Jackson LJ backs Australian-style facilitators to control expert witness costs

Lord Justice Jackson has backed the use of 'facilitators' to control the cost of expert witnesses in complex civil litigation cases, such as construction or IT.

Speaking to the Bond Solon expert witness conference this morning, Lord Justice Jackson said that, in the Australian state of Victoria, parties used facilitators in complex cases to chair meetings of experts and produce joint reports.

He said experienced Australian practitioners had told him that appointing facilitators was 'beneficial and leads to substantial saving of costs' in complex cases.

'I do not suggest that English courts should ever compel parties to incur the cost of instructing a facilitator,' Jackson LJ said.

'However, in very heavy construction cases, IT cases or similar, where expert costs may run to six-figure sums or more, the parties may wish to consider this procedure as a possible mechanism for limiting expert evidence and controlling the total costs of the exercise.'

Jackson LJ said there were 'numerous cases where substantial sums have been wasted because the experts '“ in good faith and with the best of motives '“ have written lengthy reports which are largely irrelevant or inadmissible'.

In a separate development he called for a 'uniform calibration' of the software systems used for the assessment of general damages in personal injury cases and for a harmonisation in the format of medical reports so that their contents could be 'rapidly and efficiently' fed into computer systems.

Mark Solon, managing director of Bond Solon, said appointing a facilitator was a 'good idea' and might help avoid the 'excellent but reticent expert being dominated by the polished, but less knowledgeable expert'.

Solon said the appointment of a facilitator could give comfort to a solicitor that their expert would in some way be protected.

'If the facilitator levels the playing field and gets the experts to agree on issues not on dispute, it will be cost effective,' Solon said.

'What really costs the money is protracted preparation for trial and the trial itself.'