rebuild their independence after a devastating spinal cord injury.

JMW announced the agreement with Back Up on World Spinal Cord Injuries Day (Sept 5) and has agreed to sponsor the charity to raise awareness about its services among patients and their families at nine specialist spinal cord injury centres across the UK.

The charity’s award-winning, practical serviced challenge the perceptions of what is possible and increase people’s skills and confidence. Paul Breen, JMW partner and head of the firm’s catastrophic injuries team, said: “We’re delighted to support this worthwhile cause. Several of my clients have sustained a spinal cord injury, and Back Up has been a contributing factor in their rehabilitation.

Back Up supports people who have sustained a spinal cord injury by providing wheelchair skills training, mentoring, rehabilitation activities and help to overcome the challenges of returning to work or school.

“The charity provides a strong support network and I’ve seen first-hand the difference this can make.

Its services are designed and led by volunteers who are themselves affected by spinal cord injury. Sean McCallion, corporate partnerships manager at Back Up, said: “We’re really pleased to receive JMW’s backing for this initiative.

“The new board means that those who have recently sustained a spinal injury and their loved ones will now have access to helpful information about who to turn to for practical support at a difficult time.

“The firm is providing valuable help to underpin our work and ensure we can continue to provide the right support to people with spinal cord injury when they need it most.”

“JMW is at the beginning of its relationship with Back Up and we look forward to strengthening our ties in the future.”

Mr Nikhil Shah Consultant Trauma and Orthopaedic Surgeon FRCS(Tr & Orth), FRCS(Glasg), MCh(Orth), MS(Orth), DNB(Orth).

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

Prof Charles M Court-Brown Professor of Orthopaedic Trauma - MD, FRCS Ed (Orth) Professor of Orthopaedic Trauma at the University of Edinburgh. He has a particular interest in the management of orthopaedic injuries, including both upper and lower limb injures and fractures of the pelvis, spine and neck (including whiplash injuries). He has extensive experience in the surgical management of all fractures and in the treatment of complications related to fractures.

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

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.

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

He has written 9 books and over 160 papers on trauma and its treatment. He has extensive medico-legal experience and averages about 300 new instructions annually.

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

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

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Development of Traumatic Encephalopathy following Single Moderately Severe or Severe Head Injury by Prof Upendra M Chowdhary, MS, FRCS Edin & Glas) Consultant Neurosurgeon The chronic traumatic encephalopathy (CTE) is now being recognised as a major topic for research and discussion among the doctors treating various groups of head injured patients. The long term damage to the brain was first published by Martland regarding people who were involved in boxing and the title of the paper was ‘Punch drunk’. Subsequently case report regarding dementia pugilistica was published. Recently, during the last 15 to 20 years, there, has been an explosive interest in chronic traumatic encephalopathy but most of the attention has been on repetitive minor head injury leading to CTE and most of research is related to brain injury produced during contact sports played in the American continent such as American football, professional wrestling, ice hockey, soccer and even cycling. But there is expanding literature available now in which one episode of moderately severe or severe head injury has been connected to early and more frequent onset of degenerative diseases akin to Alzheimer’s disease later in life.

acute stage and subsequently in a more chronic setting. The acute brain injury leads to petechial haemorrhages deep in the brain parenchyma, cortical and sub cortical haemorrhagic contusions, cerebral surface contusions and laceration of brain which shows up as traumatic subarachnoid haemorrhage and as focal damages in various parts of the cerebral hemispheres and even in the midbrain at the initial CT brain scan which is usually done within a few hours of the acute head and brain injury. In addition to the damage directly sustained by the cerebral parenchyma and in some cases also that to the brain stem one has to add the two types of extra axial but intracranial haematomas that occur in a substantial percentage of patients with severe head injury and these are - (i) acute extra dural haematoma which compresses the brain and shifts that cerebral hemisphere to the opposite side (ii) acute subdural haematoma which produces similar structural changes. If the patients is very severely head injured then such patients may have trans-tentorial coning in which the mid brain is pushed against the tentorial edge on the opposite side giving rise to damage to the mid brain and this may produce prolonged unconsciousness and even persistent vegetative state.

In this discussion I am going to concentrate on the relationship between acute episode of moderate head injury and severe head injury to the development of neuro-degenerative diseases many years later (see below - Fleminger S, Oliver D, Lovestone S et al.). I have published an article entitled, “Chronic Traumatic Encephalopathy: A Medicolegal Perspective” in the summer 2017 issue of The Expert Witness, vol. 1; issue 20. In that article I had discussed the Epidemiology, Pathophysiology and clinical effects of Chronic Encephalopathy arising due to multiple repetitive concussive injuries to the Brain. In this article my aim is to discuss CTE arising from one episode of moderate head injury and due to severe head and brain injury.

The microscopic changes that takes place in the cases of severe head injury (also in moderately severe head injury) are related to other pathological processes such as wide spread vasoconstriction due to blood products in the CSF and blood products in the brain parenchyma itself plus cerebral oedema in cases of diffuse axonal injuries. In addition such patients are much more likely to have early/late onset epilepsy which would causes further ischemic damage. Patients with moderately severe and severe head injury or moderately severe head injury have a CT brain scan within hours of being admitted to a

Pathogenesis and pathophysiology: With the acute severe head injury there are certain pathological changes that happen both during the EXPERT WITNESS JOURNAL

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A paper published by Dr Sharon Shively et al. in Archives of Neurology in 2012 has stated in the abstract, “The best data indicates that moderate and severe traumatic brain injuries increase the risk of dementia between 2 and 4 fold”. Further on in this paper the authors have stated the following – “Traumatic brain injury is perhaps the best established environmental risk factor for dementia. It was estimated that individuals who had had a head injury of sufficient severity to result in loss of consciousness were at approximately 50% increased risk of dementia compared with others where there was no such injuries”. The paper further states, “The veterans who had sustained a severe traumatic brain injury were more than 5 times likely to have dementia compared with controls, while those who had sustained a moderate traumatic brain injury were at more than double the risk compared to the controls.” The paper further stated, “One of the most feared consequences of traumatic brain injury is dementia. Epidemiological studies indicate traumatic brain injury in early to midlife is associated with increased risk of dementia in late life, in the range of 2 to 4 fold compared with the general population”.

hospital. This is adequate for the initial management of such patients and points towards guidelines about monitoring and physiological support. MRI scan of the brain in the acute stages are seldom performed in the NHS because of logistical and financial problems and non-availability of MRI scan during emergency hours. But it has now been demonstrated that if the MRI scan of the brain is done in such patients even 6 months or a year later a considerable amount of pathological changes can be shown on the MRI scan which would point to the persistence of cerebral parenchymal and brain stem injuries even after a long period from the date of the accident. Such specialised MRI scan which uses specialised protocols such as diffusion tensor protocol etc. shows not only haemosiderin deposit but would also show white matter searing effect which clinically is known as diffused axonal injury. All this means that there is now investigation available, which will show, within a period of 6 months to couple of years after the acute head injury, all the residual injuries that have had happened in the brain parenchyma itself at the time of the impact. In addition the MRI scan will show atrophy either focal or more generalised due to severe damage to the neuronal and glial cells. Up to here the pathogenesis and pathophysiology are known but it has not been firmly established, as yet, what happens, in such patients, in pathological terms, who develop chronic encephalopathy many years later and in an increased number but the consensus of opinion is that the ultimate pathology is similar but not identical to what happens in patients who develop CTE after multiple repetitive concussive or sub concussive injuries.

A paper published by Steven T DeKosky et al. in Nature Review Neurology in 2013 has stated under the heading of ‘key points’ the following – “Brain pathology after single incident of severe traumatic brain injury is similar to early amyloid pathology in Alzheimer’s Disease whereas repetitive traumatic brain injury can produce tauopathy with or without amyloidosis”. The author states later in the paper the following, “As the late consequences of traumatic brain injury generates pathology that is reminiscent of Alzheimer’s disease or pure tauopathy, reposit that these two disorders have a shared pathogenesis”.

There are also some subtle differences in the clinical presentation between onset of CTE due to repetitive mild head injury and CTE produced many years after an acute moderately severe or severe brain injury. Whereas the former group of patients develop slowly progressive symptoms mostly starting with personality disorders and behavioural problems, the latter group of patients show clinical picture similar to but not identical to late onset Alzheimer’s disease.

In a paper published by Brent E Masel et al. in Journal of Neurotrauma has stated – “Traumatic brain injury increases long term mortality and reduces life expectancy. It is associated with increased incidence of seizures, sleep disorders and degenerative diseases, neuroendocrine disorder and psychiatric diseases”. A paper published by James A Mortimer et al. in Neurology in 1985 with the title of ‘head injury as a risk factor for Alzheimer’s disease’ has stated in their abstract, “The findings suggest a possible etiological role of head injury in dementia of the Alzheimer’s type. It also states that the range of times of head injury and dementia spans several decades”.

A paper by B L Plassman et al. published in Neurology has stated as conclusion, “Moderate and severe head injury in young men may be associated with increased risk of Alzheimer’s Disease and other dementia in late life”. A paper published by S Fleminger et al. in The Journal of Neurology, Neurosurgery and Psychiatry has stated as conclusion, “This study provides support for an association between history of previous head injury and risk of developing Alzheimer’s disease”. This was a meta-analysis type of paper and has reviewed 15 studies related to this subject. EXPERT WITNESS JOURNAL

Clinical and Medicolegal perspective: The epidemiology and the pathology of CTE, after one episode of moderately severe or severe head injury, has now become established and is being accepted in neurosciences, neurological and neurosurgical spheres. Because this particular subject 51

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related to severe brain injury started to attract attention during the last 10 to 15 years or so in contrast to the subject of CTE arising from multiple repetitive concussive brain injury which dates back at least 25 to 30 years or more there is still only limited information available regarding the clinical importance of this knowledge about the CTE in severely brain injured patients. But some factors need to be noted as explained above. It is now accepted among the neuroscientists working on this subject that in moderately severe head injury and severe head and brain injury the increased risk of dementia is between 2 and 5 fold in contrast to the same age and sex cohort where there has not been any head injury.

markers; Nat Rev Neurol. 2013 April; 9(4): 192-200. 3. Fleminger S, Oliver D, Lovestone S et al. Head injury as a risk factor for Alzheimer’s disease: the evidence 10 years on; a partial replication. J Neurol Neurog Psychiatry 2003; 74:857-862. 4. Plassman B, Havlik R, Steffens D et al. Documented head injury in early adulthood and risk of Alzheimer’s disease and other dementias. Neurology; 24 October 2000, vol. 55 no. 8 1158-1166. 5. Massel B and DeWitt D. Traumatic Brain Injury: A Disease Process, Not an Event. Journal of Neurotrauma. August 2010, 27(8): 1529-1540. 6. MortimerJ, French R, Hutton T et al. Head injury as a risk factor for Alzheimer’s disease. Neurosurgery. February 1985, vol. 35, no. 2: 264.

The medicolegal question that arises is whether a more precise interval between the acute head and brain injury and the onset of dementia can be achieved or not. The simple answer is that it is not possible to give a precise number of years but what can be stated is that a significant of number of patients with moderately severe or severe brain injury will develop dementia akin to Alzheimer’s disease some 20-30 years after their head injury which will be earlier than the general population without the head injury who develop senile dementia or Alzheimer’s disease but have not had a head injury. It is now accepted that the CTE arising from one episode of severe brain injury is a fact of clinical medicine and that this happens 2-5 times more often (2-3 fold more in moderately severe brain injured patients and 3-5 fold more in severely brain injured patients) and that this needs to be kept in mind during a long follow up of the severely brain injured patients who have achieved initially enough recovery to be ambulant and at least able to live in the family and social surroundings with some support but are not in a minimally conscious state and are not in a vegetative state.

7. Shively S, Scher A, Perl D et al. Dementia Resulting From Traumatic Brain Injury. Arch Neurol. October 2012; 69(10): 1245-1251.

Prof Upendra M Chowdhary, MS, FRCS Edin & Glas) Consultant Neurosurgeon Contact address for the author E-Mail: upendrachowdhary@yahoo.com

Need an expert fast Call our free searchline on 0161 834 0017 GOOD NEURORADIOLOGY

It will be interesting to see how the medicolegal and the legal profession takes up this subject towards the pounds and pence of compensation in the coming years, but not being a legal person I am not able to give an opinion on this precise subject. I would also like to add that severe and moderately severe traumatic brain injury in children, especially up to mid or late teens should be considered as 3 to 5 times more likely to develop CTE much earlier than their cohort of the same age and sex who had not had any head injury. This is because of the fact that their life span from the time of severe brain injury say in preteen or mid teen years would be much longer than a middle aged person sustaining similar traumatic brain injury.

Dr Catriona Good MBChB, FFRad(D), FRCR, PhD Dr Catriona Good is a Consultant in Neuroradiology and Honorary Senior Lecturer at Brighton and Sussex Medical School. Dr Good is suitably qualified to provide expert opinions on all aspects of brain and spinal neuroimaging. Including: all aspects of diagnostic brain and spine imaging, brain and spinal trauma, brain haemorrhage and stroke, neurodegeneration including dementia, movement disorders, skull base, orbital and ENT imaging, TMJ imaging and Peripheral nerve imaging. Dr Good has been undertaking medicolegal work for the past 16 years and is a vetted expert for Academy of Experts, Faculty of Experts and APIL (1st tier). Cases include personal injury, clinical negligence, criminal cases and GMC and Irish Medical Council fitness to practice proceedings. She undertakes both Claimant and Defendant work and has been instructed as a Single Joint expert. Dr Good has attended Coroner’s Court on four occasions and an Irish Medical Council hearing. Medical Report turnaround time is usually 3 -5 weeks but she can provide reports in 5 working days in urgent situations. Dr Good can also supply Screening Reports.

References 1.Upendra M Chowdhary. Traumatic Encephalopathy: A Medicolegal Perspective. The Expert Witness. Summer 2017, Vol 1, Issue 20; 73-76.

Tel: 01444 441881 ext 5718 Email: catriona.good@btinternet.com Web:www.goodneuroradiology.com Area of work Nationwide

2. Dekosky S, Blennow K, Ikonomovic M et al. Acute and chronic traumatic encephalopathies: pathogenesis and bio-

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A Not Very Expert Witness by Anthony Lipmann Becoming an expert witness was not, in my case, a career choice. Instead, it was something that hunted me down in my riper years because my knowledge was in an unusual field. I am a metal merchant (think Steptoe & Son on steroids if you like) and it was my alleged expertise in the trade in rare earth oxides and metals that was required in a fraud case.

off the island of Senkaku in 2010 the touch paper for the rare earths war was lit. China, the USA believed, had orchestrated the incident as an excuse to weaponise the trade in rare earths, imposing export quotas on these elements which they monopolised. These were the circumstances that lay behind the apparent public interest in unpronounceable elements such as Neodymium, Dysprosium and Praseodymium; essential to the manufacture of permanent magnets, required in applications in which it was imperative the item could not be demagnetised and thus disabled. But other rare earth elements, strictly speaking called Lanthanides, such as Cerium, Thulium, Lutetium, Gadolinium, Ytterbium, Holmium, Erbium, Terbium and Samarium were all affected too.

Although my educational degree was in literature, I had spent almost forty years in metal, supplying rare and unusual elements, low in volume and high in value, for a host of applications – from mobile phones to catalysts, and from specialty glass to single crystal turbine blades for jet engines. Surprising as the literature angle might seem, it was the fact I was comfortable with words, and wrote articles about the metals industry, that gave me the confidence to take on the role of expert witness.

What had happened – and I was long enough in the tooth to know this – was that something which was essentially only relevant to the metal trade, had – as it were – gone viral. Those with no knowledge or ‘a little knowledge’ of elements and rare earths were much exercised. And it was this that proved such fertile ground for financial fraudsters. The story was that it could be lucrative for members of the public to invest in a group of elements that were being used as a geopolitical weapon in the rivalry between China, the USA and Japan.

Accepting risk was not something I was afraid of either. Back in the 1990s, I spent a couple of weeks of each month travelling the CIS purchasing metal scrap that was being dismantled from the crumbling Soviet Union. It was the peace dividend in metal; and a business that tended sometimes to involve unsavoury characters. To get through it, I always focused on the metal itself, its specification and what it could be used for. On one occasion, I bought the remains of a titanium distillery in Armenia that had been artfully disguised as a pig-sty. On another, I shipped titanium plates from Komsomolets Class nuclear submarines, with the curve of the hull still clearly visible, scrapped because the submariners had not been paid.

To give you an idea of how far this theme developed, the Netflix soap opera, House of Cards, with Kevin Spacey as the U.S. President, had a rare earth plot line in it, involving Chinese influence on U.S. trade policy in return for a rare earth investment.

For me, being invited to be an expert witness in a rare earth metal fraud case was just another challenge and I thought it might prove stimulating.

What happened in real life was that fraudsters used the publicity and hysteria around rare earths to give veracity to sales of rare earth investments to widows and orphans, guaranteeing astronomical returns, while using boiler room techniques, such as telephone sales, to reach the bewildered and unwitting.

I should explain. The subject of rare earths, came to public attention, and to those without a blind bit of interest in the metals industry, via broadsheet reports that the U.S. was being held to ransom by the Chinese for the supply of certain elements in the periodic table essential to U.S. weapons programmes. Most of these items originated in China, so when a Chinese fishing trawler, Minjinyu 5197, rammed a Japanese coast guard patrol boat in disputed waters EXPERT WITNESS JOURNAL

Of course, while most metal merchants saw this coming, sadly those outside the trade only saw the story they were being sold. In the trade association of which I am a member, The Minor Metals Trade Association (www.mmta.co.uk), one of our rules is 54

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that we are not allowed to sell metals to investors. Minor metals are too illiquid, volatile and difficult enough to trade, even for those like me who have spent a life time in it. To consider that these items would be an investment instrument was simply irresponsible.

excited about the matter as it appealed greatly to the ‘I told you so’ side of my personality. But, shortly after agreeing to the job I realised, to my discomfort, that I was not acting for the good and righteous who had invested in rare earths but to the accused. While, as mentioned before, MMTA rules forbade members from selling metals to investors, there were no rules in the wider investment community to do the same. We had to stand by and watch as companies were founded as fast as mushrooms growing in a cellar, to offer groups of rare earth elements in themed units of ‘tech’, ‘green’, ‘electronics’, ‘batteries’, all dressed up for retail, like posies of cut financial flowers – but there was little that we could do. It was not illegal.

But a toxic mix of story, greed and naivety tends to provide opportunities for those with bad intentions to relieve the untutored of their money. The starting pistol for the rare earth crisis had happened in 2008 with the publication of an apparently erudite report entitled Minerals, Critical Minerals and the U.S. Economy published by the National Academy of Sciences in Washington which claimed that the U.S. was vulnerable to China for 97.6% of its rare earth needs, and to the world for 100%.

Those behind the schemes were often located offshore in sunny places such as Malta, Gibraltar or the British Virgin Islands, holding rare earths in stock in warehouses and issuing warrants to be marketed to widows and orphans, spinning the tall. Newspapers and magazines stoked the issue with lurid headlines which could all be paraphrased along the lines of ‘The Chinese are plotting our destruction by holding back Rare Earths’. No one appeared to question, if that was the case, how it was the investment vehicles were able to provide supply? The sales literature followed a similar banal pattern, claiming that rare earths were un-substitutable in various applications, and investors could anticipate handsome 20-50% returns.

On the back of this, and the fever it created, prices for some elements had risen by as much as 20 or 30 times. An element such as Neodymium which had been languishing at $20 per kg in 2007 had risen to $550 per kg by 2011. Governments scratched their collective heads wondering what needed to be done. I attended a metals conference in Washington in 2009 at which lobbyists appeared to stop little short of recommending bombing China. Xenophobia was in the air. As prices reached preposterous levels, I was invited to be witness before the Parliamentary Select Committee for Science and Technology which was investigating whether tax payers’ money should be spent to stockpile these items.

Although, as I say, my interest had been piqued by the approach, and I was excited to be involved, knowing now that I was to act for what I regarded as the wrong side made me want to back out. Taking time to reflect, though – and I am glad that I did - I reasoned that an alleged murderer is entitled to a fair trial in the UK, so I accepted.

I knew things had gone badly wrong when, visiting my local barber in Walton-on-Thames, and under the razor blade, he asked me, ‘whether it would be a good idea for him to invest in rare earths?’ After the bubble burst following the run-up in prices, based on ever more wacky, ill-informed, and wild reports of the world running out of these elements, lo and behold the world did not end. In the interim, the Chinese had obtained high prices but still exported; and no wind turbine, aircraft engine, battery or weapons system was delayed or remained unbuilt due to a lack of rare earths.

And this is the first lesson for anyone considering expert witnessing – you need to understand that your responsibility is to the court, the process and your knowledge – not to your personal view of the case. What happened next, should then give further pause for thought to anyone thinking of becoming an expert witness without due preparation. The job was to read several hundred pages of court notes to a previous case as well as statements in the present one, and then to unpick the argument of the other side to hand to the barrister via the defending solicitor. This was not an easy job, and in fact I took at least one solid week away from my trading desk to think and study the case.

By about 2012 the wind had gone out of the sails and prices had gone back to close to square one. An entire mine called Mountain Pass in the U.S., sold to investors on the basis that it was a rare earth mine outside China, had eaten a billion-dollar mountain of cash and gone into bankruptcy without delivering any significant output. Perfectly sensible companies had lost money and were nursing their wounds. Egg was liberally splattered across continents.

To assist me, I employed one of the bright young men who pass through our door on work experience. His name was Josh. Josh only had experience of the theatre but was entitled to feel this assignment was

So, it was not a surprise when in 2016, I was telephoned by a firm of lawyers seeking an Expert Witness in a case of potential fraud. At first, I was EXPERT WITNESS JOURNAL

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better than making the tea. So, we gathered together what I knew about rare earths from our office filing cabinets; prices and charts going back to the 1990s, production figures, market views, a host of worthy reports issued by consultants who had been employed during the bubble to advise governments, investors, traders, consumers – all with the aim of seeking defence arguments for the accused.

‘He got off ’, the solicitor said.

Putting it melodramatically, we felt as if we were on the Washington Post at the time of Watergate – but that was only in our heads.

Friends and family had surprised me, prior to the case, by asking ‘Why are you acting for the defence?’, as if an accused should only receive a defence in the event that society feels like it.

Clutching at straws, I asked, ‘But was the defendant a little bit chastened at least?’ ‘Do you think perhaps he will mend his ways?’ ‘No’, the solicitor said, ‘he has retired back to his home in the suburbs and will most likely do it all over again.’

At one point, we were trying to track down a phrase that I was certain I remembered from the National Academy of Sciences paper, citing that the USA depended upon China for 96% of all its rare earths. We just couldn’t find the quote anywhere, and I was beginning to doubt my memory, until Josh, after many hours of googling, found the exact sentence. It turned out that the search engine wouldn’t bring me the answer because the actual figure was ‘97.6’%! It was a eureka moment with much punching of the air. So, off went our 12-page report.

I now had a much harder question to answer. ‘What could I say (hypothetically) to all those who lost money?’ It was not an easy question. The only answer that came to mind was ‘Get a better prosecuting lawyer’. So, the second point to make to any potential expert witness out there is - remember this is the law and we live in a highly sophisticated country with due process. Judging between right and wrong is a question of evidence and argument. The greatest calling of the expert witness therefore really is to be an expert – even if your expertise appears, alas, to bring about what you may personally regard as the wrong result!

We had done our best; but, having read the transcript of Metropolitan Police interviews, and the statements from the widows and the bewildered who had been duped, I did not give much credence to our success.

An earlier version of this piece, written specifically for the metal trade, was published on June 21st 2017 on www.lord-copper.com For further information please see; www.lipmann.co.uk

In 2017, the case was heard and went on for a number of weeks, no doubt to the mind-numbing boredom of the jury. And then, a week or so after, I judged it would be all right to ring the solicitor, as I was curious to know how many years the defendant might have got.

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

Graham Rogers and Associates Limited

0113 218 5943 0113 218 5987 07702 550 758

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

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

Specialising in children & adults with learning disabilities.

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.

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

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

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What Really Happens in Discussions Between Experts? Mark Solon interviews Nick Deal, Barrister and Head of Expert Witness Training at Bond Solon, about experts’ discussions. What do you think about the use of discussions between experts? I think the use of experts’ discussions is very useful. When they do work – and in the vast majority of cases they do work well – it enables the two parties to see the strengths and weaknesses in their cases. When conducted well, discussions between experts can encourage the parties to come to a realistic settlement.

Do you have any examples? One particular story is of an expert witness whose opening gambit is ‘well this is my view and I’m not going to change it. I have been an expert for x number of years, this is my view and I don’t see any reason to change it’.

Even when it doesn’t lead to a settlement, it leaves the judge with a much clearer understanding of what the areas of dispute are between the two experts. So instead of 10 areas to discuss in court there may only be one. Therefore it helps the judge and it helps with timetabling for cases because it can reduce the time needed to resolve expert witness issues.

Is there anything that experts can do about a difficult counterpart? In your preparation, consider these attitudes and behaviours a possibility so they don’t come as a surprise. Remind yourself of your role and the rules: you are there to discuss the issues with the other expert, to narrow them down where possible, to reach agreement where you agree and short reasons for disagreement where you disagree.

What aspects of experts’ discussions do experts find most difficult? It seems to be the other expert; the expert they are having a discussion with. Experienced experts, who have been through a number of discussions in the past, tell me that where things do go wrong it is usually because of the personality, attitude and behaviour of the other expert.

If the other expert is being obstructive, one option is to remind them of what you are both there to do. If they are still being obstructive, challenge the behaviour. You have an obligation to produce a joint statement and if the judge doesn’t get it then they will want to know why. The complication is that what is said in the meeting is legally privileged so it would be difficult to tell the judge about obstructive behaviour. What you can do is to offer to draft the joint statement, noting that you attempted to discuss issues but were unable to do so: if this report is shown to the other side it may lead to action and a more productive meeting.

There can also be problems related to hierarchy based on job title and experience as an expert. This can create a background intimidation – in some instances but rarely it is used overtly – of ‘I am the more experienced expert, I know what I am talking about and you don’t’. EXPERT WITNESS JOURNAL

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the discussion. I don’t know to what extent his instructing solicitor got involved but, again, he handled it. The meeting was to take place in the expert’s offices. After telling the solicitor that he couldn’t attend, the expert left instructions with reception staff not to allow the solicitor in. The solicitor duly turned up downstairs and they barred him.

Have you ever heard of a case where experts couldn’t agree on the issues? Yes, there have been a few. The only ones that I have come across when they completely disagreed about everything are those ones where the other expert was misbehaving. The one that springs to mind was the case Trebor Bassett Holdings Ltd v ADT Fire & Security Plc [2012] where no joint statement emerged because the experts just fell out in the course of the discussion. But, talking to experts, in nearly all cases, they are able to reach agreement on some issues and therefore produce a statement in the end.

I thought that solicitors would be mentioned at some point. Do you hear complaints about solicitors and the instructions? Experts sometimes find that they and their opposite number have two very different sets of information from their solicitors. So when they write their reports, exchange reports and then come to have a discussion they realise that they are basing it on different evidence. Sometimes they are even asked to consider different issues. They are left then to try to piece together a useful agenda. It is a failing in the instructions and in the exchange and disclosure of evidence. I have only come across this in major construction cases and it could be that the issues in these cases are so multiple that it is quite difficult to ensure both parties are dealing with the same thing.

Does it reflect badly on both experts if they can’t produce a statement? It can do, yes, because judges have a basic presumption that if you have two good experts then they will be able to agree something: they cannot be irreconcilable on every issue. Even if you can’t agree, with a bit of creativity, experts can narrow the issues rather than giving up and giving the whole job back to the judge. For example, even if two experts cannot agree on a method for calculating a sum then they can agree on the sum if principles A were used and the sum if principles B were used.

What can experts do if they realise they have received different documents or instructions? Often they have instantly contacted their solicitors to explain what is going on, which is a good idea to keep communication open. Then they have discussed with the other expert what they can usefully do in that meeting. They have considered the additional information and – where they can consider it there and then – they have moved forward on that basis. If it needs more thought then they have called off the discussion and rearranged when both experts have had the chance to digest the information.

What if experts can’t cover all the issues in one discussion? In one international arbitration the experts had so many issues to work through that they ended up meeting once a week for a few months, discussing one issue per meeting. The discussion became a series of discussions and the joint statement became a series of summaries of each of those discussions. This is a great example of how experts’ discussions don’t have to be a one-hit event. Are there any other areas that experts find difficult? Where the experts are fairly evenly experienced, the discussion can become a point scoring exercise, sometimes because they know each other and have met each other before. The discussion can become a high level academic debate and a desire to win over each other on a point rather than discuss the issues.

If the experts’ discussion takes place through a phone call or skype call then it is fairly easy to rearrange the meeting. But where a face to face meeting has been used then experts may be keen to make the most of that face to face time. They could do an exercise to work out what the differences of information are, to think through the potential impact, what each expert needs to do and agree a way forward.

Another difficult area that an expert told me about, was inequality of numbers. In this case they were acting as an expert over several different areas but on the other side there were going to be 3 experts. So when it came to the face to face discussion it was him ranged against 3 different experts on the other side. He is very experienced so he managed it very carefully: he said ‘you are welcome to attend but I’m going to meet with you individually and we will discuss individual areas of expertise, not the whole lot at the same time’.

Have you ever heard of expert witnesses being asked by solicitors not to reach an agreement? There have been instances of the experts being told not to agree certain areas. This is against the rules and certainly against the guidance for instructing experts, which says clearly that experts should not be instructed not to reach agreement and should not accept instructions not to reach agreement. Solicitors may also ask you not to discuss a particular area. But if that is within your area of expertise or if it is in your report then the solicitor may not rule it out of discussion.

In this particular case he also had quite a lot of grief from the other side’s solicitor who wanted to attend EXPERT WITNESS JOURNAL

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in their work as an expert witness. If you were to give one piece of advice to an expert about to take part in a discussion what would it be? Preparation: thorough preparation. Preparation involves a few things. Firstly, remind yourself of the rules, your obligations, and what you are there to do. Secondly, read through your own report, the other side’s report and any supporting documentation because you need to be really familiar with the whole case when you start the discussion.

For lawyers it is very worrying not knowing what the experts are going to agree and not having any control. That frightens lawyers and can lead some of them to do silly things, trying to control the meeting through instructions or by turning up. The Jones v Kaney case brought a lot of attention to discussions between experts. Can you tell us more about the case? It all centred on the expert discussion. The case arose from a road traffic collision in 2001 where the claimant sustained physical and psychological injuries. The claimant’s solicitor appointed a consultant clinical psychologist who produced a report stating that she thought he was suffering from Post Traumatic Stress Disorder and he issued a claim against the other driver on that basis.

Mark Solon Founder of Bond Solon and Chairman Wilmington Legal

The district judge ordered a discussion between the experts and a joint statement. It was a telephone discussion. The psychiatrist for the defendant prepared a joint statement and the psychologist signed it without amending or commenting on it. The joint statement said that the psychological issues were nothing more than an adjustment reaction that didn’t amount to a depressive disorder or PTSD. It went on to say that the defendant was deceptive and deceitful in the reporting of his symptoms and that the experts agreed that his behaviour was suggestive of conscious mechanisms which raised doubt as to whether he was genuine or not. This was vastly different to what the consultant clinical psychologist had said initially.

To assist experts in this area of their work, Bond Solon offers an Experts’ Meetings training course.

When the consultant psychologist was challenged by her solicitors about how this had come about what she described was the following: 1) She hadn’t seen the consultant psychiatrist’s report before the telephone conference

Dr Adrian Thomas

Nick Deal, Barrister and Head of Expert Witness Training at Bond Solon

For further details on this course please visit www.bondsolon.com or call us on 020 7549 2549. Bond Solon is the UK's leading Expert Witness Training Company and since 1992 have trained tens of thousands of expert witnesses.

Consultant Paediatric Gastroenterologist since 1992 BSc MBChB MD FRCPCH

2) The joint statement didn’t reflect what she had agreed in the telephone conversation but she felt some pressure to agree to the document

Expertise in: Paediatric gastroenterology & nutrition (gastrointestinal disease and nutritional disorders in children and young people up to 18 years old) Inflammatory bowel disease (IBD, ulcerative colitis, Crohns disease) Irritable bowel syndrome (IBS) Gastroenteritis and food poisoning Intestinal failure and short bowel syndrome (short gut) Malnutrition, failure to thrive, malabsorption Feeding problems, cerebral palsy Enteral and parenteral nutrition Constipation, coeliac disease, food allergy, gastro-oesophageal reflux, gastrointestinal bleeding Quality of life assessment Endoscopy Evidence based medicine and child health.

3) Her real view was that the claimant had been evasive but not deceptive 4) She felt that he had suffered PTSD, which was now resolved 5) She is happy for the claimant’s solicitor to amend the joint statement. However there isn’t a chance to do this as the joint statement is signed by the two experts.

Contact Details Tel: 0161 941 2292 Mobile: 07931 593 428 Email: Adrian.thomas@cmft.nhs.uk Fax: 0161 941 2292 Royal Manchester Children's Hospital Oxford Road Manchester, M13 9WL

These 5 points were taken from the claim form against the consultant psychologist and it is worth remembering at the time that the case went to the Supreme Court these allegations had not been proved. The Supreme Court Case was to ascertain whether, if these allegations were made out, she could be sued. In that landmark case of Jones v Kaney it was decided that experts can be sued for negligence EXPERT WITNESS JOURNAL

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Cultural Slip-ups in West and East European Handshakes Dr Bashir Qureshi FRCGP, FRCPCH, AFOM-RCP, MICGP, Hon FFRSH-RCOG, Hon FRSPH, Hon MAPHA-USA • Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. • Expert Witness in GP Clinical Negligence. • Author, Transcultural Medicine; dealing with patients from different cultures. Handshake is an act of holding and sometime shaking a person’s right hand with one’s own right hand. It symbolises establishment of friendship. In ancient days, it was a symbol of not taking arms against each other, as right arm was used to use them. It is estimated that there are about 85% people right handed in the world. However, I observed on television that David Cameron, Tony Blair, Bill Clinton and Barack Obama were signing papers with their left hands but they shook hands with their right hands. In first week of July 2017, I observed the BBC broadcast covering G20 conference in Hamburg, Germany.

meet women for social chats. Sometimes, men have to make plans for war to bring peace. • “Eye to eye contact” is very rude in East Europe and Eastern World. It means a confrontation or a sexy love affair. The mother would tell her child “do not look at your father in the eye, look at him and then look away”. “Eye to eye contact” between men or women is essential in Germany and England. Historically, they are brought up to think that everyone in the world does or should behave as they do. Cultural concepts do not change easily. Mind the gap.

Polish First Lady shook hand with American First Lady, first and then with Donald Trump. No eye to eye contacts Poland was in the USSR (Union of Soviet Socialist Republic) and now joined the European Union. The culture remains Eastern. The President of the USA, Donald Trump chose to visit Poland before going to Germany to attend the G20 conference to show solidarity. In a public meeting, on the stage, Donald Trump and Polish President Andrzej Duda stood in centre and their wives, first ladies, stood by their sides. Donald Trump shook hand with Polish President, without an eye contact and then offered his hand to Polish first lady Agata Komhauser-Duda. He looked stunned when the Polish first lady bypassed him and went across to shake hand with American first lady Melania Trump. She turned back and shook hand with Donald Trump without an eye contact.

Vladimir Putin and Donald Trump shook hands with curious eye contact Donald Trump almost always offers his hand first, most likely because he is a long term experienced businessman. He shook hand with Vladimir Putin and both looked at each other with eye contact. Vladimir Putin looked apprehensive which was apparent by his eyes, face and body language. I assume that Putin would look Westerners in the eye but look away while talking with Easterners. He is a Westernised Easterner. Many leaders and people in the world are Westernised Easterners for financial and political reasons. People are Westerners, Easterners and Westernised Easterners in the world. Culturally; • “Eye to eye contact” is more common in the West. The Western profile is “vision, then hearing and touch, if necessary”. One speaks while the other listens.

The western media had a whale of time to broadcast and print it as “Polish first lady snubbed Donald Trump”. The polish President kept saying that it was fake news. In fact, there are two Transcultural points:

• “Handshake or embracing” is more common in the East. The Eastern profile is “touch, then hearing and vision”. Both parties speak and listen at the same time.

• In the East Europe and Eastern World, women shake hand, if they have to, with women first and then with men, if at all. Men meet men and women EXPERT WITNESS JOURNAL

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Nevertheless, please remember many Westernised Easterners. There is always exception to every rule. We should be ready to learn, adjust and communicate for mutual benefits.

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

Theresa May offered her right hand first to Donald Trump; good eye contact Theresa May played a trump card; she shook hand with Donald Trump while looking with a smile, into his eyes. He assured her that a “powerful” trade deal between the US and the UK would be completed “very, very quickly”. Moreover, Theresa May has also seized on the support of other world leaders over Brexit. This should put down a growing rebellion from some cabinet colleagues and backbenchers. Culturally, unity with leaders and people among Western Europe is more likely than ties with leaders from Eastern Europe.

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

No picture of any handshake between Angela Merkel and Donald Trump I tried hard but could not find any picture of handshake between Angela Merkel and Donald Trump at G20 conference. I learnt from media that Donald Trump had no press picture of handshake with her when she recently visited Washington. He advised her firmly to pay more money towards the NATO defence fund. Tough luck again!

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

Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS

Angela Merkel was born in Hamburg, Germany. Donald Trump has German ancestry from his father’s side and Scottish from his mother side. Opposite poles attract each other and similar poles reject each other. I mean magnetic poles and it should not be confused with Poles in Poland. ■

Dr Sikhar Sircar Consultant in Obstetrics and Gynaecology 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. 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

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Having worked as an in-house lawyer for nearly half of his professional career, there are many things Richard O’Sullivan wished he’d known when he first moved in-house. Here are some of them The August/September 2016 Gazette (p20) reported on a RED C poll conducted for the Law Society that noted that nearly 20% of all solicitors work in an inhouse role in Ireland. For many of us, in-house legal has become like a third branch of the profession. Some people might argue that there are now three distinct types of lawyer – solicitor, barrister, and inhouse. Those poll figures had real results. More than ever before, the Law Society is recognising and supporting the unique requirements of in-house lawyers.

car lurches forward and crashes. Too much brake and it never gets going at all. It is when the two work well together that the business is able to drive forward. That teamwork is what all in-house lawyers should aim for. Top of the pops With that in mind, my list of things I wish I had known seemed ripe to be converted into a top-ten list. This list reflects some of the key issues that any solicitor wanting to move from private practice into an in-house role should bear in mind. Some of the items on the list are really touchstones – they are points that every in-house lawyer should think about at least once a day. Others are pointers and are the result of practical experience. Hopefully, this list will guide new and prospective in-house lawyers and provide a sanity check for those of us who have been around for a while.

In-house legal can be a very rewarding career. As a lawyer in a commercial law firm, you are likely to be a specialist, or even a micro-specialist, in one area of law. As a general practitioner, you have to spread yourself across many different areas, from probate and conveyancing to litigation. As an in-house lawyer, you become what I call a ‘specialist generalist’. While you will often have an in-depth knowledge of a small number of areas (for example intellectual property, data protection, and contracts), you will also be expected to know enough about most other areas of law to at least spot legal issues and provide some preliminary advice.

Remember, you are a support service As a private practice lawyer, you are used to being the goose who lays the golden eggs. You are a fee earner in your firm, and everything is structured to support you to earn money. When you move in-house, the dynamic changes radically. You change from being the star of the show to being a support service for the other people (sales, operations, R&D) who make the money.

In-house lawyers are an integral and indispensable part of their companies. Mark H McCormack, renowned businessman, author and Yale-educated lawyer, uses the analogy of a car. Business executives are like the accelerator pedal. The in-house lawyer is like the brake pedal. Too much accelerator and the

EXPERT WITNESS JOURNAL

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way that stationery or electricity is a cost. This change in dynamic means you must continuously ask “what am I doing to justify my cost?” It pays to never be complacent in an in-house role.

– avoid Latin and legal jargon. Try to put yourself in your colleague’s position and ask: “If I had to make the decision, what advice would I want to get from my lawyer?”

You only have one client In private practice, you have many clients. Clients come and go. You might see one client several times a year and another client just once. When you move in-house, you have just one client, and you need to know that client intimately. You need to know your client’s business in a level of detail that would never apply in private practice. You need to know the people, the personalities, and the politics. If your client is a software company, you need to understand everything about what that software does. If your client makes widgets, you need to become an expert in widgets.

A corollary to this is to try to give practical, workable solutions to your client. Avoid becoming the ‘Department of No’. If you think the business should not do what has been proposed, explain that and try to provide a positive answer as to what the business can do instead that might achieve the same goal. Become a trusted advisor As an in-house lawyer, you should aim to be more than the person who gives legal advice and drafts contracts. Your objective should be to become a trusted adviser to the board, the CEO, and the senior management. Aim to be the sensible sounding board for all key business decisions and the first person the CEO calls when there is a crisis. In short, you want to be the consigliere to the company. Think Robert Duvall’s character in The Godfather movies – he was the trusted in-house lawyer to the eponymous Godfather (pro tip: if you haven’t seen The Godfather movies, watch them).

Take proper instructions Every in-house lawyer has stories of conversations in corridors, or in the canteen, that are later quoted back as formal legal advice. Be mindful that what you might think is an informal chat can often be seen as a legal consultation by your business colleagues. It is often a good idea to summarise these informal conversations afterwards in a short email to your colleague. Tell your colleague that if she wants more formal legal advice, you can arrange that. It is also a good idea to have a legal advice policy in place, setting out who can ask you for advice (for example, managers and department heads) and what the process is. This helps the business to use you most efficiently and is a good cost-control measure.

Remember your independence When you are an in-house lawyer, you are not only an adviser to your client, but also an employee of your client. However, even though you are an employee, bear in mind that you are not like everyone else in the organisation. You are a solicitor. You are a member of a separate, distinct profession with its own rules and ethics. You have a duty to be not only a loyal employee to your company, but also to be a reliably independent legal adviser to your client. This can strengthen your position in the organisation. Your independence often allows you to question decisions and to act as devil’s advocate.

Don’t become a crutch for the business In many businesses, particularly regulated ones, there can be a temptation to send everything to the Legal Department for ‘legal sign-off ’. You should be clear with your colleagues as to what ‘legal sign-off ’ actually means. It is not a universal blessing that immunises their decisions from any future criticism. It is, at best, the considered opinion of you, as a lawyer, on the relevant legal issues involved. In some cases, business colleagues can become overly reliant on having legal sign-off before they make a decision. That is not good for you, for them, or for the business. Watch out for those people who use your legal advice to give them cover for their own decisions: “Well, I checked with legal and they said it was okay”. Consider putting a legal advice policy in place that sets out what legal advice is, and what it is not.

Remember your integrity As a lawyer, you are only as good as your integrity. Along with your independence, it is part of what sets you aside from everyone else. If you have thought through all the possibilities and you have to tell your client not to proceed with a particular decision, then stand by your advice. It can be very difficult to withstand the pressure from colleagues who think that the Legal Department is not being commercial, or is a blocker to the business. Resist the temptation to change your advice to keep everyone happy. Once you have lost your integrity, it is gone forever, so guard it jealously.

Be practical As lawyers, we often have a fascination with the minutiae of judgments and legal arguments. This fascination is usually not shared by our business colleagues. Remember, they generally want to know “can I do the thing I want to do – and, if not, why not – and what can I do to rectify that situation?” Try to answer that question simply and clearly. Use plain language EXPERT WITNESS JOURNAL

Remember to add value Remember tip number 1 – you are a support and a cost. Ask yourself, on a continuous basis, “What am I doing to add value?” It is no longer enough to just give basic advice and negotiate contracts. You should try to expand your role. Become a company secretary, head of compliance or data protection officer 63

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As in-house lawyers, we are not in competition with each other. There is no reason why we cannot help each other or be at the other end of the phone when a colleague has a question. So remember to reach out for support and to stay in touch.

(note: the GDPR becomes effective in May 2018). As lawyers, we are particularly suited to risk management. In-house lawyers should try to be the chief risk officer for their client where possible. It is a great way to add value, and it places you at the heart of the business.

Here is the plea – be open to taking cold calls from other in-house lawyers who need advice, and be open to making those calls yourself. Consider setting up an informal network of in-house lawyers in your area. You could meet for coffee once a month and share experience, advice, and maybe the odd template document. We have everything to gain by extending a helping hand to each other. ■

Have fun! There are some great advantages to working inhouse. There is no more ‘red clock, green clock’ time billing, invoicing, or compulsory marketing. That is not to say that in-house work is any less challenging than private practice. In many ways, it can be even more complex, with multiple business units in multiple jurisdictions. But working in-house can open up career options to move into a business management role, or even to head the business as CEO. It can be invigorating to work with non-legal colleagues who are just as eager to learn from you as you are from them. Whether you are in a start-up or an established company, working in-house can add a wonderful variety to your work life.

Richard O'Sullivan Email: rosullivan@globalshares.com LinkedIn: www.linkedin.com/in/rosullivan2 To view our full programme visit: www.lawsociety.ie/Lspt Centre of Excellence for Professional Education and Training For a complete listing of upcoming events including online courses, visit www.lawsociety.ie/CPD or contact a member of the Law Society Professional Training team on: p: 01 881 5727 e: Lspt@lawsociety.ie - f: 01 672 4890

Bonus tip This is really half tip, half plea. When you first make the move in-house from the comforting and familiar environment of a law firm, it can be quite a shock to realise that you are out on your own. There are no longer any legal colleagues down the corridor. There is no one to sanity-check your ideas or give a helping hand.

This article was first published in the Law Society Gazette (July 2017, at www.gazette.ie) and is reproduced with permission.

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

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Expert Evidence: Key Differences Between England and Scotland by Barbara Bolton, partner in Commercial Dispute Resolution, Shepherd and Wedderburn definitive timetable has been released for the introduction of the new Scottish civil procedure rules, but it is anticipated that they will come into force around 2019 or 2020.

Under the current rules there are significant differences between Scotland and England and Wales (E&W) in terms of the procedure for presenting expert evidence. The following note covers some of the key differences which solicitors and experts should be aware of.

Certification In E&W the general principle is that the court should control the giving of expert evidence and no party may call an expert or put into evidence an expert’s report without the court’s permission. When seeking permission parties have to provide the court with cost estimates and have to specify the expert’s name (if practicable), the field in which expert evidence is required, and the issues that the expert evidence will address.

However, the Scottish Civil Justice Council (SCJC) is undertaking an ambitious and comprehensive rewrite of the existing civil procedure rules for Scottish courts (the Court of Session and the Sheriff Courts) and if those recommendations are implemented, the procedure for expert evidence may become much more aligned with E&W, although some key differences are likely to remain. No EXPERT WITNESS JOURNAL

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Lord Carloway also set out the reasons for lodging a report, the first being to “provide the other side with greater notice of the evidence to be adduced” and the second being that it “may assist a party in adducing the evidence of his expert if that expert has his report to hand and is taken through it in easily digestible sections.”

In Scotland on the other hand, no certification is required from the court prior to instructing an expert and the parties decide what expert evidence is necessary, how many experts are required and on what issues they ought to give evidence. However, certification of an expert is required in order to recover the cost of instructing the expert from the other party. Certification cannot be sought until after the court has determined the merits of the dispute, when an award of expenses (order for costs) is made.

The position in Scotland may soon become more in line with that in England and Wales. In their Report the SCJC included a chapter devoted to evidence in which they recommended that the default position in Scotland should be that parties be required to lodge a witness statement for any expert witness and that the written statement be taken as the expert’s evidence in chief, with oral evidence restricted to clarification of the report and cross-examination.

For the court to certify an expert, the witness must be a skilled witness and their evidence must have been reasonably necessary. The court normally grants certification of experts but it can be refused in certain circumstances; for example, problems may be encountered if an expert witness has been instructed but their report was not lodged and/or they were not called as a witness. Therefore, in Scotland parties have more freedom to decide what expert evidence will be brought, but they carry the risk that they will not be able to recover the expense of obtaining that evidence should the court determine that it was not necessary.

The Expert’s Duty to the Court Rule 35.3 of the E&W Civil Procedure Rules states that an expert has an overriding duty to the court, which prevails over any duty to the party that has instructed and paid for the expert report. There is no equivalent written rule in Scotland, although in practice Scottish solicitors do alert experts to their duty to the court and experts tend to be well aware that they have such a duty.

The SCJC considered whether any changes ought to be recommended in this area. It concluded that as no real concerns had been raised regarding unnecessary instruction of experts aside from in family cases, and as any issues could be addressed by the courts refusing certification, they would not recommend introducing greater judicial control of expert evidence or a requirement for permission to instruct an expert. For the moment it appears that this key difference in procedure will remain.

The SCJC has proposed that the new Scottish civil procedure rules should follow the approach taken in E&W by setting out that an expert’s duty is to the court, in which duty overrides any obligation to the party who instructed and paid the expert witness. The SCJC is also considering the introduction of a code of practice for expert witnesses together with guidance as to the form of expert reports, which would bring Scotland further into line with English practice.

Are expert reports evidence? In E&W the presumption is that an expert will provide their evidence in a written report, which is taken as their evidence in chief. The report does not have to be spoken to by the expert in order to become evidence. However, parties can seek the permission of the court for the expert to also provide oral evidence at trial, and this is fairly common in high value and complex cases.

Joint Meetings and Joint Statements Courts in E&W generally have a greater case management role than the Scottish courts and may instruct experts to hold joint meetings for the purpose of clarifying and if possible narrowing the points on which they disagree. The court can instruct that a joint statement be submitted to the court following the joint meeting, in which the experts are to set out any matters upon which agreement was reached and what issues remain in dispute. Notably, this statement goes to the court and not to the instructing parties, which is reflective of the role of experts, which is to assist the court. In E&W, the court can also direct that evidence on a particular point be given by one joint expert.

In Scotland, by contrast, an expert report is not evidence in and of itself. The expert must appear at the proof (trial) to give oral evidence and could, at least in theory, provide evidence without reference to a report and without any report having been lodged in advance. Any report that is lodged in advance has the purpose of giving the court and other parties advance warning of what the expert’s evidence will be. In the 2006 personal injury case Legal Representative v Graeme John Douglas and Another, Lord Carloway noted that in Scotland expert reports do not “become the evidence in chief of the witness or otherwise ubstitute for oral testimony” and an expert “may give his testimony from the witness box without reference to his report at all. He may do so with reference to his report even although it may not have been formally lodged.” EXPERT WITNESS JOURNAL

In Scotland there is generally far less active case management by the courts and parties are generally left to decide for themselves what is appropriate in terms of expert reports, whether or not the experts ought to meet to discuss their views, and if it would be appropriate to instruct a joint report. However, in Commercial Actions the judge has similar powers to 67

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to other parties; they are purely for use by the solicitor in preparing their case.

those in E&W, and can order that expert reports be lodged and/or direct experts to meet “with a view to reaching agreement and identifying areas of disagreement, and may order them thereafter to produce a joint note, to be lodged in process by one of the parties, identifying areas of agreement and disagreement, and the basis of any disagreement.” The Commercial Court also has the power to itself appoint an expert on behalf of the court.

Precognitions may be provided to an expert for the purpose of laying out the factual hypothesis upon which they are being asked to comment, but there is no guarantee that the evidence the witness provides in court will match what they have said to the solicitor and noted in the precognition. Care must therefore be taken in instructing an expert on the basis of precognitions.

The SCJC considers that the power to require experts to confer in advance of the proof (trial), currently available to judges in Scotland’s Commercial Court, should be extended to all Scottish courts. If that is introduced it will bring Scotland closer to the procedure in E&W.

Beware Prescription For solicitors instructed in relation to negligence claims, including professional negligence, it should be noted that in Scotland the pursuer (claimant) should be in possession of a supportive expert report when the claim is raised. If the claim is raised in the Commercial Court the Pre-Action Protocol requires the disclosure of any expert report during pre-action correspondence. As the clock for prescription (limitation) only stops in Scotland on service of court papers on the defender (respondent) and Standstill Agreements are ineffective, it is important to keep in mind the need for an expert report in cases where time-bar may be an issue.

Hot Tubbing Hot tubbing, or the practice of expert witnesses giving evidence concurrently in response to questions posed by a judge, is a fairly common practice in E&W, whereas in Scotland it was not used until very recently. In 2015 in the case of SSE Generation Limited v Hochtief Solutions AG, a very complex construction dispute which ran in the Commercial Court of the Court of Session, Lord Woolman chaired a session of concurrent expert evidence in which six tunnelling experts gave evidence. Lord Woolman noted in his judgement that he had “found it an extremely valuable exercise” and one he would use again in future suitable cases. However, he noted that the exercise had been less successful in relation to questions of quantum than it had been in relation to liability. Hot tubbing has since been used in the Commercial Court in appropriate cases.

Conclusion Given the recommendations of the SCJC it may be that we will see a narrowing of the gap between the procedural rules in Scotland and E&W in terms of expert evidence when new civil procedure rules are brought into force. However, the proposals made by the SCJC are merely recommendations at this stage and have now to go through a consultation period. Whether or not the recommendations are adopted some key differences will remain.

The SCJC has proposed that the power to order experts to give concurrent evidence be provided in all cases, not only in the Commercial Court. Factual Evidence Provided to Experts In E&W, witnesses to fact provide their evidence in chief in the form of a formal witness statement which is lodged with the court and intimated to the other side. In Scotland, formal witness statements remain the exception, with oral or parole evidence from witnesses at proof (trial) remaining the norm and the default position. In Commercial Actions the judge can, and almost invariably does, allow for written witness statements from witnesses who are amenable to providing evidence in that form, but in ordinary actions all witness evidence is given orally at proof (trial).

About the author Barbara Bolton is a partner in Commercial Dispute Resolution and regularly provides cross-border advice through Shepherd & Wedderburn’s cross-border referral initiative, Scots Counsel: https://shepwedd.com/expertise/scots-counsel

There is no obligation on a witness to provide advance notice of their evidence, but for those who are willing to do so Scottish solicitors will ask them the questions that will be put to them in court and take a note of their responses; this note is referred to as a ‘Precognition’. Precognitions are informal witness statements, which are generally not signed by the witness and are not lodged with the court or disclosed EXPERT WITNESS JOURNAL

For a full Glossary of Scottish Litigation Terms see: https://shepwedd.com/sites/default/files/English_Scot tish_Litigation_Glossary_Scots_Counsel.pdf 68

AUTUMN 2017

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