As practitioners who work extensively as expert witnesses, we welcome the effort being made by Lord Justice Jackson in canvassing opinions on the costs of civil litigation from all interested parties, both in England and Wales and overseas.
We also welcome the opportunity to contribute to the debate and have several comments on what Lord Justice Jackson has to say about experts.
Firstly, our view is that the efficient use of appropriate experts is itself a factor that results in an overall saving of costs.
Jackson agrees, saying that he can recall cases where hours, or even days, of court time have been saved as a result of constructive discussion and agreement at expert meetings.
However, as Jackson notes, a failure to identify the correct issues can result in wasted costs.
Early involvement and agreement on the issues
By getting involved early in the dispute, experts can play a very valuable role in helping the parties to identify the issues, which can also lead to early settlement.
Our view is that the process of preparing an expert's report would be made more efficient if the issues on which both parties' experts are to report are agreed in advance, so that the experts do not prepare reports on matters that simply do not coincide.
Ensuring that the experts focus on the same issues is also facilitated when reports are exchanged sequentially, although the danger is that this leads to a tortuous sequence of supplementary reports as each expert wants to have the last word.
As far as experts' meetings are concerned, our experience is that these can help substantially to narrow the issues, particularly when both experts play by the rules.
We often engage in experts meetings by telephone or email and, although meeting in person can be beneficial, the approach to be adopted should be considered in the light of the respective costs and benefits.
The hot topic for us (apart, of course, from hot-tubbing/witness conferencing, which has a lot going for it) is the proposal that all quantum experts should be appointed on a single joint basis.
Apart from not understanding why quantum experts should be treated differently from other experts, we agree that this could be seen as a logical extension of the expert's duty to the Court.
However, in our view it is unlikely to save costs if the parties in large commercial cases appoint their own 'shadow experts', which they are more than likely to do.
As Jackson observes, there is criticism of the failure by judges to impose the use of single joint experts and we believe that this use of shadows may be part of the cause.
Surely it is important to find out why the current system is not being used before attempting to widen its scope.
Finally, in our view, perhaps the greatest contribution Lord Justice Jackson could make to making costs in civil litigation more manageable is to control disclosure. We believe strongly that this is an area of potential cost saving and this will be the subject of a separate article.