Courts rebel on paid evidence


By Jonathan Pearlman

September 6, 2004

The rise of professional experts and no-win, no-fee witnesses is clogging courts with biased evidence and has been condemned by judges.

Expert witnesses earn millions of dollars a year in NSW, with doctors, accountants and engineers charging up to $10,000 a day to give evidence.

The chief judge of the Supreme Court, Justice Jim Spigelman, told the Herald the court planned to clamp down on the unfettered use of experts whose evidence was "at the extremes of legitimate opinion".

"The cost of expert witnesses is the biggest single cost in litigation after legal fees," he said.

Thousands of experts are advertised in online directories and by universities. Experts claim to have specialties in up to 20 different areas.

Some are charging on a no-win, no-fee basis - a practice outlawed in the US because it led to exaggeration and lying.

Justice Spigelman said he had not known witnesses were charging on that basis until told by the Herald, but he was concerned it might taint an expert's duty to give unbiased evidence.

"Obviously there is a concern in this that the expert then has a vested financial interest in the success of the case and is then unlikely to be impartial," he said.

One company, Personal Injury Support, advertises economic loss reports and forensic accountant reports "for claims of all types" on a no-win, no-fee basis.

The company's director, John Malouf, said he did not believe this caused his evidence to be biased.

"I believe it's a service that is being offered and it is doing it with the correct ethical approach," he said.

Another company, Evidex, offers expert valuations for personal injury, family law and commercial claims on this basis, but adds a 25 per cent premium to its usual fees.

"I can see how concerns about conflict of interest arise but in practice it does not affect the reports," said the chief executive, David Watt.

While lawyers are allowed to charge on a no-win, no-fee basis, the Australian Law Reform Commission has said it may be illegal for witnesses. Most professional bodies have rules against it.

Experts used in court cases must agree to give unbiased evidence and admit when an issue falls outside their expertise.

But a personal injury and medical negligence barrister, Geoffrey Watson, SC, said many experts were full-time witnesses and earned more from giving evidence than working in their field of expertise.

He said the courts were infested with "shonky experts" and codes of conduct had not prevented them giving biased evidence.

"Everyone knows who they are and if you don't know who they are you can always talk to a colleague at the bar and find out."

A personal injury lawyer, Peter Simpson, said he had hired doctors who accepted fees on a no-win, no-fee basis, but stopped after complaints were made to the Legal Services Commissioner.

"I don't think there's anything unethical or illegal, but we have stopped doing it," he said.

But Mr Simpson said he still paid engineers and traffic experts in slip and fall and motor accident claims on that basis.

A barrister and author on expert evidence, Ian Freckelton, said no-win, no-fee charging was "professional suicide" and should be illegal.

"It means they have an investment in the result of the case, which is absolutely contrary to the obligations of an expert to be a neutral provider of information," he said.

The chief judge of the Land and Environment Court, Justice Peter McClellan, said the introduction of court-appointed experts earlier this year had helped halve the length of cases.

In July, Queensland became the first state to introduce rules allowing only court-appointed experts.

Justice Geoff Davies, of the Queensland Court of Appeal, told the Herald: "There are substantial savings in costs for litigants. You get more accurate facts presented and less biased opinions."