EWI's Advocacy Work
One of the key roles of the Expert Witness Institute is to ensure that policy, rule and regulatory changes are informed by the experience of our members and the needs of the expert witness community and the wider justice system. In this quarterly update, we discuss our work in this area over the last 3 months.
Civil Procedure Rule Committee
We attended the Civil Procedure Rule Committee (‘Committee’) open meeting in May and asked questions on the role of experts in the Committee’s processes, as a result we are meeting with the Chair of the Committee in October.
Access to Court Documents workstream
In June, the Committee temporarily paused work on its Access to Court Documents workstream to allow the Transparency and Open Justice Board to conduct the first phase of its work on its Key Objectives. The Committee provisionally allocated time in the autumn for the matter to return.
20 page report limit
We are monitoring the implications of the 20-page limits on reports for cases allocated to the Intermediate Track. We wrote to Premex outlining our concern about advice it is providing to experts that the limit should be applied as general best practice to reports for cases outside the Intermediate Track.
Transparency and Open Justice Board Stakeholder Committee
We participated in the first meeting of the Stakeholder Committee of the Transparency of Open Justice Board in August. We also accepted the offer from the Chair of the Board to provide an initial written view on matters the Board should consider in developing its key objectives.
Forensic Science Regulator
We met with the Forensic Science Regulator (‘FSR’) in September to discuss their guidance on expert reports and joint statements. We will be working with the FSR to ensure that the guidance is fully informed by the experience of our members and the needs of the expert witness community.
Health Care Professions Council
In August, we presented a session to the Fitness to Practice case managers at the Heath Care Professions Council (‘HCPC’) to help them fully understand the role and characteristics of expert witnesses and expert evidence. The nature of expert witness work requires a different approach from case managers and an understanding of the greater chance of vexatious complaints.
We had contacted the HCPC after concerns were raised with us about how the HCPC investigates complaints to their Fitness to Practice (‘FTP’) Investigation Process about expert witnesses, leading to the invitation to present to case managers and agreement with the HCPC that its guidance needed to more accurately reflect how it investigates expert witnesses. The HCPC also agreed to consider the types of documents which were suitable for investigations into complaints against expert witnesses.
Housing Condition Strategy Group
The EWI has accepted the vice chair of the Housing Condition Strategy Group which aims to improve the quality of expert evidence on housing condition and disrepair. We chaired the Group’s meeting on 18 July and are participating in the Group’s activities.
Expert Fees
We have written an article looking at the implications for expert witnesses of the recent judgment by Senior Costs Judge Gordon-Saker in CXR v Dome Holdings Ltd – HCJ (SCCO) which required the claimant to provide a breakdown of the fee note issued by the agency showing the separate fees for the expert and the agency. The article was published in the autumn 2024 edition of Expert Matters, and we will be seeking input from members.
The Ministry of Justice intends to consider this issue in its Fixed Recoverable Costs stocktake in early 2025, so we are keen to understand the views of members on any potential changes to inform our engagement with any future consultation process.
Legal Aid
Informed by discussions with members and legal professionals, we are intending to write to government stakeholders to draw their attention to the implications for expert witnesses and expert evidence of continued underfunding and other systematic problems with the legal aid system.
Things we’ll be looking out for over the next couple of months
Amendment to the Civil Procedure Rules
On 1 October 2024, the latest amendments to the Civil Procedure Rules will come into force. The full text of the amendments can be found at: The Civil Procedure (Amendment No. 3) Rules 2024.
The major change of interest to Expert Witnesses is the amendment to the overriding objective, with additional amendments to Parts 3, 28 and 44, to promote the use of alternative dispute resolution. This amendment follows a consultation by the Civil Procedure Rule Committee to implement the Court of Appeal Decision in Churchill v. Merthyr Tydfil CBC [2023] EWCA Civ 1416.
The Scottish Justice Council’s Ordinary Procedure Rules
In late 2023, the Scottish Justice Council (‘SJC’) held a targeted consultation to gather initial feedback on proposed new Ordinary Procedure Rules, which was the next step in progressing their comprehensive rewrite of the rules. The analysis of responses document was published in January 2024, with the SJC indicating that a series of further consultations will be needed to help shape the new rules. Look out for the next consultation later in 2024.
Transparency and Open Justice Board
The Transparency and Open Justice Board is due to publish its key objectives later this year. The purpose of the board is to lead and coordinate the promotion of transparency and open justice across the courts and tribunals of England & Wales.
The Civil Procedure Rule Committee has indicated that it will recommence its process on its proposed amendment to CPR rule 5.4C on ‘Access to Court Document’ once the board publishes its key objectives.
Ministry of Justice Fixed Recoverable Costs Stocktake
The Ministry of Justice will hold its Fixed Recoverable Costs Stocktake in early 2025. The Ministry has indicated that the Stocktake will include a consideration of whether parties should or should not be required to give a breakdown of fees and whether agency fees are recoverable, in principle, in FRC cases. The issue of the breakdown of fees was addressed in the recent judgment by Senior Costs Judge Gordon-Saker in CXR v Dome Holdings Ltd – HCJ (SCCO) which required the claimant to provide a breakdown of the fee note issued by the agency showing the separate fees for the expert and the agency.
As noted above, it will be important for the EWI to engage effectively with any potential consultative process on this issue.
Forensic Science Regulator guidance
Following its recent consultation on version 2 of the Forensic Science Code of Practice, the Forensic Science Regulator (‘FSR’) intends to update its guidance on expert evidence. The EWI is working with the FSR to help ensure that the proposals are informed by the experience of our members and the needs of the expert witness community.
Consultation on Court Bundles
The Family Procedure Rule Committee is consulting on a new draft Practice Direction 27A. Practice Direction 27A sets out universal practice in respect of court bundles in family proceedings in the High Court and the Family Court.
The deadline for responses is 21 October 2024, with the new PD27A coming into force by Spring 2025. The EWI may provide a response to the consultation and would welcome the views of members to help inform the response.
Getting in touch
We would welcome hearing the views of members on any of the issues discussed in this update at policy@ewi.org.uk.