The ‘Jackson reforms’ have now been implemented. Although primarily aimed at an overhaul of personal injury litigation, the reforms will have consequences for all commercial litigation. Despite the fact that expert evidence only plays a minor part in such litigation, a number of the changes will directly affect, and should benefit, professional expert witnesses.
One area is that of ‘disclosure’. Civil Procedure Rules [CPR] may have appeared clear when drafted, but disclosure appears to mean different things to different parties, including instructing solicitors. The rules to date have obliged parties to disclose documents which they rely upon. However, the difference in the number of documents expert witnesses receive, in what appear similar cases and circumstances, is often significant. Such wide variances have historically made accurate cost budgeting difficult. Costs have increased as a result of late disclosure of documentation, after reports have been served and often close to trial.
In the past, expert witnesses have not often been involved in the disclosure process and we are aware that some commentators suggest the system revisions are unnecessary and could potentially increase costs. However, we see it differently. Involving experts in the disclosure report process at an early stage should encourage disclosure of all the relevant documents; experts will be able to identify the documents they need to satisfy their obligations to the court, saving time by reviewing only the documents that are relevant to their area of expertise. That should lead to experts being able to more accurately quote on a fixed fee basis at the outset.
It is possible that there may be some slight increases of initial costs, but these should be mitigated by more accurate predictability of total costs and improved operational efficiency. We believe that all parties currently involved in litigation cases are not only scrutinising the reforms, but are also carrying out reviews of their own processes, often in conjunction with PI insurers. It remains to be seen whether the new rules improve the claims process or not, but we do believe from an expert witness perspective that it could help eliminate costs uncertainty and restrict some of the ‘fishing trip’ claims we have seen in the recent past.