by Alec Samuels

Beverley Addison comments on a recent personal injury case which included an award of damages for the cost of future surrogacy arrangements to a patient who lost her fertility due to negligent NHS cancer treatment.

Dr Belinda Stuart-Moonlight provides an insight into litigation involving food safety

The Christmas festivities are over, and as the dark days of winter are stretching out ahead of us, GP Surgeries in the UK are expecting a surge in patients over the Winter months. The NHS is also bracing itself for one of the worst Flu outbreaks in its history. This is also not good news for employers, who may see their workforce hit by illness and unable to work or worse still, feigning a bug to get a day off work.

by Dr Andrew Hale & Dr Malgosia Kwilman-Klelund - Surrey Psychologists

by Hugh Koch,clinical Psychologist and visiting professor toStockholm University Law School. This is an extract from ‘Legal Mind’ published 2016

by Dr Imran Waheed FRCPsych “There were no real demons, no talking dogs, no satanic henchmen. I made it all up via my wild imagination so as to find some form of justification for my criminal acts against society” [“Son of Sam” serial killer David Berkowitz

This was funded by the Barrow Cadbury Trust and The Pilgrim Trust.

The Disabilities Trust, in collaboration with Royal Halloway, University of London, recently announced the results of the first study of its kind into brain injury in female offenders and how a support pathway can be put in place to manage the health, cognitive and behavioural issues which may impact on likelihood of reoffending.

by Alec Samuels

One might have thought that with the Rules, the Practice Direction and the Guidance, the professional institutes and the literature, that the path of the expert  called upon to prepare a report and to give evidence in court would be smooth. Unfortunately the problems and the challenges continue. The ethical and professional standards remain very high, to the credit of the experts generally. What then must the expert watch out for?

by Dr Kathryn Newns, Clinical Psychologist, Applied Psychology Solutions

The DSM 5 or ICD10 (or 11) are frequently used to establish whether the difficulties described by aclaimant meet the full criteria for a psychological disorder in a psychological assessment for civil litigation purposes.

by Professor Hugh Koch, Clinical Psychologist and Visiting Professor to BirminghamCity University

Dr David Mushati and Dr Ken McFadyen, Clinical Psychologists and Associates ofHK Associates. For Expert Witness Journal September 2019 Edition

The aim of this paper is to understand and learn from the cases reported in BAILII or West Law and associated sources how psychological thinking is relevant to the understanding and practice of law. It summarises the main points that have been addressed in “LegalMind Case and Commentary” a new publication published this autumn (Koch, 2019 (a)).

The rate of unfilled NHS consultant psychiatrist posts in England has doubled in the last six years, a survey by the Royal College of Psychiatrists shows.

Wearable devices offer exciting opportunities to longitudinally detect and track multi-modal stress and symptoms of disease in an objective and unobtrusive way

by Joanne Caffrey, Expert Witness & Specialist Training Provider Safer Custody, use of force and managing challenging behaviour in custody, education, care and mental health sectors 2012 British Excellence in Performance Winner 2018 Forensic & Expert Witness Award Winner – outstanding legal services to safer custody

Founded in 1969, Fraser and Fraser has unique experience in the fields of genealogy and international probate research, meaning the firm is particularly well equipped at finding missing beneficiaries to unclaimed estates.

by Georgina Squire, Partner. Head of the Dispute Resolution Group at RK

Background

The Asbestos Victims Support Groups Forum UK (‘the Forum’), applied to the Court, under CPR rule 5.4C, for access to all documents used at or disclosed for the trial where asbestos manufacturer Cape Intermediate Holdings (‘Cape’) was the Defendant. The Forum was not a party to either set of proceedings involving Cape which settled after trial but before judgment. The Forum’s application for access, including to the full trial bundle, was allowed by the Master at the first instance. Cape subsequently appealed.

The Court of Appeal allowed Cape’s appeal, limiting access to the Forum to statements of case held by the Court pursuant to CPR rule 5.4C and witness statements, expert reports and written submissions listed in the Appendix 1 of the Master’s Order. Pursuant to CPR rule 5.4C, a person who is not a party to proceedings may obtain from the Court copies of a statement of case and any judgments or orders made, and, if the Court gives permission, copies of any other document filed by a party or communication between the Court and a party.

Cape appealed to the Supreme Court, arguing that the Court of Appeal did not have jurisdiction to make the order it did, and that disclosure should have been limited only to the statements of case held on the Court file. The Forum cross appealed on the grounds that the Court of Appeal had been wrong to limit the scope of CPR rule 5.4C in the way it did, and that the Court should have made a wider order. The appeal concerns the scope of CPR rule 5.4C, and whether the Courts have the inherent jurisdiction to order access to documents for non-parties.

The Decision

The Supreme Court dismissed the appeal and crossappeal. The Court found that the Court of Appeal had the inherent jurisdiction to make the order it did, and also had jurisdiction to make a wider order if it were right to do so. The basis of making any wider order would be under the open justice principle, not CPR rule 5.4C. The orders for access already made by the Court of Appeal were upheld by the Court. However, the balance of the application was re-listed to determine whether the Court should require Cape to provide copies of any other documents placed before the Court and referred to in the trial to the Forum.

The constitutional principle of open justice applies to all Courts, which have the inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the Court. The question is how that inherent jurisdiction should be exercised in the particular case, meaning the extent of any access permitted by the Court’s rules should not be considered as determinative. Lady Hale delivering her judgment to the Court drew on the principles laid down in R (Guardian News and Media) v City of Westminster Magistrates’ Court to reaffirm the default position: ‘the public should be allowed access, not only to the parties’ submissions and arguments, but also to the documents which have been placed before the Court and referred to during the hearing.’ The default position should be that access should be permitted on the basis of the open justice principle, not CPR rule 5.4C. If the principle of open justice is not engaged, the Courts would be unlikely to grant access, unless there are strong grounds for the request in the interests of justice.

The Court found that, although it has the power to permit access, the applicant has no right for access to be granted (save in cases where the rules grant such a right). A non-party seeking access must explain why he seeks it and how granting access will advance the open justice principle. In short, it is for the party seeking to persuade the Court to allow access outside the usual rules to show good cause for doing so. The Courts would be likely to grant access if the open justice principle is engaged and the applicant has a legitimate interest in inspecting the documents. The Court found that when evaluating the grounds for access a fact-specific proportionality exercise should be carried out, where the purpose of the open justice principle, the potential value of the material in advancing that purpose and any risk of harm which access may cause to the legitimate interests of others, are central.

Commentary

The Court concluded that when exercising its discretion under CPR rule 5.4C or its inherent jurisdiction to permit access, it had to balance the non-party’s reasons for seeking disclosure against the party’s reasons for wanting to preserve confidentiality. Central to the Court’s fact-specific balancing exercise are the countervailing principles for denying access, including the protection of national security, privacy interests, trade secrets or commercial confidentiality. The practicalities and proportionalities of granting access will also be relevant, in cases where proceedings are over.

The Supreme Court’s decision sends a message to the bodies responsible for framing the Court rules to give consideration to the questions of principle and practice raised by this case. The Court confirmed that there can be no argument over the importance and universality of the principle of open justice. The principal purposes of the open justice principle are twofold: to hold Courts and Judges to account, and to enable the public to understand how the justice system works and why decisions are taken. It is worth noting that non-parties should not seek access unless they can show a good reason why it will advance the open justice principle, that there are no countervailing principles which may be stronger, and that granting the request will not be impracticable or disproportionate. The Court advises that it is highly desirable to make the application for access during the trial, because non-parties seeking access after proceedings are over may encounter difficulties particularly in terms of practicality and proportionality.

For further information, please contact

Georgina Squire at Rosling King

Leading City of London law firm, offering specialist legal expertise of the highest calibre to commercial clients, predominantly operating in the finance, real estate, construction and private equity sectors.

www.rkllp.com

Paul Grainger writes about client money rules and investigations the FCA carries out.

Paul Mitchell QC and Nigel Burroughs - July 2019

A critical part of any unfair prejudice petition is the valuation of the minority shareholding. Paul Mitchell QC and Nigel Burroughs of 4 New Square were counsel on different sides in Swain v Swains Plc, a case in which the expert share valuation evidence was taken concurrently. They look at the pros and cons of hot tubbing, and offer practical advice on how to approach the way experts should give their evidence.

 What is hot tubbing?

Hot tubbing, or the process of giving evidence concurrently, was formalised by the Jackson reforms in April 2013. Prior to the amendments to the Civil Procedure Rules in 2013, the process of experts giving evidence concurrently was managed on an ad hoc basis by agreement between the parties, their counsel and the judge. This typically happened in the construction cases where highly technical evidence was often required. In this article, we consider the use of hot tubbing to receive expert accountancy evidence regarding share valuations in unfair prejudice petitions pursuant to Section 994 of the Companies Act 2006.

The procedure for giving evidence concurrently is set out in paragraph 11 of the Practice Direction to CPR Part 35. If the court decides that it is appropriate for expert evidence to be given concurrently, it may direct that the parties agree an agenda based on the areas of disagreement identified in the experts’ joint statement. The trial judge will then lead the process by asking the experts, in turn, for their views on each agenda item. He may then ask follow up questions. It is a flexible procedure, and at any time the judge can ask another expert to comment on the other’s evidence, and even pose questions.

The judge will then invite the parties’ representatives to ask questions. This is not intended to be a cross-examination (or re-examination) of the witnesses, and the questions are to test an expert’s views and elicit clarification of it. The Practice Direction expressly provides that the representatives should not cover ground which has already been fully explored.

Once the parties’ representatives have completed their questioning, the judge will summarise the experts’ views on the issue, and ask them to confirm or correct his summary.

The first case after the formalisation of the process in which the evidence of valuation experts was heard concurrently was Swain v Swains Plc, a case which produced three judgments: [2015] EWHC 660 (Ch), [2015] EWHC 1183 (Ch) and [2015] EWHC 2585 (Ch) in which each author of this article represented one of the defendants. Some years prior to his unexpected death during a routine heart procedure in Thailand, Christopher Swain had distributed shares in his company Swains Plc to his daughters. His intention was to provide his children with an income in a tax-efficient way through dividend payments. However, he wished to retain a degree of control over the shares, and transferred them subject to option agreements granted in favour of the Swain Employers’ Trust under which the trustees could purchase the shares at a ‘fair value’ such value to be ‘determined by the auditors for the time being of the company acting as experts not arbitrators having regard to all the circumstances’.

The trustees of the trust were his long-standing accountant, Neil Kirby, and his solicitor, David Berry. Mr Kirby and Mr Berry were also appointed as executors of Mr Swain’s estate, and after his death made a distribution of the shares held by Mr Swain to his daughters. At the time, the estate was involved in proceedings against Mr Swain’s former solicitors, Mills & Reeve (which resulted in the well-known judgment in Swain Mason v Mills & Reeve [2011] EWCA Civ 14), and the executors were concerned about their ability to meet any costs order made against them in that litigation. They, therefore, distributed the shares to the children subject to further option agreements on similar terms.

In 2012 Mr Kirby and Mr Berry exercised the options over the shares at the same price they had agreed to accept from the purchaser from them. Three of Mr Swain’s daughters brought proceedings against Mr Kirby and Mr Berry for conspiracy. The claimants were successful in having the valuation of the auditors set aside, and the court had to determine the ‘fair value’ of the shares.

Although the valuation in Swain was not taking place within unfair prejudice proceedings, the court adopted the same approach as it would do in a claim pursuant to Section 994 of the Companies Act 2006.

The court was seeking to determine the fair value of the shares, and had to consider what discount, if any, should be applied to the shareholdings, and whether the sisters’ respective shareholdings should be aggregated for valuation purposes so that together they held a majority stake in the company.

Advantages for the parties of hot tubbing

In our view, there are two potential advantages for the parties in having expert evidence received in the hot tubbing format.

u First, the process can save appreciable amounts of court time.

u The agreed agenda continues the process of clarifying the issues remaining in dispute between the experts into the way in which those disputes are going to be explored in oral evidence at trial.

u Furthermore, the questions arising from the agenda come principally from a single source, the judge, and he or she asks open questions: there is less time spent on getting to the nub of the issues. Given the focus of the agenda on particular issues, the scope for general cross-examination going to credit is also cut down (although it is of course still possible). In the Swain’s case, receiving expert evidence from three experts via hot-tubbing saved at least two days of court time and probably more.

u Second, the open questioning format can really permit an expert to shine and gain the trust of the judge. The judge’s questions take the form of a seminar, with each expert answering the initial question sequentially, and then the judge seeking clarification from the experts as his or her understanding of the point develops. The really competent expert can give the court a great deal of assistance in a format such as this; and the format also gives the judge the opportunity to form a view of the credibility and reliability of the experts based on the way they handle nuances arising from the seminar format of questioning.

Disadvantages for the parties of hot tubbing

The principal disadvantages of the process are closely allied to the advantages we have identified above.

u In hot tubbing, counsel has far less control over the expert witness than in the traditional format; there is reduced scope for a flexible cross-examination (particularly as to credibility) that creates opportunities to undermine the expert’s evidence, because so much more of the questioning comes from the judge. The scope for the advocate to respond creatively to blunders made by an expert is reduced (although not entirely removed).

u Hot tubbing creates the opportunity for a variety of group think among the experts and the judge as they explore issues together. A bad expert with a bad point can adjust his or her views as he or she sees which way the judicial wind is blowing, preserving credibility generally which might, in the traditional format, have been badly damaged as a poor point was exposed. There is also probably an increased likelihood the judicial instinct to find a middle ground between extreme positions will be exacerbated by the hot tubbing method, as judges seek to persuade experts to coalesce around a sensible compromise view.

u Perhaps most significantly, you cannot talk to your expert about the other parties’ expert evidence as it is given. This inability to check points with one’s own expert before putting them to the opposing experts in the limited window for cross-examination means that advocates have to be confident that they have mastered the issues arising within the expert evidence before the hot tubbing itself commences.

When to start thinking about hot tubbing

It is best to start thinking about hot tubbing as early as possible in the litigation process, and should be something that is considered at the time of appointing an expert. The process of giving evidence concurrently is so different from the more normal situation where an expert is cross-examined that different considerations apply. It is a more consensual process, and it is vital that the expert is seen to participate fully with the procedure rather than stubbornly repeating the views set out in their report.

Having said that, it is also important that the expert should not fall into agreeing with the judge and the other experts. The process is designed to help build a consensus rather than testing opposing views by cross-examination. It can affect the evidence given by an expert who might be more willing to disagree with a party’s representative than the judge. In the more antagonistic atmosphere of a cross-examination, an expert is more likely to defend their position than if they are being asked to express their opinion by the judge.

Although consideration should be given to the possibility of hot tubbing when choosing an expert, no final decision can be able to be made until the expert evidence has been exchanged and a statement of issues on which they agree and disagree has been produced. It is at that stage that the areas of dispute can be identified and the nature and extent of the disagreement between the experts determined. Only then can an informed decision be made as to the appropriateness, or otherwise, of the experts giving their evidence concurrently.

Making an application for evidence to be heard by hot tubbing

An application for a direction that the experts give their evidence concurrently can be made at any stage of the proceedings. It is unlikely, however, that a judge will make such an order before the pre-trial review. Just as the parties will not be able to make a fully informed decision about hot tubbing until there has been a discussion between the experts and they have produced a joint statement of issues on which they agree and disagree, the Court will not be in a position to make a decision until it is in possession of all the facts.

Even at the pre-trial review, there will be a reluctance to bind the hands of the trial judge (unless they are hearing the PTR themselves). More often than not, the judge will only direct that the parties agree an agenda for the taking of evidence concurrently, and leave it to the trial judge to make the final decision.

The trial judge will, then, often be the one to make a decision on hot tubbing at the beginning of the trial itself. However, he can do so at any time, even whilst the trial is continuing. Prior to the amendments to the CPR it was possible for the parties to agree that some of the experts’ evidence should be given conventionally with them being cross-examined, and part of it concurrently: see Harrison v Shepherd Homes Ltd [2011] EWHC 1811 (TCC) at [26]. There seems no reason why the court could not adopt a similarly flexible approach now.

There is no need to make a formal application for evidence to be heard concurrently, and there will rarely be a need to file evidence in support of such an order. It will, however, be necessary to persuade the court that such a direction is appropriate and furthers the overriding objective. This is likely to be the case where the evidence is lengthy and technical, and there is a real prospect of saving court time.

In Swain the Claimants’ expert report ran to nearly 300 pages (including appendices), and if the experts were cross-examined, their evidence was estimated to take 3 days. On the basis that the experts’ evidence could be concluded in a day if they gave evidence concurrently, the trial judge made the direction.

Three points to take away about hot tubbing

From our experience in Swain, the take home points about hot tubbing are these.

u First, remember that hot tubbing is always a potential method by which your expert’s evidence is going to be received. When selecting an expert, bear in mind that he or she might have to give what is effectively evidence in chief to the judge. A good expert (i.e., one that is intelligent, expert, sensible and good natured) will have no difficulty with this; but the more peppery sort of expert could come badly unstuck.

u Second, if hot tubbing looks possible, be prepared to invest a lot of time into preparing the agenda for the session, seeking to help get the judge to the point where he or she appreciates the failings of the other side’s expert(s).

u Third, during the hot tubbing questioning itself, pay close attention to the way the evidence is emerging and how the judge’s understanding appears to be forming. The rather limited scope for cross-examination or re-examination of experts after judicial questioning on an agreed agenda – and the fact that you cannot check any points with your own experts – means that your questions must be extremely well thought-through in order to be effective.

Paul Mitchell QC and Nigel Burroughs 4 New Square, July 2019

© Paul Mitchell QC and Nigel Burroughs. The authors assume no responsibility to any party in respect of this article. Specific legal advice tailored to specific problems should always be obtained.

About the Authors

Paul Mitchell QC specialises in commercial litigation arising from the negligence of people holding themselves out as skilled (lawyers, accountants, fund managers, taxation advisers, company directors, etc); claims arising from earlier litigation (including in particular claims for malicious prosecution of earlier claims or seeking damages for abuse of process); claims involving jurisdictional issues; and in particular claims where the examination of expert witnesses is central to a client’s prospects of success. He has been highly ranked in the directories for many years in the field of professional liability claims, and regularly acts in disputes between family members regarding the management, control and ownership of private limited companies in various sectors.

Nigel Burroughs is an experienced commercial litigator, with particular expertise in company and insolvency matters. He has conducted contested share valuations before courts and expert arbitrators, often dealing with the impact of breaches of fiduciary duty and misfeasance on the valuation exercise. Nigel has been described in the directories as ‘great fun to work with, offers commercial and pragmatic advice’ and as someone who ‘can hold his own against QCs’.

(CPR Part 35 – Establishing Essential Report Foundations)

 I have been involved in producing reports for use in Court since the early 90s, either as Statements of Opinion or Civil Procedure Rules Part 35 Reports, primarily in the domestic sector. Enquiries for my services arrive, usually by email, either as a direct result of a Contractor or Home Owner searching the Internet, as a referral from one of the Industry Trade Associations or via a Third Party e.g. a Solicitors office or a Paralegal source.

by Martin Burns

There have been a number of recent court cases in landlord and tenant disputes, which have spotlighted failures by expert witnesses to apply themselves properly and follow the basic rules. Judicial criticism of land and property experts puts professional reputations at risk and may even prevent some people from taking on this interesting and remunerative work in the future

Practical Considerations by Michael Berrigan, Associate Director, Dubai, HKA

INTRODUCTION

Most standard form construction contracts contain provisions under which the employer can terminate the contractor’s employment for default. Default of the contractor can arise for several reasons. The events that entitle the employer to terminate should be clearly set out within the contract.

by Jasmine Murphy

Interim payment applications are often the battleground for pre-trial skirmishes, the warm-up before the main event. Recent cases have identified some successful arguments made by defendants in disputed IP applications and particularly the evidence needed by a defendant if they wish to successfully challenge an application

Dr David Adlam, Associate Professor and Interventional Cardiologist in the Department of Cardiovascular Sciences and Piyal Samara-Ratna, Mechanical Engineer in the Space Research Centre, have joined forces to combine medical and space research to develop a pump to help people with heart failure.

The new left ventricular assist device (LVAD) is an artificialheart pump used as an interim support measure for people with heart failure who are under consideration for a transplant and unlikely to otherwise survive the wait for a donor heart. In contrast to existing LVADs, the new device is smaller and safer to implant.

A key feature of the device is that fitting it doesn’t require major surgery - with a small ‘key-hole’ incision,it can be inserted through the chest wall. Another benefit is that it doesn’t sit inside the heart, reducing the risk of infection and blood clotting.

Developed by researchers at Leicester and funded by the British Heart Foundation, the technology has the potential to save and improve the quality of lives of patients worldwide. The project included contributors from across the University alongside colleagues at the University of Sheffield and Perspective Device Consulting Ltd.

Dr Adlam said: “Someone who’s had a severe heart attack, for example, can deteriorate rapidly with heart pump failure and often isn’t well enough to be transferred for open-heart surgery under a general anaesthetic. What we need is a device that can be implanted through the skin using techniques commonly used in most heart attack centres so it is available when and where it's needed. For patients who only need temporary support, it can also be easily taken out when the heart has had time to recover.

“The work we're doing is happening in parallel with simultaneous advances, such as those in battery technology. We’re seeing the development of smaller,lighter batteries that can potentially be re-charged across the skin.

“Even with current treatments, there are also many heart failure patients who still have symptoms that substantially reduce their quality of life. There’s a realunmet need for new technologies to help these patients.

”Dr Adlam started working on the new LVAD in 2013,when he first collaborated with the Leicester engineers led by Mr Samara-Ratna.

On the surprising links between space engineering and medicine, Mr Samara-Ratna said: “Landing a Mars rover is a challenge and putting something intot he heart is a challenge – you’ve got to create something that’s compact and can function in harsh environments and you need to be 100 per cent certain it will do its job when it arrives.

”Dr Adlam and Mr Samara-Ratna are looking to move the device to human testing in around two and a half years. It is hoped that, in future, the device could be used to help the large population of people in the UK living with heart failure as well as those who are newly diagnosed.

by Dr Ivan Ramos-GalvezLMS, FCA, FFPMRCA

Research published in October 2018 showed that 3.3% of mesh implants used for urinary incontinence caused complications requiring reversal operations. In this article,Dr Ivan Ramos-Galvez LMS, FRCA, FFPMRCA, Consultant in Pain Medicine and expert witness, discusses the history of the introduction of pelvic mesh treatment as a treatmentf or urinary incontinence and explores the reasons why complications occur and the pain conditions associated with these complications.

Urinary stress incontinence is a common problem that affects women of all ages, more commonly after childbirth. The cardinal symptom is leakage of urine when the bladder is submitted to any pressure. This may involve anything from a few drops of urine when running to catch the bus, to leakage on coughing,sneezing or laughing.

Traditionally the management was conservative involving physiotherapy to reinforce the pelvic floor muscles and life-style changes to reduce exposure to the triggers. Unfortunately, these treatments are not always effective and the symptoms can be embarrassing and have a significant and negative impact on daily life; as a result, surgical techniques were developed.

The surgical techniques to resolve the problem were safe, well tried and tested over time, and offered reasonably good outcomes. However, they were not always without complications, the most common being recurrent incontinence, as well as more general complications relating to potential tissue trauma and infection, as can be associated with any surgical procedure.

In the mid 1990s a new technique for the surgical treatment of urinary incontinence was developed. It involved a mono filament of polypropylene made into a mesh that could be inserted percutaneously under local anaesthetic. The concept was based on the theory that lifting the mid urethra up could offer the resistance required to stop passive leakage of urine.The technique had many perceived advantages:

• The mesh was inserted under local anaesthesia and therefore allowed an intra-procedure cough test to ensure that the incontinence had been successfully treated.

• It avoided the risks of a general anaesthetic.

• It was a quick procedure which could be carried out within a day (20 minutes operative time) because it was percutaneously inserted, with fast recovery to normal life afterwards.

These benefits expedited the regulatory process and the “kits” became widely distributed. Further kits became available and their sale was authorised based on their similarity to the original product, rather than pure efficacy and safety.

Guidelines for the management of stress incontinence evolved to incorporate the new mesh treatment and older surgical methods became obsolete.Technical skills relating to the previous, more invasive surgery were lost and a new generation of “meshsurgeons” were trained. The results were promising,offering curative rates of 85%, based on cough tests,change in weight of a sanitary pad over 24 h, urodynamicsand Visual Analogue Score of urinary symptoms(0=none and 100=unbearable). Overall,studies that now run to a 15 year history still reportt he same results, suggesting low risk of complications.

However, the technique involves a blind percutaneoustrans vaginal insertion of a trochar (a surgical instrument) directing it towards the iliac fossa in one side, ensuring it is positioned at the level of the mid urethra and then towards the iliac fossa on the otherside. A modification involves a change in direction towards the obturador foramen in a more horizontal trajectory. The pitfalls are that the insertion involves passage of a large trochar incorporating a foreign material through a non-sterile cavity into the deep tissues of the pelvic floor. Structures on the way include bladder, muscles, nerves and bowel. Bladder perforations are relatively common and cystoscopy is routinely carried out to ensure the placement of the mesh avoids the bladder. Overall in the short term there is a risk of infection of an implanted foreign material, bladder/bowel perforation and nerve trauma/damage.

The initial studies reviewing the outcomes never considered or reported the incidence of pain. They concentrated on the outcomes in urological symptoms and satisfaction with regards to incontinence.

Unfortunately, some women develop pain which can be very intrusive to their lives; often more so than the incontinence they were trying to treat. On reporting the pain to the surgeon, many women have felt dismissed, initially being advised it is as a result of the recent surgery and later, by underplaying it in comparison to curing the incontinence. Time has shown that meshes have been found to be coated in bacteria and when loaded with the weight of the abdominal organs transforms itself into a cutting thread, akin to the handle of a heavily loaded plasticbag

.Furthermore, the polypropylene material the mesh is constructed from has physical and chemical properties that change with time and temperature, akint o plastic containers used to reheat meals in a microwave. These changes include twisting, curling,contraction and even rupture of the mesh itself.In the short term, bladder infections that require prolonged courses of antibiotics, nerve damage and muscle dysfunction are seen. In the long term,antibiotic resistance, fistulae, chronic pain, mesh cutting into the vagina and bladder, dysfunction of the pelvic muscles, loss of sexual function, bladder incontinence, bowel incontinence, constipation,depression, anxiety, social withdrawal and isolation and a loss of confidence… are all reported symptoms.These late complications have been reported after years of successful results with no prior problems.

It is a complex problem that has a complex solution.The obvious one is removal of the mesh without any further harm being caused. Mesh removal is challenging, laborious and very skilled. Patient selection is key. Not all patients who experience complications from mesh insertion are suitable to have the mesh removed. When meshes have been removed, 100% of these meshes have shown histopathology in keeping with a graft versus host reaction that suggests activation of the immune system as mediator of a systemic inflammatory reaction.This may account for the patients who report symptoms associated with the onset of autoimmune diseases, widespread arthritis and even fibromyalgia following mesh surgery. The treatment for women facing this worrying and painful situation is a multidisciplinary approach comprising of self-help techniques, psychological help and above all feeling listened to and supported.

Monofilament of polypropylene is used in a mesh format for other procedures such as in the repair of prolapses and although not in the same numbers have, over time, given similar type of complications.

The final and most common use of mesh is a mesh hernia repair. Neuropathic pain is a common complication in hernia surgery and it can develop at any time from immediately post-operatively to years afterwards. The nerve pain these patients feel is often in the groin and low abdomen and testicles.Although severe, the overall symptoms are of a lesser level of impairment to the overall quality of life compared to the incontinence mesh.

Class Action suits against the manufacturers of the mesh kits in the US have seen significant claims for compensation and an increasing number of claims are being brought by women individually and asactions groups. A Consultant in Pain Medicine is well placed to assist with a medico legal claim of this type which often involves complex chronic pain and associated conditions such as fibromyalgia. Dr IvanRamos-Galvez, author of this article, has provided expert opinion on these cases. He is a well-established pain expert, specialising in the diagnosis and treatment of complex pain conditions. He is well regarded as an expert witnesss in cases involving fibromyalgia and other pain conditions.

Please call us on 020 7118 0650 or email This email address is being protected from spambots. You need JavaScript enabled to view it.

The evidentiary value of private expert opinions with a focus on medical malpractice cases. Clarification by the Swiss Federal Supreme Court,by Thomas Gelzer, Yvonne Pieles

In civil law litigation, private or party expert opinions In civil law litigation, private or party expert opinions are repeatedly submitted by the parties in the expectation that they are considered as evidence. The Swiss Federal Supreme Court (BGer) has recently (BGer4A_9/2018 of 31 October 2018) dealt with this question and confirmed that an expert opinion commissioned by a party does not have the quality and procedural value of a judicial expert opinion and does not have its evidentiary value. In fact, private expert opinions are on a par with mere party assertions.

There are lessons for expert witnesses in a number of recent court decisions, writes Paul Sankey Clinical Negligence Partner, Enable Law and Trainer at the Inspire MediLawExpert Witness Training for medical professionals.

by Heather Beckett, Barrister - Goldsmith Chambers

Once a case gets to court, a barrister needs to present their client’s case in the most favourable light. In many instances, that will involve deploying expert witness evidence. Long before that, during the life of the case, in assessing prospects, the legal team will have (hopefully) considered the strength of that expert evidence, in light of the evidence as a whole.

by James Brown, Partner, Haynes and Boone CDG, LLP

Recent news reports will have highlighted for many commercial parties the existence of the litigation funding industry. In the past five years it has grown into a multibillion dollar industry and the number o fentrants into this investing arena has multipliedexponentially. It is global in scope, and multi jurisdictional,though its presence is most pronounced in the United Kingdom and United States.

by Sadia Hussain, BSc (Hons) Speech and Language Therapy

Claimants diagnosed with brain injuries, without physical disability and who retain subtle cognitive communication difficulties are commonly referred to as the walking wounded’. They present with understated communication difficulties, which are barely noticeable in general conversation but which become heightened in structured communication tasks.These tend to surface when a claimant is confronted with clerical, administrative and managerial functionsat work. Or, in their personal life, where socialising with friends and family becomes a struggle, rendering them to the risk of social isolation. As a Speech and Language Therapy (SLT) expert witness, I readily come across cases where a claimant’s inconspicuousc ommunication deficits cause permanent disruptions in their working life. In this article, I wil lshare three cases to highlight the communication challenges facing the ‘walking wounded’:

A nine-person Los Angeles jury has found that Katy Perry’s 2013 song Dark Horse infringes the copyright in Marcus Gray a.k.a Flame’s 2009 song Joyful Noise. The copyright infringement claim concerned the beat and opening instrumental riff of Flame’s Joyful Noise.

“We saw it as a perk of the job; we were merely stealing from the dead”. This was fromone of the ‘Cols Rouges’, the society of auction house porters at Hotel Drouot, the principal Paris art and antique auctioneers, on trial in March 2016. The ‘cols rouges’soubriquet came from the red trim on the collars of the porters’ black uniforms, which they wore with white gloves. He was accused, along with 42 of his fellows and 6 auctioneers, of systematically stealing thousand of items worth millions of euros, most from deceased estates where detailed inventories did not exist – the pieces disappeared at the time that the houses were being cleared. If the non-appearance of an item at the auction rooms was queried, it miraculously re-appeared.

Low speed impacts tend to be those which occur Low speed impacts tend to be those which occur under 16 kmh (10mph). There is often very little damage, if any, caused to either a Plaintiff ’s or Defendant’s vehicle. The most common type of low speed impact claim is where a Plaintiff ’s vehicle has been struck in the rear and the most common type of alleged injury is neck injuries (whiplash). From the Defendant’s perspective, if there is no doubt that an accident occurred as alleged, the most common defenceis that the accident/collision occurred at such a slow speed that no injury could have occurred (aminimal impact defence). Such claims would fall into the category of opportunistic or exaggerated.

by Mark Solon - 10 September 2019

This year saw the collapse of a multi-million-pound fraud trial at Southwark Crown Court due to the appointment of a witness patently unqualified for the role. So how could this happen? Andrew Ager, who was posing as a carbon credit expert, was clearly “not an expert of suitable calibre”, in the words of the judge, Nicholas Loraine-Smith. “He had little or no understanding of the duties of an expert. He had received no training and attended no courses. He has no academic qualifications. His work has never been peer-reviewed”, the judge said.

Monash University researchers along with industry partner Haemokinesis, have developed the world’s first blood incubator using laser technology.

• This technology can slash blood incubation time to just 40 seconds, compared to the current industry gold standard of five minutes.

• The study shows that laser incubation can improve pre-transfusion testing for millions of patients undergoing blood transfusions across the world, including those having majo rsurgery, women in labour or casualties of mass trauma

No one factor – such as testosterone levels – is responsible for athletic ability, No one factor – such as testosterone levels – is responsible for athletic ability,by sport scientist Dr Alun Williams - Reader in Sport and Exercise Genomics

by Alec Samuels

An expert has been sent to prison for giving false evidenceto the court. The case offers a salutary lessonLiverpool Victoria Insurance Co Ltd v Zafar [2019]EWCA Civ 392.

A Question and Answer with CaseLines

A Question and Answer with CaseLines CaseLines is the world’s most comprehensive digital evidence management solution for national andlocal governments, and courts. Our platform allows legal teams to efficiently and securely prepare,collate, redact, share and present evidence/legal bundles, documentary and video evidence in a single system. Prosecutors, lawyers, barristers and judges in civil and public law cases use CaseLines globally,including in England, Wales, Kenya, Dubai and Abu Dhabi. The platform holds over 300,00cases and over 100 million pages of evidence and we are now looking to gain a market presence in North America.

A drug with three active ingredients that are released in sequence at specific times: Thanks to the work of a team at the Technical University of Munich (TUM), what was once a pharmacologist’s dream is now much closer to reality. With a combination of hydrogels and artificial DNA, nanoparticles can be released in sequence under conditions similar to those in the human body.

An expert has been sent to prison for giving false evidence to the court. The case offers a salutary lesson Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392.

ThisarticleisproducedbyCMSHolbornAsia,a Formal Law Alliance between CMS Singapore and Holborn Law LLC.

At the moment the political and legal commentators in the UK are fixated on Brexit. Andnowonder.Inonlya few weeks the UK could see the biggest political and legal in generations. In the midst of that change, many have questioned the future role for Lon- don as a hub for international disputes.

by Professor Hugh Koch, Clinical Psychologist and Visiting Professorby Professor Hugh Koch, Clinical Psychologist and Visiting Professorto Birmingham City University

The UK, along with other EU member states has until January 2020 to implement the 5th Money Laundering Directive (5MLD).

Provided the UK is either within the EU or is within and agreed transitional period it will be required to implement the Directive.

If the UK has left then it may not be obliged to implement the Directive but will be under considerable pressure to do so.

by Dr. Hassan Elhais

The pith of criminal law depends on two elements Actus Reus and Mens Rea derived from the legal maxim "actus non facit reum nisi mens sit rea" which means no act is punishable without a guilty mind.

by Dr Georgina Hibbert, Clinical Psychologist. BSc Hons, DClinPsy

by Pradeep Nair, Associate, Singapore, Wei Ming Tan, Senior Associate, Singapore and Lakshanthi Fernando, Managing Director, Singapore.

ThisarticleisproducedbyCMSHolbornAsia,a Formal Law Alliance between CMS Singapore and Holborn Law LLC.

by Rachel Feldman, Art Law & More

The buyer of a Nazi-looted painting claims Christie’s auction house did not research the work’s provenance thoroughly enough before it sold it to him.

French art dealer, Alain Dreyfus, argues that if the auction house had dug deeper into the archives it would have discovered that Alfred Sisley’s ‘Premier jour de printemps à Moret’ (‘First Day of Spring in Moret’ 1889) had belonged to a Jewish collector in Paris. Alfred Lindon, né Lindonbaum, hid the paint- ing in a Chase Bank safe and fled Paris when Hitler invaded in 1940.

According to art recovery company, Mondex Corporation, the work was confiscated by the Nazis and stored at the Jeu de Paume. At one stage, it found its way into the private collection of Nazi official Hermann Goering.

Dreyfus, who has a gallery in Basel, bought the Sisley from Christie’s New York in 2008 for US$338,500 (£253,089). At the time, there was no indication from the auction house that the painting was spoliated. In light of Mondex Corporation’s investigation, Dreyfus is suing Christie’s for a refund of the purchase price together with 8% interest.

Mondex argues that if the auction house consulted a directory of looted items published in France in 1947 it would have discovered that ‘First Day of Spring’ was among several paintings by Sisley stolen by the Nazis. Christie’s maintains it performed all reasonable checks on the artwork and that only four lost art databases were available and routinely investigated prior to the sale of the Sisley in 2008. One of the databases used by Mondex did not become digitally available until approximately two years after the auction. Christie’s also reiterated its commitment to identifying stolen artworks.

Lindon’s heirs agree with Dreyfus that Christie’s did not sufficiently research the painting’s provenance prior to the sale. They are negotiating the return of the painting with Dreyfus. Whether or not Dreyfus will secure his refund from Christie’s after launching legal proceedings remains to be seen but he is deter- mined. “With Christie’s, it’s war,” he vowed.

Head of Mondex, James Palmer, warned art buyers to learn from the Dreyfus case and insist auction houses indemnify them against purchasing works, which might form the subject of future ownership claims. “This would likely encourage auction houses to be far more accountable and therefore to stop selling stolen art”, Palmer explained.

This article was originally written by Rachel Feldman for Art Law & More, a dedicated art law blog by Boodle Hatfield LLP.

Many thanks for permission to reprint.

An injunction can be sought from the Court before or after proceedings have been commenced to either stop a company or person from doing something (a prohibitory injunction) or to make a company or person do something (a mandatory injunction). Where the application is urgent, or where giving notice may defeat the purpose of the application, for example assets might be dissipated, the application can be made (and heard) without giving notice of it to the party being injuncted.

A Question and Answer with CaseLines CaseLines is the world’s most comprehensive digital evidence management solution for national and local governments, and courts. Our platform allows legal teams to efficiently and securely prepare, collate, redact, share and present evidence/legal bundles, documentary and video evidence in a single system. Prosecutors, lawyers, barristers and judges in civil and public law cases use CaseLines globally, including in England, Wales, Kenya, Dubai and Abu Dhabi. The platform holds over 300,00 cases and over 100 million pages of evidence and we are now looking to gain a market presence in North America.

Clyde & Co are pleased to report the successful defence of a claim after a site supervisor sustained a serious arm injury following an alleged accident at work.

by Andrew Weston, Fenwick Elliott LLP

The Court of Appeal has recently considered two appeals in which the interplay between the construction adjudication process and the insolvency regime was considered; Bresco Electrical Services Limited (in liquidation) v Michael J Lonsdale (Electrical) Limited (see my blog of 28 September 2018 on the TCC decision) and Cannon Corporate Limited v Primus Build Limited.

Imagine a divorce hearing, both parties aged 60, where the following judgment is given: “After dividing the assets appropriately, as I have determined, I find that Mrs X should receive an annual income of £50,000 per annum, after tax, (and after her state pension is taken into account) from Mr X for the remainder of her lifetime. In order to achieve a clean break, I propose to replace this by ordering a capital sum.

On 29th April 2019, the High Court of Justice for Northern Ireland issued a “game changing” Practice Direction, which affects all those who wish to act as expert witnesses in commercial proceedings

Disputes between landlords and tenants happen often, though many are unnecessary and avoidable. By Martin Burns

Giles Eyre & Dr Linda Monaci provide practical insight into assessing a testator’s capacity after their death

Expert witness: “A person whose level of specialized knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.” (Oxford English Dictionary).

Hugh Koch, Clinical Psychologist and Visiting Professor in L aw and Psychology to Birmingham City University Nkem Adeleye, L ecturer in Tort Law (BCU) Jon Willows and Chris Harrop, both clinical psychologists with Hugh Koch Associates

GWP Consultants

LLP Senior staff at GWP Consultants LLP (GWP) have been appointed as expert advisors and expert witnesses in cases involving mining, geological, geotechnical, mineral resource and hydrogeological issues for over 30 years. Senior members of staff are frequently called upon to provide expert opinion in technically challenging cases in civil and criminal courts, arbitrations, mediations and planning inquiries.

by Serena Nathaniel-James, Cognitive Behaviour Therapist & Psychologist 

by Koch H, Cosway R, De Haro L & Kon T

by Professor Paul Tipton

Dr Nigel Kellow MB BS FRCA MBA - Consultant in Pain Medicine

by Rosalind English

Meadows v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment

Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?

Any medical practitioner can make a genuine mistake and find themselves facing a medical negligence claim. In the vast majority of cases these are one-off events. However, there are some surgeons who have an unenviable track record of legal claims against them. In this short case study of a client who underwent a rhinoplasty procedure the cosmetic surgeon in the firing line was someone I had already successfully sued three times previously.

by Dr. Rebekah Wood – Outreach Education Project Manager for the National Justice Museum.

by Dr Dirk Voorhoof of the Human Rights Centre at the Faculty of Law and Criminology at Ghent University addresses a recent European court judgment.

by Kelly Cronin at Zenith Chambers

Medico-Legal and Insurance Services market top £700 million

by Kelvin Farmaner, Trethowans Solicitors

by Simon Stanfield, Chair, Motor Accident Solicitors Society (MASS)

by Matt Currie

The date of the UK leaving the EU is edging ever nearer, with Prime Minister Theresa May invoking Article 50 of the Lisbon Treaty on March 29th 2017 — meaning that the UK is now on a schedule to step away from the economic and political partnership on March 29th 2019

The Rt Hon. Lord Keen of Elie QC keynote address from the MedCo conference January18th 2018

The law concerning consent to medical treatment changed in 2015 with the Supreme Court ruling in Montgomery v Lanarkshire Health Board. So what is the medical expert's role now in giving evidence issues of consent? 

by Paul Sankey - Partner and Clinical Negligence solicitor acting for patients, an accredited expert in his field.

Clinical negligence cases normally turn on expert evidence. The key issues are usually medical matters: whether care fell below a reasonable standard and, if so, whether it caused harm. These are often complex issues addressed by experts

by Hazel Puckering , Levi Solicitors LLP

by Alison Somek, Expert Witness and CEO, Somek & Associates Alison Somek continues to act as an expert witness as well as running Somek & Associates – a Medico-Legal consultancy with over 200 expert witnesses, including Occupational Therapists, Nurses, Midwives & Physiotherapists. She is currently on the membership committee of EWI. This article is based on a presentation at the Bond Solon Annual Conference in November 2017. Many thanks to Alison Somek for kind permission to re-print. The author wishes to point out that the following is based upon her personal experience as an expert witness and CEO of a company providing expert witness services. Alison is not a lawyer or an accountant and advises readers to take professional advice on any relevant matter

by Emma Hynes, Barrister, Hardwicke

by Carl Islam, Barrister TEP, 1 Essex Court (www.ihtbar.com) and Dr Hugh Series DM, FRCPsych, LLM, MB, BS, MA. Consultant old age psychiatrist, Oxford Health NHS Foundation Trust; Member, Faculty of Law, University of Oxford; Member, First tier tribunal (mental health) (www.hughseries.co.uk).

by Rachel Lidgate, Partner, Dispute Resolution Division, London Herbert Smith Freehills LLP

by Dr Thomas Walford, Expert Evidence

The High Court has clarified in a recent judgment the criteria which must be satisfied in order to sustain a claim of litigation privilege. The judgment makes clear that a party claiming privilege must provide all material necessary to enable the court to assess whether litigation was the dominant purpose of the document. The judgment also indicates that the court will take a nuanced approach to a privilege claim, and may order discovery of documents attached or annexed to a document which has been found to be privileged.

Hugh Koch, Clinical Psychologist and Visiting Professor in Law & Psychology to Birmingham City University

The knowledge of your medical expert will be critical to your personal injury or medical negligence case, however the value of a well-written and well-structured medico legal expert witness report shouldn’t be underestimated. A good report could be instrumental to the outcome of a case.

by Gordon Miles FRCEM (Hon) MBA and Dr Simon Howes

A newly developed rapid imaging protocol quickly and cheaply diagnosed heart ailments in patients in Peru, according to new research in Journal of the American Heart Association (http://jaha.ahajournals.org/), the Open Access Journal of the American Heart Association/American Stroke Association.

by John MacKenzie

The Shorter and Flexible Trial Procedures were introduced with the express intention of allowing “dispute resolution on a commercial timescale”. The procedures were introduced after pilot schemes. At the time it was said that:

“The aim of both pilot schemes is to achieve shorter and earlier trials for business related litigation, at a reasonable and proportionate cost. The procedures should also help to foster a change in litigation culture, which involves recognition that comprehensive disclosure and a full, oral trial on all issues is often not necessary for justice to be achieved. That recognition will in turn lead to significant savings in the time and costs of litigation.”

At the moment the political and legal commentators in the UK are fixated on Brexit. And no wonder. In only a few weeks the UK could see the biggest political and legal in generations. In the midst of that change, many have questioned the future role for London as a hub for international disputes.

Clyde & Co are pleased to report the successful defence of a claim after a site supervisor sustained a serious arm injury following an alleged accident at work.

by Julie Hamilton, Partner

The recent, high profile collapse of a multi million pound fraud trial in London highlights the importance of expert evidence. The role of an expert witness should be to provide the court with an opinion on a particular subject based on their experience, knowledge and expertise.

by Dr Bashir Qureshi

FRCGP, FRCPCH, AFOM-RCP, Hon FFSRH-RCOG, Hon FRSPH, Hon MAPHA-USA.

• Expert Witness Cultural, Religious & Ethnic issues in Litigation.

• Expert Witness in GP Clinical Negligence.

• Author, Transcultural Medicine; dealing with patients from different Cultures

by Dr Chris Jenner, Consultant in Pain Medicine and leading expert witness

Background

Somek & Associates is experienced in providing Expert Witnesses for clinical negligence and personal injury litigation, but also in other areas of dispute involving health or disability issues. This consultancy focuses on quality over quantity, and is passionate about providing a comprehensive and professional service to its clients – and to its experts. As a medicolegal consultancy, it is not simply a “database of experts”. Most importantly Somek & Associates’ experts are recruited carefully and then trained to understand their role as expert witnesses, and their obligations under the relevant procedure rules.

by Antony Fanshawe

Why Commercial advice and expert evidence can help shorten disputes and save you money

by J W Rodney Peyton, OBE

by Alec Samuels

Words: SJE - expertise - conflicts - solicitors

Abstract: The selection and instruction of the SJE - the risks - the fee - conflicts of interest - change of opinion - constraints on SJE - the role of the solicitor

by Graeme Watson, Partner and Bethany Dodds Associate at Clyde and Co. healthcare department

by Justine Woods, Partner at Cooper Grace Ward and leads the family law team.

Specialist Personal Injury solicitor at Trethowans, James Braund, explores the implications of the increasing shift towards autonomous vehicles in the UK.