Expert witnesses are calling for the Solicitors Regulation Authority to get involved when they clash with solicitors over matters including pressure to ‘improve’ an opinion. They also want instructing solicitors to be subject to a specific obligation to ensure their experts understand their duty to the court.
These are among the headline findings of this year’s Expert Witness Survey, produced by expert trainer Bond Solon in association with the Gazette.
Of some 537 experts canvassed, over 90% thought there should be a specific process for experts to notify the SRA of problems between experts and solicitors. ‘There is provision within the court rules for the expert to go to the judge in a matter, but the SRA could play a bigger part,’ the report says.
This year’s report comes amid renewed scrutiny of the reliability of evidence given by experts, in light of the Lucy Letby trial and the Post Office Inquiry.
Though the duty of the expert is to the court and not the paying party, so-called ‘hired guns’ who align with their paymasters remain ubiquitous. Over a third of survey respondents said they had come across an expert in the last year who fell into this category. One in five had encountered an expert who they felt was compromised by a conflict of interest.
‘Clearly, when exercising due diligence in the selection of an expert, solicitors must make sure that there are no conflicts of interest arising,’ the report counsels.
Experts overwhelmingly felt there should be stronger sanctions against solicitors who intentionally lead experts to breach their duty to the court. Regarding the call for a specific duty on solicitors to ensure instructed experts are aware of their obligations, the report stresses that this would need to be required by appropriate court and professional rules.
Experts quoted in the report also slammed solicitors for what one described as an ‘institutional refusal’ to follow agreed terms of engagement and pay up on time. ‘Some agencies and solicitors are poor payers,’ said another expert. ‘There should be a reporting system for this.’
On fees, nearly two-thirds of experts said they were charging the same rates as 12 months ago.
Commenting on the report, Bond Solon founder Mark Solon, who also chairs Wilmington Legal, said: ‘It may be time now for the SRA to introduce specific regulations to improve the professional relationship between experts and solicitors. It would also be helpful if the SRA provided specific regulations regarding solicitors exercising due diligence in the selection and instruction of experts.’
The report will be published tomorrow.
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