EXPERT WITNESS

Greymouth Evening Star, 15 November 1934, Page 11

EXPERT WITNESS

BRITISH COURT INNOVATION. LONDON, October 1. In legal, medical, and other professional circles the Michaelmas Law Term, which opens this week, will be regarded with interest for the experience it gives of the new system of court experts, which came into operation at the end oj last term but has not yet had a chance of proving itself. It is generally agreed that the calling of expert witnesses by both sides to an action, which has been the practice for at least two centuries, gives rise to” partisanship. Judges have remarked on this for the last three generations—the late Mr Justice McCardle said bluntly, “An expert witness’s evidence depends on the side by which he is called.’’ In the United States this is openly recognised by the reminder which the judge gives in his summing-up that the expert witnesses are “briefed” by the parties. As an experiment the Lord Chancellor’s department, on the recommendation of the Rule Committee of the Supreme Court, has made it possible in civil cases without a jury—though if successful the innovation may well be extended to jury cases and to county courts —for the judge to appoint what is known as a court expert.

This expert will report to the judge on all the technical matters involved, and, if his report is accepted by both sides, much time, trouble, temper, and expense will be saved. Either party may still call its own expert witnesses, but unless the witness called gives evidence which materially assists the court his fee will not be allowed in costs, and presumably there will be nothing to prevent the judges from disregarding the parties’ witnesses and relying on the court expert. PROFESSIONAL CONCERN. Among lawyers there is a good deal of uneasiness about this reform. Many believe it will be impossible for a court expert to draw up a reliable report until he has heard what other experts have to. say, and that he must tend to usurp atn authority which belongs to the court alone. The view of the Rules Committee, who include eight judges, is, however, that the calling of several expert witnesses does not help the judge to come to a right decision, as the opinions in the majority of cases cancel themselves out,

There is concern among a considerable body of professional men—it is said that there are a thousand who earn a regular income by giving expert evidence—on the ground that there will be fewer fees to be earned. Not only doctors, but engineers, architects, valuers, surveyors, actuaries, and others are affected, and, although the change is confined at present to non-jury cases, these cases tend to be more numerous.

But to reduce the number of fees to be paid by litigants is one of the avowed objects of the Lord Chancellor’s department. Besides, it will be mostly those expert witnesses whose authority to speak is regarded as somewhat dubious who will suffer. The more reputable will be in demand as court experts, and it may be expedient later to form a panel of them, such as exists in France. All considerations are regarded as subservient to the paramount one of having one independent expert whose impartiality should in time remove the very general prejudice against the expert witness as evolved under the system which has now been modified.