Open doors

As some areas of the personal injury profession move towards a process, volume-driven industry, are we guilty of looking the other way when considering how some expert witnesses are engaged and used, and does this cultivate a fertile ground for fraudulent claims?

Expert evidence should be the independent product of the expert and uninfluenced by the pressures of litigation (CPR 35). However, to what extent can the expert witness ever be entirely independent of the instructing party?

Concerns about the difficulty of maintaining independence were identified by Lord Woolf in his Access to Justice report (1996): 'Most of the problems with expert evidence arise because the expert is initially recruited as part of the team which investigates and advances a party's contentions and then has to change roles and seek to provide the independent expert evidence which the court is entitled to expect.'

Such concerns were addressed in the CPR, so as to impose on an expert an overriding duty to the court: CPR 35.3:

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

The rules '“ and accompanying practice direction '“ reflect the position that the expert is a professional and that most are, therefore, competent, honest and conscientious. However, in some areas of personal injury litigation the need to create a process in order to deal with volume and reduce the cost of such litigation has led to shortcuts and abuses that have assisted in the perpetration of fraudulent claims activity.

The 'panel' expert

Over the years, and on both sides of the personal injury divide, lawyers and insurers have become astute as to the expert witness who will be sympathetic to their cause or hold a certain view over matters within their field of expertise. Regular instruction from one side or the other can, and has, started to taint an expert in the eyes of the opponent, and, to some extent, the courts. While this is not a new phenomenon it should not be ignored, even in high-volume, low-value personal injury work.

However, with accident management companies (AMC) moving into the personal injury market, the entrepreneurial spirit has sought ways for revenue to be generated from all aspects of the claims process. Many AMCs (and some legal firms) have set up medico-legal companies, with medical experts being 'on the books' of such organisations. I have regularly seen medico-legal examinations being conducted in the 'consulting rooms' within the offices of the AMC involved in the claims. Without impugning the general integrity of experts receiving instructions through such organisations, this practice can raise question marks over impartiality.

The direct instruction of expert witnesses by AMCs is particularly evident in respect of engineering evidence. It is now commonplace to see an assessing engineer provide a report addressed to the AMC pursuant to their instruction. The same report is then relied upon by the claimant and their legal advisers in bringing the claim. The selection of the assessor/engineer has not been the subject of agreement between the parties and no CV has been offered to outline the expertise being deployed.

With such practice continuing unchecked, the prospect of abuse is real and evident. We have seen cases where the AMC and engineering company are owned by the same persons hiding behind different company vehicles. In the case of Adam v Lick (UK) Ltd [2007] (unreported) the judge found that the AMC proprietor regularly instructed his own engineering companies to prepare engineering reports. Simultaneously, the claims were referred to credit hire organisations on commercial arrangements where the AMC received enhanced referral fees for the longer period of hire. An obvious conflict of interest arises where the assessor has a direct financial interest in the claim.

Too casual?

Has the process become too casual, and, as a profession, are we finding some of our dealings with expert witnesses too familiar? There is a danger that by taking shortcuts the prospect of fraud is increased, but at the same time there is a risk that this creates a perception of fraud where it might not in reality exist.

Too often the expert is asked, and is willing, to alter their opinion to fit the claimant's own evidence. This issue came to the fore in Walker v Brown [2011], where the claimant disclosed a medical report that set out a five-month prognosis for recovery. Witness evidence was exchanged, where the claimant stated he had not recovered. Without any further examination by the expert, the report was altered to extend the prognosis for recovery but without any additional examination of the claimant. The date of the report was not changed. Was there deliberate collusion between the claimant and the expert to increase damages and defraud the defendant? Probably not '“ but unfortunately perception is powerful and a defendant or insurer cannot be blamed for becoming guarded.

Again, though, this brings the debate back to the point where lower standards of practice may ultimately allow for abuses to occur to the benefit of the dishonest claimant. An AMC or claimant, aware of the process, can look for expert opinion to be altered in order to fit a change in the version of events being presented to the other side and the court. A dishonest claimant will be malleable in the presentation of their claim so as to achieve the most advantageous outcome '“ whether this is the path of least resistance to the settlement of the claim or increased damages.

It is right that a claimant should be afforded the opportunity to review the expert's report for accuracy before disclosure. However, unilateral amendment of evidence by a party should be considered carefully and steps taken to ensure that a transparent and procedurally correct process is followed.

The danger of casual relations with experts also exists for defendants in claims where there may be concern as to potential fraud. To what extent are experts being instructed as part of the investigation 'team' and does the manner and content of the instruction lead an expert in a certain direction of opinion? This brings us back to the problems identified by Lord Woolf in 1996. All parties must be mindful of the fact that, pursuant to CPR 35.10(4), the instructions to an expert may not privileged from disclosure. Should this document be sought by the opposing party, any casualness in language or direction may be seized upon to undermine the content of the report and opinion on which a case is based.

Unobservable loss

What is the role of an expert in personal injury claims where there is no objective sign of injury to be assessed? As Mr Justice Coulson observed in Walton v Kirk [2009] in respect of fibromyalgia: 'It is controversial because its diagnosis depends almost entirely upon the sufferer's descriptions of their own pain and disability, which cannot be easily verified by objective signs of lesion or medical examination.'

Whiplash claims across the board sit within this observation. The difficulties are exacerbated in cases where the expert can only report in respect of a claimant who can only recall an injury from which a full recovery has already been made.

What value does an expert add to litigation for these losses, other than to record a view as to whether the reported injury is feasible? Can, and indeed should, the expert comment on credibility? An orthopaedic surgeon is not qualified in character assessment and this is rightly a matter for the court. To what extent does an expert become party to a claimant pursuing damages of subjective loss? And, finally, where evidence from a defendant challenges the claimant's credibility, what value, if any, does expert evidence have where it is predicated on the claimant's account alone?

Fit for purpose

Experts are a necessary and valuable part of litigation. How they are engaged and utilised can undermine this value and open doors to those less scrupulous.

With reforms being proposed by Lord Justice Jackson aimed at further reducing the cost of litigation, some thought needs to be given to the issue of how necessary evidence is gathered, so that corners are not cut further.