Expert Witness Blog

As LASPO hits the fan, the experts get a little hot under the collar

Your Expert Witness blog logoThe Jackson reforms are about to bite. Recently the Master of the Rolls, Lord Dyson told the Law Society that the legal profession faces a period of 'unprecedented change' with the implementation of LASPO, the Legal Services Act (LSA) and changes to the civil procedure rules.

"Each of these reforms on their own would present a challenge to the courts and the legal profession," he is reported to have said, but taken together they constitute a "massive change".

"Each carries the risk that, rather than improving access to justice, they will weaken and undermine it."

Ominously, Lord Dyson is said to have warned that the reductions to legal aid will inevitably cause an increase in the number of litigants in person.

That came just days after the Vice President of the Court of Appeal, Lord Justice Kay, said: "It seems to me that, on any view, the fact that a litigant in person 'did not really understand' or 'did not appreciate' the procedural courses open to him for months does not entitle him to extra indulgence."

It seems to this lay observer that Lord Dyson's perceived risk is already coming to fruition. You can't get legal aid to pursue your case, but if you do it yourself you are expected to have the detailed knowledge the lawyers claim their education and subsequent training equip them with. If that were the case, surely we could dispense with lawyers altogether. Catch 22 or what?

For experts the reforms have already been coming into force, with new guidance on instructing experts published in August and Mr Justice Ryder's report into family justice preceding it by a matter of days.

More recently the issue of 'hot-tubbing' has come to the fore, together with the prospect of more joint instructions. The latter issue was raised by the former head of the NHS Litigation Authority, Steve Walker.

To read the comments it triggered, you would have thought he had advocated boiling experts in oil (a rather extreme form of hot-tubbing). Poor Mr Walker was lambasted for things he HADN'T said, such as an accusation he wanted to do away with independent evidence altogether. Of course, it was the whooshing sound of hackles rising at the prospect of the candy being taken away.

More steady heads pointed out that a similar system exists in many parts of Europe, including France, where the experts work for and are appointed by the courts and not the opposing sides.

One interesting point to occur to me cropped up many times in the comments on Lord Dyson's 'indulgence' judgement. It appears lawyers do not know what punctuation is for.

There is, it transpires, a real heart beating beneath the twinsets of Theresa May. She was generally applauded for blocking the extradition to the US of the so-called Pentagon Hacker Gary McKinnon on the grounds his human rights would be breached by his likely suicide. Mr McKinnon has Asperger's syndrome – a kind of autism. Ms May has proposed a 'forum bar' to rule on whether such extraditions should take place. Stand by for much grandstanding by pro- and anti-US groups, with the award of the Legal Personality of the Year title to Mr McKinnon's lawyer Karen Todner starting us off.

Chris Stokes