Now that Part 35 of the Civil Procedure Rules and the accompanying Practice Directions have been in operation for some years it is time to review how this system has worked in cases relating to animals. It is the premise of this piece that it has been a judicial disaster causing a complete failure to deliver justice to gravely-injured victims in a great many cases.
It was said that the object of the reforms was to promote access to justice and accountability of expert witnesses. The truth was of course that main object was to save money. Any other perceived benefits were entirely incidental in my opinion.
Whilst the intent of the Part 35 provisions is that the use of the Single Joint Expert is desirable when possible, it is certainly not compulsory. This fact seems to have been lost on many District Judges who think it is their role to coerce parties into accepting a SJE. Applications to instruct separate experts are met with furrowed eyebrows and thinly-veiled warnings about costs in the case. Advocates seeking the use of their own expert face an uphill battle from the start.
A very large percentage of cases involving experts are empirical in nature. Cases involving building, engineering, drunk driving, Special Damages calculations, and accountancy rely on the assembly of numerical data, calculations and the application of the laws of physics. “I canna change the laws of physics” As Scotty the ‘Star Trek’ engineer famously said. 2 + 2 equals 4 no matter which expert is doing the adding up. Calculations for water penetration, corrosion rates or ground movement are what they are, based on accepted principles which would produce broadly the same results by any competent expert. Note carefully my use of the words ‘broadly’ and ‘competent’!
Expert Evidence in animal cases is entirely different. A huge percentage of it is a matter of pure opinion based on masses of personal experience. Two independent experts of equal experience and qualifications can have a radically different view of what a horse could have been expected to do in any given circumstances. The thing is that both of them can be RIGHT! However, where only one expert is appointed, the court only gets to see one version, and has no opportunity to see that there may be a perfectly credible and acceptable alternative.
The first thing that has to be understood in any discussion about dealing with a horse is that a horse is a large mammal with a mind of its own. Whilst it is capable of independent thought, its cognitive processes are not great. A horse has about the same intelligence as a dog, although both horse and dog owners would disagree in favour of their particular choice. In addition to its cognitive processes a horse, like all lower order mammals, depends very much on its innate responses that are genetically programmed into it, and in large part beyond its control. The great majority of these innate responses are connected with its natural need to protect itself from predation, and with functions associated with food, societal position within its peer group in the herd, and reproduction.
These factors mean that a horse must always be treated with respect. Due to its size, weight and strength it is not possible to make a horse do anything, except of course by the use of drugs. One can only ask it in a manner to which it has become accustomed by training, handling and riding. It is necessary to have full awareness of its innate responses at all times, and accordingly one must constantly expect the unexpected from any horse or pony. The art and science of horsemanship is founded on these principles. The teaching of riding and horsemastership is in large part a process of teaching empathy with a horse. That takes time and effort to achieve. It is nothing like driving a car.
All of this may well be lost on a Judge who sees a Single Joint Expert, especially a SJE who, quite unknown to those instructing him, actually does not know what he talking about. Sadly the world is full of so-called ‘experts’ who are nothing of the sort, and if they are the only one in a case, no-one is ever going to know.
So, given that we have no alternative but to work with Part 35 let us look at what the relevant provisions actually say , and what can be presented to a District Judge to persuade them that parties should be allowed to call separate experts
(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only.
Note here that the word used is ‘may’, not ‘shall’. There is no case for assuming that there is any irrebuttable presumption in favour of the SJE in the rule. I would suggest that if the advocate presents any credible objection to a SJE, then parties own experts should be permitted. In animal cases, there is always a credible objection!
Whilst we accept that everyone has to start somewhere, it is a false economy to follow the commonly seen practice of sending inexperienced junior advocates to District Judge’s preliminary hearings in animal cases. You need someone who is going to stand their ground in the face of a District Judge who tries to intimidate them.
(2) Where the parties who wish to submit the evidence (‘the relevant parties’) cannot agree who should be the single joint expert, the court may –
(a) select the expert from a list prepared or identified by the relevant parties; or
(b) direct that the expert be selected in such other manner as the court may direct.
Here we come across a major problem, and probably the main reason for objecting to a SJE. What qualifications in veterinary science, or animal husbandry and behaviour does the average District Judge have to decide who is the best single expert to instruct? The answer will generally be ‘none’, and it is entirely probable that the expert that is needed will not be brought to the attention of the court. Why is that?
Well, in my personal experience the scenario usually goes like this. A solicitor approaches me and I confirm that I would accept instructions, giving an outline view on what I know thus far. Fortified by that view Solicitor applies to instruct me before the District Judge, and the opposition automatically objects. Why is that? It is generally because they know who I am, think it possible that I will support the view of those seeking to have me instructed and do not fancy the prospect of having to oppose my view. The opposition then suggests an expert. The solicitor objects knowing full well that the same applies in reverse. The hearing then degenerates into an argument and the District Judge tells the parties to go away and prepare an agreed list. The ‘Agreed List’ ends up containing no leading experts, and the District Judge selects the cheapest one, pretty much irrespective of what they know.
(1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, any relevant party may give instructions to the expert.
(2) When a party gives instructions to the expert that party must, at the same time, send a copy to the other relevant parties.
(3) The court may give directions about –
(a) The payment of the expert’s fees and expenses; and
(b) Any inspection, examination or experiments which the expert wishes to carry out.
(4) The court may, before an expert is instructed –
(a) Limit the amount that can be paid by way of fees and expenses to the expert; and
This probably takes the prize for the worst provision of the experts’ rules, and is as I have previously said, the main purpose of the rules anyway, saving money. This is completely contrary to any concept of decency and justice. What it does is ensures that a proper and thorough investigation is NOT carried out.
It does this by a non-specialist District Judge predicting in advance what the expert investigation is going to find. In reality a proper investigation takes as long as it takes! The expert does not know that in advance, because if they did, they would not need to conduct the investigation in the first place. If the DJ tries to go down this route it is worth pointing out that denying the experts’ requests for time and facilities to do their research is a fruitful ground for appeal.
Experience has taught that given the fact that Part 35 is not going away anytime soon, there are certain process rules for lawyers in animal cases. It is necessary to pick up the cudgels from the outset and object to SJE appointment for the very good reasons explained above. Animal cases are quite unique, and should not be treated like clinical negligence or motor accidents. Opposing experts may BOTH be correct. The role of the learned judge is to discern which evidence they prefer, and that is not a role they can fulfil by having a one expert.