The Impact of the Jackson Reforms on Medico-Legal
Evidence
Harriet Formby MA, BA (Hons)
Abstract
The recent Jackson reforms to costs in civil litigation have implications for the use of
medical experts in personal injury and clinical negligence matters. This is due to an
increasing need to justify the use of expert input, given the costs-management focus
of the reforms.
A study was conducted over the summer of 2013 where 25 firms of lawyers were
questioned on their use of experts and their experiences and predictions of the
impact of the Jackson reforms on the use of expert evidence. This was conducted
through a quantitative online questionnaire supplemented by a series of follow-up,
in-depth, qualitative interviews.
The findings of the study were that the reforms did have implications for the use of
experts. However, little change was anticipated in larger cases, for those experts who
adapt well to the changing market needs of lawyers, in response to the reforms
regarding case management and costs budgeting. It was recommended that medical
experts should increasingly demonstrate pro-activity, justification and accountability
concerning the emerging case costs budgeting and management requirements of the
reforms.
Overall the reforms appear to represent a changing landscape in the Personal Injury
and Clinical Negligence market where expert evidence is used, but there is
opportunity for forward thinking experts to adapt to meet the new order.
Keywords
Jackson reforms, expert evidence, medico-legal
Introduction
The study focused on the investigation of the implications of the recent Jackson
reforms on the use of quantum accountancy expert evidence in civil litigation. These
reforms, known as the ‘Jackson reforms’, come under the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (‘LASPO’), which came into force on 1 April 2013.
Justice (2013)1 outlines key changes through these reforms, which have implications
for civil litigation. These extend to legal-costs management, proportionality of costs,
abolishment of the no-win-no-fee structure, imposition of sanctions to encourage
early settlement and (relevant to this study) the use of expert evidence – as per Lord
Justice Jackson’s 2010 proposals for costs in civil litigation (Legal World News
2012:596).2
According to Lord Dyson, the Jackson reforms were designed to re-establish ‘equality
of arms’ between plaintiffs and defendants in personal injury cases, in order to
reduce illegitimate claims and improve defendants’ ability to defend claims
(Solicitors Journal 2013:3).3 The Jackson reforms were thus designed to transfer the
funding of civil litigation from defendants and their insurers over to claimants and
their lawyers. They were intended to improve access to justice and to make costs
Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 more proportionate (McIvor 2011:411–13).4 This was in response to the perception
that costs of civil litigation were disproportionately high (Crouch 2011:17–19).5
The reforms also tackle case efficiency. Steward and Pratt (2013:23–5)6 suggest the
reforms were designed to introduce a more robust approach to case management, in
response to perceptions that courts had become too tolerant of delays and noncompliance. There are now tougher sanctions for those who fail to comply with casemanagement directions.
The reforms were anticipated to result in a sea change to the funding, budgeting and
management of litigation, whereby parties now have to file detailed cost budgets
before trials begin and maintain an ongoing focus on proportionality of costs. The
reforms had a controversial passage into implementation and were greeted with
‘praise and opprobrium’ (McIvor 2011).7 During the three-month consultation on the
proposed reforms, the Ministry of Justice received 600 submissions, mostly in
disagreement with Jackson’s recommendations. Notwithstanding opposition,
government passed the Jackson reforms.
There had been increasing concern about expert witnesses, in practice, being partisan
to their clients. According to Lord Woolf (1996),8 this had increased because experts
tended to, initially, be instructed to advance the party’s case and then changed roles,
to provide evidence suitable for court, where it was then perceived that they may fail
to give an independent opinion. According to Solon (2011),9 Jackson LJ stated (at his
fourth lecture on the implementation of his Civil Litigation Costs Review) that where
the reforms were designed to impact on experts, in essence, this meant, ‘reports
should be small but perfectly formed and cost less’.
The Jackson reforms introduce new rules regarding the court’s power to restrict the
use of expert evidence and the costs involved (Expert Witness 2013).10 Table 1
outlines the new rules of the Jackson reforms that concern expert evidence, which
apply on applications for permission to rely on expert evidence made after 1 April
2013. Lord Dyson outlined that as part of the new commitment to proportionality
and the fair distribution of court resources, that in some classes of cases, courts may
reach decisions based on less evidence than they have had in the past and parties
could no longer expect ‘indulgence’ with failures to comply with procedural
obligations (Solicitors Journal 2013:3)11. Kennedys (2013)12 suggested an expert’s
failure to comply with the court timetable could result in the expert’s fees being
disallowed or worse, if there was a consequential delay elsewhere on the case.
Regarding experts’ thoughts on Jackson, Solon (2012)13 found that over a third of
expert witnesses believe the reforms proposed by Jackson LJ in his 2010 report
would lead to injustices (according to a survey of expert witnesses).
Table 1 Elements of Jackson affecting expert witnesses, Burn (2013:21–
2)14
Aspect of Jackson reforms CPR Part 35 Rule 35.4(2) Implication for expert evidence Changes designed to manage costs of expert evidence and to
‘better’ focus experts on the issues in dispute.
Requirement of an estimate of the costs of expert evidence.
2 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 Rule 35.4(3)
The court is now able to specify the issues to be covered by the
expert evidence and the type of expertise necessary.
Paragraphs 11.1–
11.4 of PD 35 The court can order experts from like disciplines to give evidence
concurrently rather than sequentially as part of ‘their’ party’s
evidence (a practice known as ‘hot-tubbing’). This first involves
the judge questioning the experts together about disagreements
in the joint statement and then by the parties’ advocates. Methods
The study was conducted following a pragmatic research philosophy underpinned by
an action research strategy. A mixed-research method was undertaken involving a
quantitative online questionnaire designed for solicitors, barristers and judges who
dealt with personal injury and clinical negligence cases, and a series of follow-up indepth qualitative interviews. The question design focused primarily on the use of
quantum accountancy experts, as a firm of forensic accountants had commissioned
the research; however, many of the study findings are applicable to other types of
experts also. In particular, at interview, many contributors discussed the reforms in
relation to use of medical experts.
Contributors
The study was conducted in August–September 2013 and had representation from 25
national and large regional firms of solicitors. Contributors were predominately at
partnership level and highly specialist. The majority (85%) identified themselves as
claimant solicitors, with 15% being defendant solicitors. 65% of contributors
identified themselves as having a primary area of interest in personal injury, and 35%
in clinical negligence. In addition, a number of barristers and a judge also completed
the survey.
Results
1. Changes to use of expert evidence since 1 April 2013
Most contributors had not noticed changes to the use of expert evidence since April
2013, as they were still dealing with cases that had been issued pre 1 April. It was
reported that solicitors issued an increased number of claims just before 1 April to
delay the effects of Jackson. The feeling was that the industry was in the ‘lull before
the storm’ and the question should be asked again in six months’ time. Of those that
had noticed changes, while they felt there was little uniformity, anecdotally, they
reported more instances of applications for use of expert witnesses being disallowed
by court, or their costs limited, and fewer applications for use of experts.
There appeared to be general uncertainty and confusion with interpreting the
practical implications of Jackson, with suggestions that, due to a lack of training,
judges appeared to be just as ignorant as practitioners regarding the implications of
the reforms. The odd court, however, was said to be sticking to the rules more
stringently. There was a perception that pre-Jackson, judgment had varied between
lenient and harsh with a tendency towards either claimant- or defendant-friendly
rulings, dependent on the court or location. But there was a feeling that, as long as
practitioners were prepared, solicitors would have the same arguments concerning
expert evidence after 1 April as before 1 April and perhaps the Jackson reforms would
result in a more consistent approach.
In general, the ‘horror stories’ seemed to be in the lower-value claims and there were
suggestions that if a solicitor was initially told they could not use a particular expert,
3 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 it would probably still be considered again at the next case-management conference
(CMC). For high-value work, it was anticipated that, as before, the use of experts
would be justified.
Frontloading of expert evidence
A number of contributors had observed an increase in the ‘frontloading’ of expert
evidence, whereby, due to difficulty with justifying the costs of experts at CMCs,
solicitors were increasingly instructing experts pre-issue. This was in the belief that if
they obtained the evidence before formal court proceedings were issued, it would be
harder for judges to subsequently disallow the evidence; although, the frontloading of
evidence was said to have been on the increase since the 1999 Woolf reforms. In
general, the rate of appointment of experts was expected to remain static for the
more complex cases. Some contributors commented that they felt there might be an
increase in use of experts in an advisory role, as opposed to as expert witnesses in the
future, although this was not expected to change significantly for larger cases.
Ability to fight excluded expert evidence
There was a perception that it was only a matter of time before lawyers would face
excluded expert evidence. Around 60% of respondents stated that if a court
determined that they could not use an expert witness, they would use a shadow
expert or expert adviser instead. For some contributors this was dependent on the
recoverability of shadow-expert fees, either via the client or defendant.
A number of contributors felt prepared to fight decisions to exclude expert evidence
by gathering more information to justify the use and asking again in the expectation
that there would always be an opportunity for a second bite of the cherry. However,
challenging disallowed evidence was perceived as risky by some, given the costs
associated with appealing. There were suggestions that it would take some ‘brave
souls’ to appeal decisions to disallow expert evidence through satellite litigation.
It appeared that for cases with ‘suites’ of experts, it was important for defendants to
demonstrate that they were not instructing experts to counter all of the claimant’s
experts. There was a perception the courts will be more receptive to defendants
instructing counter experts only on the most contentious issues. This should mean
that experts who deal with contentious issues in complex and high-value cases would
still be instructed.
Access-to-justice implications
80% of survey participants thought that there were, or maybe, access-to-justice
implications to the Jackson reforms. Of those who thought there were, this related to
concerns of reduced ambit of instructions and a perception that judges would be keen
to limit expert evidence where possible. There was a perception that the motives of
the reforms favoured the insurance industry and short-term government costcutting.
Those who thought there may be access-to-justice implications felt it was possible in
some cases, but that larger cases would escape implications. There was a worry that
sometimes the courts only see one end of it (i.e. fast-track or multi-track cases) and
some contributors hoped courts would not take an indiscriminate approach to
restricting evidence and cap expert fees for the sake of it, under ‘proportionality is
king’. There were also concerns that the effects of capped costs may be worse for
claimants than defendants. This is due to claimants needing to disclose all costs while
defendants can keep some hidden (and treat them as business costs) due to
disparities with the disclosure of recoverable costs.
4 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 There were suggestions that some of the potential access-to-justice implications were
on the increase pre-Jackson and had been a problem for a while. Contributors cited
major issues in fast-track personal injury whereby claimants were ‘processed’ rather
than ‘represented’. Some did agree that there had been a need to address
proportionality through the reforms, suggesting that lawyers had lost touch with
proportionality and there will now be a decrease in ‘frivolous’ claims.
Those contributors who felt there was no access-to-justice implications suggested
there were enough safeguards in place to ensure justice by appealing any decisions
regarding restrictions to use of expert evidence in the right case (such as through the
Court of Appeal).This was because they felt judges would be concerned if claimants
did not get ‘fair’ compensation. Also, there was the potential to use the expert as a
sub-contractor, thereby paying the expert to do the work in place of the solicitor.
Some contributors favoured the reforms, believing they would increase competition
and create stronger business models going forward, regarding fee structures for
experts and solicitors. A number of contributors mentioned justification for reforms,
given the high costs of litigated claims.
Also, there was discussion, primarily by defendant contributors, of a ‘whiplash
epidemic’ of fraudulent claims in lower-value cases, with the idea that insurance
premiums would now be reduced due to the reforms. It was felt that this would move
the claimant market more in line with the defendant market (lower value) where
there were ‘tighter’ costs. Also, there was a feeling that the proportionality focus of
Jackson would help stop cases drifting and costs building up, due to more proactive
case management.
2. Cost budgets and proportionality
The reforms introduced a requirement for cost budgets, which have tough penalties
for non-compliance, whereby claimants may only be able to recover court fees. This
means there is a need to be very careful, with cost budgets, to get them done on time
and allow contingency if anything out of the normal were to happen – as once the
budget was approved it was thought that it would be hard to change. Contributors felt
a need to approach cost budgets on a worst-case scenario basis (this means that they
are coming in very high) and anticipated that they would need to justify use of
experts more than before. Solicitors felt cost budgets would require a lot of
time/effort and they will use cost draftsmen to produce their cost budgets and to help
make the case for expert input. Some defendants said they would pay a premium for
what they perceive to be better-quality experts, if this would reduce damages overall.
This contrasts with the claimant side appearing to be more price sensitive, due to a
need for budget disclosure.
There were expectations that, going forward, experts need to become more proactive
about costs. A number of respondents predicted that increasingly experts’ costs
would need to be identified in advance, for budget requirements. Whereas in the
past, under an hourly rate basis, the assessment of experts’ costs tended to be dealt
with at the end of the process, costs will increasingly need to be estimated at the
beginning of the expert’s involvement and attention paid to the justification of such
costs. Of those few contributors who had already been required to submit cost
budgets on cases, some felt it had been a ‘filing exercise’, as they had received no
comment from the defendants or judge on their submission.
3. Timetabling
Almost 80% of survey respondents thought the Jackson reforms would influence
when experts were appointed. There were suggestions that it would become
increasingly more beneficial to involve an expert earlier on, at the costs-management
5 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 stage, given the need for cost budgeting. Though some felt that the reforms would
mean experts would be appointed later, as parties might be more inclined to wait to
first see whether courts granted permission for experts. Those who felt experts would
still be appointed at the same time as before, felt the reforms wouldn’t affect the
timing of the need for expert input, only the recoverability of associated costs. As a
result, they thought that the quantification of a claim would progress in the same
order as before, particularly if they were not formally appointed as an expert witness
at the outset but rather used as a sub-contractor.
In light of tough sanctions for non-compliance with cost budgeting and court
timetables, solicitors said they would be ‘smarter on timetabling’; some mentioned
that they would be doubling or tripling timing on cases to ensure they adhered to
court timetables. Some respondents said they were likely to stop using experts who
could not comply with stricter timetables. The problem was that good experts were
said to be in high demand with long waiting lists, so there was a fear that they would
not be able to rely on this evidence. It was suggested that a culture change was
needed for experts, regarding costs and report turnaround time. Already some good
experts were said to be reducing their workload to ensure they could comply with the
stricter timetabling requirements of Jackson; which was felt to be increasingly
reducing the ability of solicitors to instruct their preferred expert. There were
suggestions that there was no obvious source of the next generation of medical
experts.
4. Single joint experts (SJEs)
Most contributors felt that instructing SJEs was an impossible position, with 90% of
respondents stating they never or rarely used (quantum accountancy) SJEs. There
were concerns held of experts’ impartiality and fears of not being able to get
permission to instruct another expert if they were not happy with the SJE’s
interpretation. Others stated that SJEs only work in the ‘right case’, as often
privileged discussions were vital.
However, 50% of survey participants did think that using an SJE could be more cost
effective than using a separate party-appointed expert. This tended to be based on
both parties consequently agreeing on the SJE evidence. Though it was felt that it was
unlikely for both parties to agree on this, and if one party sought another point of
view, it would then become less cost effective. There was also anticipation that, in
many cases, parties would still use shadow experts (and incur the associated costs).
Also, some respondents did stress that while it may create savings, this could be at
strong risk of not providing the best service to clients.
67% of survey participants agreed that an increase in the use of SJEs was an intended
outcome of the Jackson reforms and several of these participants expected more SJEs
by court order. However, only 30% of survey participants said they were likely to
increase their use of SJEs. Instead, they would argue for sole instruction in the belief
that the size of their cases would justify a party-appointed expert. Thus, they would
‘shy away’ from any attempts to impose more SJEs, in some cases, by increasingly
‘frontloading’ expert evidence. Many contributors suspected and hoped that in larger
and more significant cases, judges would still take the view for separate experts, if the
solicitor had fully justified the use of the expert.
5. Solicitors’ confidence in working within Jackson
Almost 65% of contributors felt unprepared for, or unsure about, the Jackson
reforms, due to a lack of advance guidance on cost budgeting and the consequences
of technical breaches. There were feelings of uncertainty of how the courts would
behave and expectations of varied responses dependant on court/judge. Many
6 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 expressed concerns over a general lack of awareness in the industry, of the
implications of the rules in practice, based on the lack of practice directions. There
were perceptions that the reforms had been ‘rushed through’, so it was felt that until
the system was ‘embedded’ through satellite litigation (cases tested at the Court of
Appeal/Supreme Court), all would be ‘feeling their way’, particularly as cases were
running under two sets of rules (pre-Jackson and post-Jackson).
Those contributors that felt prepared for the reforms described having had a large
amount of training, webinars and discussions with colleagues over the implications.
They tended to be lawyers from larger/national firms who also had systems in place
to share data and intelligence and to work out, from their databases of historic cases,
what realistic costs should be over different case profiles.
6. Long-term perceptions
There was a universal perception that despite the seemingly far-reaching impact of
the Jackson reforms, practitioners would eventually revert back to old and
established practices, regardless of what the courts try to do – because ‘lawyers are
good at thinking ways round things they don’t like’. However, some respondents did
not feel this was a realistic view, as they felt there was more intent behind this
legislation than previous reforms. These respondents expected no relaxation of the
rules beyond iteration, so they emerged as something more workable. There was a
feeling that any changes as a consequence of the Jackson reforms were not
completely new, as many of the implications had been on the increase before April
2013.
Given the view that the implications of the Jackson reforms did not translate well in
to day-to-day practice, satellite litigation was seen as inevitable, due to the apparent
lack of guidelines on the implementation of the reforms at a practical level. With the
courts’ agenda to eliminate experts where possible, it does appear to be a changing
landscape for both lawyers and experts.
However, it was suggested that for high value, multi-track work there shouldn’t be a
particularly different situation, as long as lawyers justified the need for experts’ input,
and timetables and cost estimates were adhered to. There was however a view that it
was likely that ‘expensive’ expert’s fees could be increasingly capped, even in high
value cases.
Discussion
In literature, such as McIvor (2011)15 and Hyde (2011),16 there were suggestions that
the motives for the reforms favoured the insurance industry and short-term
government cost-cutting. This feeling was also strongly inferred by a number of
claimant contributors.
There was agreement among defendant contributors who favoured the reforms due
to their anticipated positive impact on competition (through the costs-management
and proportionality focus) and Bowman (2012)17 and Crouch (2011:17–19)18 where
costs were said to have been too high, particularly on the claimant side. These
contributors felt that the reforms would introduce a more robust approach to case
management, as per Steward and Pratt (2013:23–5)19 and make law firms run more
efficiently, as Regan (2013)20 had suggested.
Most contributors felt that courts were likely to enforce restricting use of expert
evidence. This fits with Lord Dyson’s suggestion that, post Jackson, courts may reach
decisions based on less evidence than they have in the past (Solicitors Journal
7 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 2013:3),21 although the research suggests this was not expected to be significantly so
for higher-value cases.
Regarding cost-budgeting requirements, on the whole contributors (both claimant
and defendant) had concerns about tough sanctions for failure to comply with costmanagement rules and budgeting requirements, as outlined by Robins (2012:18–
21)22 and Kennedys (2013),23 as well as the associated professional dangers,
highlighted by Cooper (2011).24 All contributors echoed concerns raised by Moore
Stephens (2013)25 over the feasibility of expert witnesses providing costs’ estimates
from the outset.
Contributors’ views regarding apprehension of using SJEs agreed with Pugh and
Pilgerstorfer (2005)26 and Solon (2012),27 which found that SJEs were only suitable
for rare, unusually demanding and small cases. Also, contributors mentioned
confusion over the implications of the reforms because judges did not seem to have
received comprehensive training; this agreed with Hyde’s (2013)28 criticism of any
such training judges had received on the reforms. Further, there was an observed lack
of practice directions, as discussed by Solon (2012:596).29.
Where contributors were optimistic, perceptions of the long-term impact of the
reforms echoed Robins (2012:18–21),30 suggesting legal firms would find a way to
secure their future, and Gibb (2013),31 expecting the personal injury industry to
restructure itself to accommodate the changes. The findings were also in line with
Master of the Rolls Lord Neuberger’s prediction that courts would be dealing with
satellite litigation in the coming year and proportionality law would need to be
developed on a case-by-case basis (Davidson 2012:6–11).32
Limitations
There are some limitations to this study to be taken into account when considering
the recommendations. First, this was a relatively small-scale study, involving only 25
firms. Additionally, due to access issues, the study was not fully representative of the
views of all stakeholders – barristers/judiciary, insurance industry, interest groups,
expert witness groups, etc.
It was also noted by contributors that they were still very early into the Jackson
reforms to be able to accurately determine much of the impact, based on experience.
So the findings, in this respect, were expressed more as contributors’ feelings,
opinions and related predictions, rather than on factual data based on actual
experiences of the Jackson reforms and related events.
Recommendations
There appear to be opportunities for experts to demonstrate to lawyers that they can
comply with the implications of the Jackson reforms, by becoming more pro-active
about costs at the start of a case; and by stressing the value they may add, in order to
assist with recoverability of fees, and by clearly showing efficiency and justification of
their costs. It will be hard to change cost budgets once they have been submitted, so
experts ought to increasingly present a realistic (and high enough for different
eventualities) estimate up front.
It is becoming increasingly important for experts to manage deadlines and review
systems in place to alert of case deadlines where there are a number of cases running
concurrently; also, to ensure that the instructing solicitor is adequately informed, on
a timely basis, of any issues that may result in a report being served late, to allow the
solicitor to act to avoid sanctions where possible. For medical experts, with a high
volume of medico-legal work, it may be necessary to decrease the number of cases
8 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800 taken on, to fit with stricter timetabling, without necessarily being able to increase
prices to compensate.
Regarding case-dealing and adherence to stricter timetabling, given the new
sanctions and professional risk for experts of not meeting court deadlines (Nugent
2013), it would be advisable for experts to update their ‘terms of reference’ with the
client to ensure they are ‘Jackson-proof’ regarding liability (if, for example, an
expert’s late report meant that such expert evidence was then struck out).
Conclusions
The key finding of the study was that the reforms did appear to represent a changing
landscape in the personal injury and clinical negligence market where expert
evidence is used, but that there was opportunity for forward-thinking experts to
adapt to meet the new order. The legal industry appeared to have been undergoing
much structural change in recent years and perhaps Jackson had formalised this and
will create the ‘disruption’ necessary to enable more powerful, positive changes.
Such market disruption would point to opportunities for medical experts to take
advantage of some of these changes and adapt their business models – concerning
timing, offering and pricing – to fit with lawyers’ emerging future needs for medical
experts. This is in order to demonstrate to lawyers that their preferred experts can
comply with the implications of Jackson.
For experts instructed on high-value, complex cases, there did not appear to be much
anticipated change, as long as the use of such experts was fully justified and court
timetabling adhered to.
Acknowledgements
The research project was kindly sponsored by Monahans Forensic Services,
Chartered Accountants who provide quantum accountancy expert services.
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18 Ibid. n 5. 19 Ibid. n 6.
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21 Ibid. n 3. 22 Robins J. Shifting landscape: the Jackson reforms coming into force in eight months’ time. Cilex
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23 Ibid. n 12.
24 Cooper P. Jones v Kaney: will it prove to be a curse on some expert witnesses? The Expert Witness
Institute Newsletter 2011:11–14.
25 Moore Stephens (2013). Moore Stephens (online). Available at
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27 Ibid. n 13.
28 Ibid. n 16. 29 Ibid. n 13.
30 Ibid. n 22. 31 Gibb F. The Jackson reforms – what will they mean. The Times 2013.
32 Ibid. n 29.
15 Ibid.
Contacts/correspondence
Harriet Formby
Email: [email protected]
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10 Journal of Observational Pain Medicine – Volume 1, Number 3 (2014) ISSN 2047-0800