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Chris Makin

Forensic Accountant, Mediator & Expert Determinator

Gerroff moy land!

Land in the UK is a finite commodity – except on the East Coast for example, where either through natural erosion or a policy of abandoning land to the sea, our small island is growing even smaller – so it is little wonder that arguments over who owns which part of our precious Albion are emotive.

Some land of course is well worth fighting over: the narrow strip which would allow access to a huge building site worth millions, for example. But what can cause just as much concern is the dispute between neighbours over where exactly a border runs between their properties. Such disputes can last for years at huge expense, and emotionally they can be a nightmare.

Take the case of neighbours in rural Lancashire, reported in the Daily Telegraph a little time ago. A dispute over the exact placing of a fence had gone to the High Court, which ruled in favour of Mr Jeffrey Grundy, a businessman. His neighbour Miss June Iddon, a 72-year old spinster, didn’t accept the court’s decision. When Mr Grundy and his contractor began moving the fence, Miss Iddon, in a rage, seized a spade and swung it at Mr Grundy, breaking his arm. She was sent to prison for 12 weeks, and was dragged down to the cells, protesting her innocence.

So not only would it have cost her a fortune in legal fees when she lost at the High Court, not only does she now have a criminal record, but when she is released (for good behaviour?!) she will have to go on living next door to the person she hates.

There has to be a better way of solving such cases, and indeed there is.

District Judge Stephen Oliver-Jones QC, designated DJ for the West Midlands, is so aware of such problems that he insists, on first learning of a boundary dispute in his area, that all parties and their lawyers attend his chambers, where he warns them of the expense, delay and emotion of continuing with the litigation, and forcefully urges them have a skilled mediator help them to settle the matter.

Of course mediation is not the answer to every situation – Halsey –v- Milton Keynes General NHS Trust [2004] EWCA Civ 576 gives a checklist – but it is remarkably effective in many cases, and the going rate for reaching a settlement is reckoned to be over 70%, even including those parties who agreed to mediate only after judicial “encouragement”.

As Lord Justice May said in Egan –v- Motor Services (Bath) Ltd [2007] EWCA Civ 1002:

“Try it more often.”

Chris Makin Forensic Accountant & Mediator

Chris Makin Forensic Accountant & Mediator Please allow me to describe a couple of mediations I have done on this topic, all identifying features changed to preserve confidentiality.

B

usiness neighbours had not spoken for ten years when I was asked to mediate their dispute.

At the start they even refused to sit in the same room.

The dispute was over a yard between two Victorian warehouses. On the low side was a motor panel beater who had traded there for many years; on the other a new architects’ practice. The latter had constructed a mezzanine floor and modern staircases inside, and completed the facelift by laying tarmac in the yard.

Trouble was, the yard had been muddy with natural drainage. Now every time it rained the water ran down the slope into the panel beater’s workshop. He couldn’t spray cars over a wet floor, and had to waste time mopping out.

Worse, the architects had marked out the yard with parking spaces, blocking a public right of way, a fire escape, and access to the workshop.

The panel beater had produced an expert accountant’s report on loss of profit of £100,000. It was grossly inflated, and was really just a cry for help.

I took the parties out to the yard on a damp November afternoon, got them to measure up the access points and blocked markings, and eventually the architect agreed to repaint the parking spaces freeing up the right of way and access, and agreed to have a new drain constructed to take the water away. With a modest payment to the panel beater for his inconvenience, the dispute of ten years was settled in a day.

Chris Makin Forensic Accountant & Mediator

T

he other example concerned a row of detached houses, “little boxes on the hillside made of ticky tacky”. Looking from left to right there was Mr Left’s house and a drive, then Mr Right’s service strip and house with a drive to its right, and so on up the hill.

Mr Left wanted to construct a garage at the side of his house with a bedroom above, and there was doubt about where exactly the border lay between his drive and the service strip. Mr Left asked Mr Right for the benefit of the doubt, to construct his extension up to the edge of the service strip rather than taking the mid-point of the low dividing wall. Mr Right adamantly refused; but when he was on holiday, Mr Left had the extension built nevertheless.

During the mediation, I knew we were in trouble when Mr Right produce a photograph of his house, showing where he believed the boundary lay. Interestingly, there was a bedsheet draped out of the bedroom window, painted with a Union Jack and “Welcome Home, Gary”.

To be friendly, I asked “Who’s Gary?” to be told that he was his now dead, a soldier killed in the first Gulf War, and Mr Left had encroached on the “sacred” land where he had played with Gary as a child.

After fierce negotiations, Mr Left agreed to pull down the extension – it was only a brickwork shell – and rebuild it two inches narrower. That would have been a good result, except that Mr Right said that he must have been Right (!) all along, so he wanted his costs. Mr Left had no money. The mediation failed, and no doubt the dispute rumbled on, with huge legal costs and destroyed relationships; but we got so close.

Litigation destroys relationships; mediation can rebuild them. Litigation is hugely expensive; the cost of mediation can be modest. Litigation can last for many years; mediation is usually over in a day. And mediation is such a powerful process that even a mediator such as myself, a mere chartered accountant, can bring warring parties together.

chris@chrismakin.co.uk www.chrismakin.co.uk

Chris Makin

‘Forensic Accountancy Expert Witness’ Chris Makin qualified as a chartered accountant 40 years ago, and practised in the “boring” areas – accounts, audit, tax, business advice – for 15 years. In 1988 he was asked to help defend the chairman of Barlow Clowes, which had collapsed with debts of £150million; this was the first big infamous Ponzi scheme. With a team of 6 assistants he had to assess van-loads of evidence from the Serious Fraud Office, and his report of 43 ringbinders was agreed by the Prosecution, leading to the chairman’s “Not Guilty” verdicts on all charges.

Chris was hooked, and he has practised full-time as a forensic accountant, expert witness, mediator and expert determiner ever since. He loves the courtroom, having given expert evidence about 100 times, and he has conducted a similar number of mediations, with an 80% settlement rate.

Chris has vast experience in all manner of legal cases, including professional negligence, director disqualification, shareholder and partnership disputes, insurance claims, product liability, family, personal injury, fatal accidents and crime, as well as lecturing and training. He is a much respected author of legal papers.

Versatility is key to the role of a forensic accountant.

Chris offers a wide range of dispute resolution methods as an accredited forensic accountant, accredited expert witness, accredited mediator and accredited expert determiner. He finds mediation particularly satisfying, when he can help others to settle their differences in their own way, and avoid the horrors and expense of a trial.

Dedicated to helping others, Chris is an active fellow of the Academy of Experts - of which, there are only sixty worldwide - and sits on the Academy's investigation committee. He is an examiner in mediation and expert determination. At ICAEW (Institute of Chartered Accountants in England and Wales) he sat for many years on the Forensic committee and the Support Member steering group, and continues as a member of the Ethics Advisory committee. He acts as a Support Member, or honorary counsellor, for chartered accountants facing disciplinary and other ethical problems.

A highly experienced and respected chartered accountant, Chris understands business; he wrote a chapter for Kemp & Kemp The Quantum of Damages to explain business, financial accounts and how to quantify losses in a style which “even” barristers and judges could understand!

Chris offers a professional, objective and independent opinion on cases where the common factor is that money or valuable assets are involved.

This Award-winning chartered accountant has also been instructed to work on many ‘structured collar’ cases, involving the big banks of the UK and smaller businesses.

'Structured collars' are interest hedging agreements sold to SMEs, as “protection” against interest rises.

The FSA/FCA have ruled that they were mis-sold in 90% of cases, and that compensation must be paid.

Some 30,000 SMEs are entitled to compensation, and Chris’s task is to quantify the loss of profits and other costs and losses arising from the damage caused to a business where £250,000 a year or more has been paid to the banks under these mis-sold contracts. His findings are typically that compensation of £1-3million should be paid.

Over the last 25 years Chris has acted in hundreds of personal injury and fatal accident cases, both large and small. He acted for the dependents of 5 of those killed in the Selby rail crash, for example, and he currently has several mesothelioma cases. The pattern is 50% for claimants, 30% for defendants and 20% as Single Joint Expert. When acting for claimants, his figures are mostly accepted even after detailed review from the other side, but when acting for defendants he has made significant savings.

And with so many appearances in court as an expert witness, judges are used to relying on his opinions, too.

Chris has a vast experience in matrimonial cases.

With business and share valuations being a large part in these cases, Chris can advise on a taxefficient way to withdraw assets from the marriage.

Criminal cases have involved money laundering, drug trafficking and taxation offences. The main attraction in using Chris as a forensic accountant and expert witness is that it costs nothing to find out if he can add value to your case. He provides an initial review with no obligation to instruct him. If the case doesn’t proceed any further than the initial review, there is no charge and all paperwork is destroyed. If the matter does proceed the time spent on the initial review is included in the fee quoted, and only when terms are agreed is a contractual relationship established.

When it comes to hiring a forensic accountant,. Chris Makin certainly has the experience required. As well as offering his valuable no obligation review, the work completed will be to an impeccable standard and hard to beat. Forensic Industry E Magazine is proud to make this most deserving award.

For further information, please call Chris Makin, Forensic Accountant on 01924 495888 or email enquiries to: chris@chrismakin.co.uk

Does the Premier League have a future?

was e l c 0. r ti s A in 201 anged i (Th itten ve ch wr ay ha n, ) e uch m h t m s ng since ot by Thi n bly a b pro but

I know nothing about football.

Exceptions: my Dad took me to see Huddersfield Town twice – the pork pies were interesting, but the match wasn’t.

And I’ve played at Leeds Road and Elland Road, but only in a brass band for Royal visits.

And I was expert for the defence, South Yorkshire Police, when the officers who were traumatised at the Leppings Lane end at Hillsborough claimed loss of earnings and pension; but the trial settled on the first day, so I didn’t learn much about football even then.

All of which made me the obvious choice, when the BBC wanted an accountant who knows nothing about football, to review the accounts of the 20 Premier League clubs, and give an interview for “The Report” on BBC Radio 4, on whether these clubs have a viable business model.

So if what follows contains any bloomers, I apologise in advance; I repeat, I know nothing about football.

I reviewed the latest filed accounts at the time of the interview in April, when most of the accounts on file were for years ending in May to July 2009. All were filed on time, except for Liverpool, who had only just filed their July 2008 accounts, for obvious reasons: their banking facility of £350m was due to expire on 26 July 2009, and when the accounts were signed on 26 February 2009 that problem had not been resolved.

KPMG qualified the audit report for “a material uncertainty which may cast significant doubt on the Group’s and the Parent’s ability to continue as a going concern.”

www.chrismakin.co.uk chris@chrismakin.co.uk

Although there were exceptions, most of the accounts showed a worrying position.

Directors’ reports included such phrases as: •“The acquisition of players and their related payroll costs are deemed the core activity risk…the directors are mindful of the pitfalls that are inherent in this area of the business.”

•“The debt level is manageable but cannot continue to increase further.”

•“The Directors are currently in discussions with lenders regarding the potential securitisation of future guaranteed broadcast revenues…” Selling one’s birthright for a mess of pottage springs to mind.

•“These losses are being funded in a number of ways.

Once again we are indebted to certain directors…”

•“The loss for the year amounted to £6.9m wich has been transferred to reserves…” – but this club didn’t have any reserves!

•“The company has received assurances from the directors of the parent company that no repayment demand will be made which would…cause the company to be technically insolvent.”

The accumulated accounts for the Premier League (excluding Portsmouth, which is in administration)

show turnover of £1,869.64million; net losses (net of net profits) of £269.115m; fixed assets £3,045.384m; net current liabilities £1,061.278m, and total liabilities (current, long term, provisions, deferred income etc) of £4,418.233m. Four and a half billion pounds! The total balance sheet worth of these clubs is £(484,275,000) – that’s half a billion negative!

These are frightening figures.

So what is going on? These features emerge: •Only 5 clubs made a trading profit last year, and most were modest, ranging from £½m for Stoke to £9.35m for Manchester United, and then £35m for the star, Arsenal.

•About a third of most clubs’ income is from broadcasting, but to stay in the game, clubs must win matches.

•They try to do that by spending more and more on players: buying at high prices, and paying high salaries. But profit from such a plan is not guaranteed.

•Stoke City is a case in point. Promoted to the Premier League during the year, its turnover went from £11m to £54m, yet its net loss of £4.3m increased to a net profit of only £0.5m. Other clubs suffered huge losses despite paying millions for players.

Chris Makin Forensic Accountant & Mediator

The most prominent feature of these accounts is the support given by directors.

Most clubs have high current liabilities, which include large sums injected by directors. Manchester City shows £194.4m owed to Sheikh Mansour’s parent company; At Stoke the Coates family are converting £24m of debt into equity; at Sunderland, E Short gave £67m to the club during the year; at Wigan Athletic, the chairman David Whelan’s holding company is owed £39m, and has provided security for the club’s bank borrowings of £11m.

The most extreme case of a director supporting the club is Chelsea, which Roman Abramovich has supported to the extent of over half a billion pounds.

One must ask what chance such benefactors have of ever seeing their money again.

So the Premier League does have a future, but only if there is a steady supply of rich benefactors, willing to loan large amounts with little prospect of repayment.

And such benefactors cannot be guaranteed to renew their support; see for example Burnley, where one director’s company has loaned £3.246m. The trouble is that this company is now in administration, and of course the administrator’s duty is to the creditors, not to the football club. Burnley’s accounts do not give news of any successor to this failed benefactor.

The clearest example of a club losing its benefactors is Portsmouth. The administrator’s report tells a sad tale of a benefactor withdrawing, of lengthy talks with two possible successors, and of neither of them coming up with the goods. Result: arguably no future.

So, whilst football does give pleasure to millions of fans, and whilst some enthusiasts are willing to spend millions on their clubs, the financial model is dependent on this small group of benefactors, and in the real world that isn’t really a sustainable model.

I know nothing about football; my passion is classical music, but for my friends’ sake I do worry that Premier League football may not last as long as Bach, Mozart, and Beethoven.

Services to Forensic Accountancy Award 2015 Mr. Chris Makin The Senior Management team of the Forensic & Expert Witness E Magazine are delighted to announce Chris Makin as the deserving recipient of the much coveted, Award for Forensic Accountancy Services for 2015.

The Award recognises Mr. Makin's reputation as a highly valued Expert Witness, his experience within Chartered Accountancy, and his critical involvement in many disputes involving Corporate and Civil cases.

The 2015 award follows the presentation of the accolade in 2013. In an unprecedented turn of events, Chris Makin has been selected to receive the Award for a second time in three years; great testimony to his hard work and reputation within the Expert Witness sector.

Chris Makin qualified as a chartered accountant 40 years ago, and practised in the “boring” areas – accounts, audit, tax, business advice – for 15 years.

In 1988 he was asked to help defend the chairman of Barlow Clowes, which had collapsed with debts of £150million; this was the first big infamous Ponzi scheme. With a team of 6 assistants he had to assess van-loads of evidence from the Serious Fraud Office, and his report of 43 ringbinders was agreed by the Prosecution, leading to the chairman’s “Not Guilty” verdicts on all charges.

Chris was hooked, and he has practised full-time as a forensic accountant, expert witness, mediator and expert determiner ever since. He loves the courtroom, having given expert evidence about 80 times, and he has conducted a similar number of mediations, with an 80% settlement rate.

Chris has vast experience in all manner of legal cases, including professional negligence, director disqualification, shareholder and partnership disputes, insurance claims, product liability, family, personal injury, fatal accidents and crime, as well as lecturing and training. He is a much respected author of legal papers

Versatility is key to the role of a forensic accountant.

Chris offers a wide range of dispute resolution methods as an accredited forensic accountant, accredited expert witness, accredited mediator and accredited expert determiner. He finds mediation particularly satisfying, when he can help others to settle their differences in their own way, and avoid the horrors and expense of a trial.

Dedicated to helping others, Chris is an active fellow of the Academy of Experts - of which, there are only sixty worldwide - and sits on the Academy's investigation committee. He is an examiner in mediation and expert determination. At ICAEW (Institute of Chartered Accountants in England and Wales) he sits on the Forensic committee, the Ethics Advisory committee and the Support Member steering group. He acts as a Support Member, or honorary counsellor for chartered accountants facing disciplinary and other ethical problems.

A highly experienced and respected chartered accountant, Chris understands business; he wrote a chapter for Kemp & Kemp The Quantum of Damages to explain business, financial accounts and how to quantify losses in a style which “even” barristers and judges could understand!

Chris offers a professional, objective and independent opinion on cases where the common factor is that money or valuable assets are involved.

This Award-winning chartered accountant has also been instructed to work on many ‘structured collar’ cases, involving the big banks of the UK and smaller businesses.

'Structured collars' are interest hedging agreements sold to SMEs, as “protection” against interest rises.

The FSA/FCA have ruled that they were mis-sold in 90% of cases, and that compensation must be paid.

Some 30,000 SMEs are entitled to compensation, and Chris’s task is to quantify the loss of profits and other costs and losses arising from the damage caused to a business where £250,000 a year or more has been paid to the banks under these mis-sold contracts.

His findings are typically that compensation of £1-3million should be paid. At the time of writing, only 10 of the 30,000 cases have been concluded, but it is said that Vince Cable the business minister is keeping a close eye on progress.

The main attraction in using Chris as a forensic accountant and expert witness is that it costs nothing to find out if he can add value to your case.

He provides an initial review with no obligation to instruct him. If the case doesn’t proceed any further than the initial review, there is no charge and all paperwork is destroyed. If the matter does proceed the time spent on the initial review is included in the fee quoted, and only when terms are agreed is a contractual relationship established.

Over the last 25 years Chris has acted in hundreds of personal injury and fatal accident cases, both large and small. He acted for the dependents of 5 of those killed in the Selby rail crash, for example, and he currently has several mesothelioma cases. The pattern is 50% for claimants, 30% for defendants and 20% as Single Joint Expert. When acting for claimants, his figures are mostly accepted even after detailed review from the other side, but when acting for defendants he has made significant savings.

And with so many appearances in court as an expert witness, judges are used to relying on his opinions, too.

“Chris Makin managed to move entrenched parties to address difficult issues and resolve a situation that looked impossible.”

Chris has a vast experience in matrimonial cases.

With business and share valuations being a large part in these cases, Chris can advise on a taxefficient way to withdraw assets from the marriage.

Criminal cases have involved

• • •

Money Laundering, Drug Trafficking And Taxation Offences.

When it comes to hiring a forensic accountant, Mr. Chris Makin certainly has the experience required. As well as offering his valuable no obligation review, the work completed will be to an impeccable standard and hard to beat.

Forensic Industry E Magazine is proud to make this most deserving award.

For further information, please call Chris Makin, Forensic Accountant on

T:01924 495888 E:chris@chrismakin.co.uk W.www.chrismakin.co.uk

The Real Value Of The Meeting Of Experts

“It is ORDERED that the experts of like discipline shall meet, and shall discuss matters relevant to their opinions in this matter, and shall produce a Joint Statement, setting out those matters on which they are agreed, and those matters on which they have failed to agree, with a summary of their reasons for disagreeing.”

A standard step in the proceedings?

Pure routine?

Yes, of course.

Absolutely not!

A meeting of experts can make or break a case, and can destroy months of lawyers’ work in an afternoon. This is where your chosen expert shows his/her true mettle, and earns his fee.

If you are sharp-eyed (and which lawyer is not?) you will have noticed two things. Firstly, I am talking about meetings of experts, whereas the rules talk about discussions between experts – it isn’t necessary for a face to face meeting to occur. And secondly, the typical order above requires there only to be reasons for failure to agree. The Criminal Procedure Rules talk about reasons for agreement as well as disagreement, which is an interesting idea.

But we must be talking here about the Civil Procedure Rules (CPR), so let us stay with CPR. So we have had exchange of witness statements, and then of expert reports, and a meeting has been ordered. What does the expert do then, poor thing?

The answer is three words: preparation, preparation, preparation. For the expert this meeting is just as important as the trial. Why? Because the joint statement, setting out what has been agreed, and specifying why the experts have not agreed other issues, is intended to shorten the list of issues to be tried; if the experts are not in contention, what is the point of airing all the arguments again in open court?

Yet here we have a contradiction: although the experts might agree something, and although that may shorten the trial, “Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.” CPR 35.12(5).

Tricky, eh? The experts are ordered to set out in writing what they have agreed, yet the parties are not to be bound by it. Why? Because the experts can discuss matters only within their own science (Foulks –v- Chard [1783]) and must not agree something which counsel may wish to argue. They are not there to “knock up a deal”. And this is where your truly experienced expert comes into his own, with a clear idea of what he may discuss and what must be left to counsel and the court. Examples: if two opposing accountant experts disagree on the Bolam test – what the reasonably competent accountant should have done in particular circumstances – they can put into their joint statement what they believe that normal accountant should have done, but they cannot agree, or even agree to differ, on whether this particular accountant fell short.

That is for the judge.

When choosing an expert, don’t forget that he will probably have to organise and attend a meeting of experts, so choose your expert carefully.

It matters!

Or if there is contention about the basis on which calculations, say of lost profit after a factory fire, are based, they can agree each other’s calculations “numbers as numbers”, but must not agree the amount of lost profit. In that circumstance, the furthest they could take it would be to agree a formula for calculating lost profit, which may be applied to the figures ultimately decided by the court.

But back to preparation.

An agenda ought to be agreed in advance. I have a pro forma agenda which I try to send to the other expert beforehand, and agree just as an outline. The court may specify the issues it wishes the experts to discuss (CPR 35.12(2)) and instructing solicitors may do likewise if they wish, but my experience after literally thousands of expert reports and scores of expert meetings is that this never happens: expert reports have been exchanged, the areas of disagreement have become clear, and those areas go straight into the agenda.

The pro forma also includes such basics as where and when we are to meet, who is to attend (lawyers? No thank you!), and who is to take the minutes. Actually, that isn’t a basic at all; it’s an important decision. I remember one very difficult expert meeting where we reached that topic, and my opponent (a notorious defence expert, thankfully now retired) produced his manager and said he would take the minutes. I agreed, provided it was accepted that he was working for us both, and provided that I received a photocopy of his notes as soon as the meeting ended.

Well, in the confusion to end a full day’s meeting, packing up the bankers’ boxes and so on, I didn’t get my photocopies. When I asked for them the next day, the manager said that he couldn’t release them until his boss had edited them (!!) and he had gone on a business trip to USA for two weeks. That two weeks took us to within 21 days of trial. And when I eventually received the minutes, the common issues and my reasons for matters not agreed ran to 8 pages, and he had inserted 27 pages of new argument and figure-work! It didn’t do his client’s case any good, but it did prevent any chance of settling the case more than 21 days before trial and saving costs.

Not nice!

When preparing, the experts should consider the medium they will use for discussion:

Teleconference?

Emails?

Skype?

The old telephone?

I usually prefer face to face – I can assess my opponent, and personalities will come into the discussion; also it is easy to recalculate something on screen there and then, and get a transcript – but costs of course must always be proportionate.

One standard item in my agenda is to confirm which reports each expert has written. I have even known meetings where one or the other discovers that there are more expert reports than they knew about.

More often, and again a standard item, is to agree that each expert has seen the same documents.

Even though each expert report ought to list all the documents on which that expert’s opinion relies, it is surprising how often the first half hour of an expert meeting has to be spent in photocopying documents which one expert has seen and the other has not.

Experts agreed a joint statement, but there were a few typos. One expert said he would edit the statement, but he was then “persuaded” by counsel to make some amendments, which were not noticed by the other expert when the statement was signed.

That expert then tried to withdraw his signature, without success.

One expert typed the joint statement on a notebook belonging to the other, and Properties showed that the other had produced it, so that he had difficulty challenging its accuracy.

The Academy tell me that experts are frequently told that they must confer with their instructing solicitor before signing anything – very naughty!

There are problems with telephone meetings in agreeing who is to take the minutes, and how.

A number of experts still seem to have difficulty in understanding the purpose of an experts’ meeting, what they must agree and what must be recorded, particularly with the different requirements of the various procedure rules.

The experts should agree to settle each issue one by one, sticking to the agenda, and not talking about everything at once and agreeing nothing – it happens!

Lots of things can go wrong at an experts’ meeting.

Here are some examples passed to me by The Academy of Experts, where I am a fellow:

When preparing, the experts should consider the medium they will use for discussion:

Teleconference?

Emails?

Skype?

The old telephone?

I usually prefer face to face – I can assess my opponent, and personalities will come into the discussion; also it is easy to recalculate something on screen there and then, and get a transcript – but costs of course must always be proportionate.

One standard item in my agenda is to confirm which reports each expert has written. I have even known meetings where one or the other discovers that there are more expert reports than they knew about.

More often, and again a standard item, is to agree that each expert has seen the same documents.

Even though each expert report ought to list all the documents on which that expert’s opinion relies, it is surprising how often the first half hour of an expert meeting has to be spent in photocopying documents which one expert has seen and the other has not.

The experts should agree to settle each issue one by one, sticking to the agenda, and not talking about everything at once and agreeing nothing – it happens!

Lots of things can go wrong at an experts’ meeting.

Here are some examples passed to me by The Academy of Experts, where I am a fellow:

Experts agreed a joint statement, but there were a few typos. One expert said he would edit the statement, but he was then “persuaded” by counsel to make some amendments, which were not noticed by the other expert when the statement was signed.

That expert then tried to withdraw his signature, without success.

One expert typed the joint statement on a notebook belonging to the other, and Properties showed that the other had produced it, so that he had difficulty challenging its accuracy.

The Academy tell me that experts are frequently told that they must confer with their instructing solicitor before signing anything – very naughty!

There are problems with telephone meetings in agreeing who is to take the minutes, and how.

A number of experts still seem to have difficulty in understanding the purpose of an experts’ meeting, what they must agree and what must be recorded, particularly with the different requirements of the various procedure rules.

The Academy tell me that experts are frequently told that they must confer with their instructing solicitor before signing anything – very naughty!

But of course the biggest clanger is Jones –v- Kaney [2011] UKSC 13.

The Supreme Court case which saw an end to the expert witness’s immunity from suit in negligence.

That was about an expert meeting, and the signing of the joint statement. Jones was a road accident victim; Kaney was a consultant clinical psychologist.

A meeting of clinical psychologists was held to agree the extent to which Mr Jones’s accident had brought on PTSD. The other expert was Dr El-Assra for the defence. The discussion took place by telephone, and Dr El-Assra produced the joint statement, which was damaging to Mr Jones’s claim. Miss Kaney signed it without, she said, even reading it. She said she was under pressure to sign.

Mr Jones sued her for negligence, and won; the age-old protection for expert witness was lost.

Speaking personally, I am not at all concerned about my competence as an expert (and I carry negligence insurance of £5million!). Kaney performed about as badly as it is possible for an expert to perform, but we are not all like that.

Moral: when choosing an expert, don’t forget that he will probably have to organise and attend a meeting of experts, so choose your expert carefully.

chris@chrismakin.co.uk

www.chrismakin.co.uk

How to get best value out of your expert

Chris Makin

Forensic Accountant, Mediator & Expert Determinator I have gone on alarmingly in the legal press about forensic accountancy, mediation and even expert determination. Perhaps it is time, from an expert’s point of view, to talk about experts generally, and about how you can use them to get best value for the benefit of your clients – and your own reputation.

The first point to consider is whether an expert is needed at all. That may be a surprising thing to say; is not an experienced litigator capable of deciding? Yet in a number of cases I have seen lawyers become very interested in the legal niceties of a case – liability and causation – without realising either that quantum will be so small that the case is not worth pursuing, or that the opponent is so without means that only a Pyrrhic victory can be achieved.

The solution here is to have relationships with experts who will give you their free initial view. My standard terms include an initial review without charge, and with no obligation to instruct me. Many other experts offer the same terms. So why not ask early and often? We really don’t mind, because the relationship becomes commercially worthwhile when you ask us to help with the meaty cases.

Don’t be nervous about discussing a case with your friendly expert. CPR Part 35 applies only when the expert is formally instructed. That may never happen; you may decide to use only a shadow expert, advising in the background, to whom CPR does not apply at all.

But a word of caution: if a single joint expert is required (and in many county court matrimonial cases, for example, the SJE is almost universal) you must not spoil the neutrality of the expert by discussing anything at all.

Having said that, your friendly expert could be very useful in the background where an SJE is imposed by the court.

And if their opinions are blatantly wrong, a challenge under Daniels –v- Walker [2000] 1 WLR 1382 may become necessary.

The day of the hired gun is long gone.

When choosing an expert, ask about more than their fees.

Do they have the right professional or technical expertise for this particular case? Are they fully familiar with CPR? Because your case may be in the small minority which go the whole way, and you can’t afford for your expert to let you down in the witness box.

Similarly with meetings of experts, an experienced expert will know how to arrange the meeting, how to record the matters agreed and not agreed, and how to avoid any attempt by the other side to persuade your expert to settle the case or to make such concessions that your counsel’s ability to cross-examine is usurped.

When it is time to write the report, give your expert very clear written instructions, remembering that the letter of instruction is disclosable if there is any doubt about it – CPR 35.10 (4). And do not interfere with the expert; trust him to produce a clear opinion. In Whitehouse –v- Jordan [1980] UKHL 12 Lord Wilberforce said this about lawyers interfering with the opinions of experts: "While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating."

The day of the hired gun is long gone. I remember an orthopaedic surgeon, who illustrated all of his lectures with a real skeleton, and who proudly proclaimed that whiplash didn’t exist; it was all in the mind of the RTA victim. For many years he was popular with motor insurers, but he was typecast, and his day has passed. An expert must give an unbiased opinion; the acid test is whether he would give the same opinion no matter which side instructs him. And an expert must not stick to an opinion which later evidence shows to be untenable; the court will give more credence to an expert who is sensible about making concessions.

Turning to questions put to the expert (CPR 35.6), if you have an experienced expert, you can trust them to decide whether the questions are “for clarification”, or whether the other side are really asking the expert to rewrite their report.

chris@chrismakin.co.uk

Finally, into the box (if meetings of experts, Part 36 offers, and even mediation have failed). Here there is no substitute for experience. Expert training is invaluable – has your chosen expert done this? In a real trial, there is no substitute for an expert who addresses the judge, not examining counsel; who speaks clearly and with authority; who watches the judge’s pen so as not to rush him; who gives replies which would suit Alice (not too short, not too long, but just right); and who is not non-plussed by hypothetical questions or a series of questions leading up to an uncomfortable conclusion. I have given expert evidence over 70 times, and the ways of barristers are very familiar.

Experts can make or break a case. It is such a pity to see an inadequate expert spoil a case on which you have worked long and hard, and where your client deserves to succeed. If I have helped you avoid the pitfalls in appointing a poor expert, then I am content.

www.chrismakin.co.uk

RSW NEWS 2014 FORENSICS INDUSTRY

E-MAGAZINE

AWARD NEWS

Orthopaedic Trauma Specialist Medico-legal Services Award for 2014/15 Presented to

RSW Medico Legal

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instruct direct !

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Stourbridge, Birmingham, Coventry, Bristol, Swindon & Oxford

Mr. Richard Scott-Watson

RSW Medicolegal Ltd

The Senior Management team of the Forensic & Expert Witness E Magazine are delighted to announce RSW Medicolegal as the recipients of the Medico-legal Services Award for 2014/15. The Award reflects the experience and professional expertise that the firm offers in the writing of medico-legal reports and in the provision of expert witness testimony.

Based in Stourbridge, firm founder and Managing Director, Richard Scott-Watson is a highly experienced Trauma and Orthopaedic Surgeon. He became the Director and sole Medical Examiner at RSW Medicolegal Ltd in August 1990. Since its inception, the firm have been specialising in the provision of high quality medico legal reports in the field of orthopaedic related personal injury cases.

Mr. Scott-Watson is a single expert with over 24 years experience with a particular interest and expertise in general orthopaedics, fractures and trauma; musculoskeletal injuries and all aspects of bone and soft tissue injury including limb and spinal injuries. He is particularly interested in the disability aspect of cases as this is what matters most to the claimant. He is a member of the Oxford Medical and Legal Society and attends industry-led conferences each year, depending on how interesting and relevant the subject matter is.

Mr Scott - Watson

discussed his work as an expert witness in a recent interview 'How has your experience and various qualifications enhanced your standing as an Expert Witness?'

“The difficulty with being an expert witness in the field of Orthopaedics is that much of what the Court requires is not routine NHS work,” he explained.

“Clearly it is essential to be knowledgeable about all the subjects the expert is claiming to be expert in, in every case but qualifications are also essential.

There may have been a time when an expert could claim to be so because of experience alone, but really both experience and qualifications are required.”

'How regularly do you attend court and who do you act on behalf of?'

“Court attendances are rare, I would put it at about one in a thousand cases, so that works out at between one and two per year,” Mr. Scott-Watson replied. “I usually find they are cases where I am instructed by solicitors for the claimant and, more often than not, the problem is that the other expert has not stuck firmly to CPR part 35 and has become partisan.

With changes to the rules anticipated in January 2015 I can see the potential for a significant change with more cases being challenged by Insurance companies”

“In my day the essential qualification was the Fellowship of a Royal College of Surgeons, but this has since changed and the Trauma and Orthopaedic Fellowship would be essential for more recent experts,” he continued. “In addition, I hold the Diploma in Disability Assessment Medicine. Experience from that is of assistance in giving opinions on disabilities and their interactions, which is often a major part of a case and often not dealt with in detail. It is also useful to hold the LLB so that I can understand where lawyers are coming from and what they are saying (sometimes).”

“Experience is also essential in providing the courts what they require. Fortunately after nearly 25 years and over 18,000 reports, there are not many things that are new, but the odd one still turns up now and again,” Mr. Scott-Watson went on to say Mr. Scott-Watson was then asked to 'explain the importance of instructing an Expert Witness at the beginning of an investigation/legal case, opposed to asking for an opinion at a later stage of the proceedings?'

“The timing of instructions is something not all lawyers get correct,” he said. “For simple cases that will settle down and probably fully recover in a year or two, an early report is largely pointless unless there vis financial hardship and an interim payment is needed, since without a medical report this is very difficult.”

“A single detailed report at the twelve to eighteen month mark will usually clear the whole medical aspect of the case in one report,” he went on to say.

“The problem comes with the multiple injuries as these are much better addressed with an initial report early, probably within three months. This will set the scene for time off work, reports from other specialities and whether or not full recovery is anticipated from that point. This can help with interim payment requests, which are almost always an issue in these cases, at an early stage and reduce the often considerable financial burden placed on claimants from prolonged absence from work.”

'Could you provide brief examples of cases that you have instructed on?'

“Many of the cases are due to initial reports proving incorrect with the passage of time, usually in that a prognosis has not been agreed by the claimant.

The initial General Practitioner report is something we have all come to know but realistically in all but the most minor cases their value is very limited,” he explained.

“However, the telephone only rehabilitation report is worse than useless,” he continued. “The time used to assess the case during these interviews is inadequate to make an assessment and diagnosis

and treatment recommendations are not always correct. Many of these reports are completed in only a few minutes although some GP experts will give up to twenty. The report being written without medical notes means that it is almost entirely a claimant account, which is not always found to be correct at more detailed examination. As a result, at a later stage, their only value is in reducing the need to remember what happened, but what was said at these interviews can cause a considerable difficulty for the claimant if it is contradicted by the notes.”

The most interesting cases, from Mr. Scott-Watson's experience, are multiple injuries and those with inter-acting disability which may or may not have come from the accident.

“The person on crutches long term, such as an above knee amputee who cannot have a prosthesis, will gain considerably more mobility disability from a broken wrist than those with no initial disability.” he explained. “Equally that person may gain little disability in activities of daily living as their disability in these activities was already so high that it could not really be increased. Such arguments are vital to assess a case fairly for both parties.”

“People often present with areas previously injured that they have now re-injured or have sustained a new injury in the same area. This is common with hands in particular,” Mr. Scott-Watson explained.

“Assessing the total disability in these cases is essential but these things add together strangely.

The final disability is not just the sum of the parts, nor is it in other circumstances. Where the two disabilities interact there is both the individual disability plus the interaction, so one of the few cases where it is possible to say that two plus two really does equal five as you have to add the extra one for the interaction!”

“Equally, where someone is left with a permanent disability, there is the potential interaction with the ravages of the ageing process,” he went on to say.

“As above, anything that limits the ability to use crutches will disproportionately affect someone who later needs them for a hip or knee condition.

This could be someone with a shoulder soft tissue injury that still reacts to repetitive movements but otherwise works normally. This is a common problem that joints are said to have returned to normal range of movement but the claimant’s report of inability to perform repetitive movements is not fully taken into consideration – a common problem here is left arm injuries and changing gear or left foot injuries and operating the clutch of a manual car.”

“In such circumstances there may be a good medical reason for advice about an automatic vehicle. An elbow that no longer fully straightens from a minor

fracture can produce similar arguments and cause disability that can easily seem out of proportion to the original injury, but that is because it is.”

Providing further examples, Mr. Scott Watson continued: “Then there is the case of the joint that is damaged and will wear abnormally in the future.

The most frustrating for the lawyers is the fortunately rare dislocated hip. The problem with these is that it is known that they can suddenly deteriorate at five years post injury so cases cannot be settled until that date, unless the deterioration occurs earlier. The difficulty is that the deterioration is the head of the femur disintegrating (from avascular necrosis) and the other problem is that these claimants are young so need a hip replacement at an early age that will inevitably need replacing again. The difference to the claimant and the difference in value between having no complications and having this complication is very significant.”

“Cases where one remaining disability can lead to another injury are not uncommon,” he explained.

“This is particularly the case with abnormal gait. It can be difficult to make a reasonable estimate as to when deterioration will occur if insufficient time has been allowed to determine what is most likely.”

“The expert who examines the notes is also there to see how the claim medically fits together.”

“Common scenarios are initial report claims of severe disability but when the notes are examined the claimant either did not attend a medical practitioner after the event or attended only once, with subsequent attendances about other matters, making no reference to continuing symptoms.”

“Where the claimant is attending a physiotherapist or chiropractor then there is no requirement for duplication but the claim of severe symptoms, as opposed to lesser ones, with no corroborative evidence is a contradiction. Attendances at the General Practitioner, or other health care professional, in the early stages does help to give an indication of the expected recovery. Inconsistencies are particularly those cases where little is wrong, at the time where symptoms are maximal, but symptoms then seem to build from a point after that. A few of these cases are genuine and the notes will help, but most are building their case, which the notes will also give an indication about if examined correctly. The long gap followed by a sudden clutch of attendances is quite a give-away,” Mr. Scott-Watson exclaimed.

“Many cases that I see are ‘simple whiplash’, and most of those turn out not to be,” he continued.

“My particular hobby horse is the neurological consequences of these injuries. Many of the claimants have low level, usually non-disabling arm symptoms which the vast majority of practitioner’s seem to either ignore, put down to something else or mention but then ignore. The problem is that this leaves claimants with permanent symptoms that would be completely remediable with appropriate treatment, in the vast majority of cases, as this is not a condition that will resolve spontaneously. The other problem with it is that claimants commonly develop minor short term arm symptoms after these injuries but what they have done is start a process that will not then manifest itself fully until about three months later. This generates two problems: Firstly that it can be ignored because the initial medical report does not use the notes and is usually written before the symptoms return (the claimant has usually forgotten the initial symptoms and these reports are so brief that detailed questions are not asked) and secondly that when those symptoms do return, being three months later, both the claimant and the expert who is unclear of the diagnosis can put it off as something unrelated.”

In conclusion, Mr. Scott-Watson explained: “Overall the expert wants to see the cases they can best address. I do not particularly want burns or hernias, but have been sent both in recent months. Clear instructions are really helpful, as is a description of the claimant’s version of how the accident happened. This is because claimants forget and as a result numerous re-writes of the ‘history of accident’ section can be requested. Where initial reports need alteration, provided the evidence is there it is the expert’s duty to realise that the report is a draft until finalised and this should never be an issue. However it is still a regular issue that solicitors ask for alterations in the version given at interview without providing evidence or ask for quotes from notes to be changed to benefit their client’s case.

Whilst this is in some way understandable it should never be given in to. What becomes really difficult is where solicitors work through agencies but the agencies ‘translate’ the request before passing it on, as well as inevitably delaying it somewhat.

This often leads to misunderstanding as the expert answers the question posed by the agency, but it is not the one the solicitor asked. To deal direct with solicitors is always in the client’s best interest and prevents misunderstanding and delays. Of course it also removes the agency from the process and the large fee that they take for their involvement.” “ What does the future hold? It would be unwise to comment too far because there is still considerable uncertainty, but presumably MedCo will appear for good or ill as will rules about striking out cases where dishonesty is shown. Certainly the GP initial report form did nothing for fraud other than probably increase it. It will be very interesting to see if the next changes make the system better or yet worse, but either way I can see many more cases being challenged by insurance companies in the coming months than has been the norm up to now.”

Areas of Expertise General orthopaedics, fractures and trauma Musculoskeletal injuries Hand and wrist injuries (including wrist fracture) Tendon injuries Forearm injuries and fracture Elbow injuries and fracture Humerus fracture Shoulder injuries and fracture Shoulder dislocation Whiplash injuries Cervical spine soft tissue injury Cervical spine fracture Back injury and pain Thoracic spine fracture and pain Lumbar spine injury, fracture and pain

Pelvic injury and fracture Hip injury and fracture Neck of femur fracture Femur fracture Knee fracture Knee ligament injury Knee meniscus injury Meniscus injury Tibia fracture Ankle sprain, fracture and dislocation Calcaneum fracture Foot fracture Metatarsal fracture Compound fracture Closed fracture

Mr R Scott - Watson

BSc(Hons) MB BS LLB (Hons)(Open) Cert.Av.Med.Cert MR(2)DDAMFRCS(Ed)

RSW Medico-Legal Ltd

Expert Witness in orthopaedic Trauma. APIL Expert.

Injury reports and employment Tribunal reports (Equalities Act).

Waiting list 4-6 weeks. Urgent reports undertaken.

Reporting since 1990. Over 17,000 reports ( Currently 1,500 per annum).

Fully trained in CPR, Court appearance (3 per year) and Report writing.

Low Velocity Impact Traffic Accident cases accepted.

Clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford.

Home and Prison visits undertaken.

For further information, please contact

Mr. Scott-Watson's Secretary, Carol Couzens Tel/Fax: 01384 441 126 or email enquiries to carolcouzens@ymail.com

An interview with Mr. Richard Scott-Watson

RSW Medicolegal Ltd Firstly, what is the importance of instructing an Expert Witness directly, as opposed to using an agency/intermediary?

“To begin with the solicitor gets to choose the expert. Some solicitors ask agencies only for the shortest waiting list but many solicitors prefer the direct contact once they have tried it.”

“Some solicitors give the impression that agencies indicate that they can only get the expert through the agency and are surprised that direct instructions can be given. It is never the case that an agency owns an expert and direct instructions can always be sent.”

What holding do these intermediate agencies have over fees?

“Agencies normally take around 50% or more of the fee the expert would normally charge. However, unless the fee is regulated, the solicitor ends up being charged considerably more than the expert would charge direct in every case that they have (accidentally) revealed their charges – usually another 10 – 30%. The value to the expert is next to nothing, in fact frequently agencies obstruct the smooth running of a case. Of course, the practicality is that the expert accepts end of case payment with direct instruction, but for nearly twice the fee for the same work, that seems reasonable.”

“It is no coincidence that what used to be independent agencies have largely been bought out by big companies – they make a lot of money for the work they do.”

Whilst using an agency, do clients always have access to the correct expert.

One whom has experience in their particular niche?

“No. The agencies rarely know or use the expert’s particular areas of specialisation. Some do not even get the speciality correct, and in the last year I have been sent a hernia and a burn, neither of which are Orthopaedic cases.”

“The criteria agencies use are usually things like speed of return of report but agencies often collect such data incorrectly and so fail to instruct the most efficient experts. I recently had an agency tell me that 25% of my cases were on time. In fact it was over 95% but their figures were skewed by them failing to correctly record when they were sent reports – resulting in the reports looking late and them asking for repeated duplicates – in one case seven times. The agencies also are first point of contact for many claimants – which some find a very tiresome process.”

In your experience, what benefits does a client receive from instructing an expert directly? In terms of cost, service and ease of liaising with the expert...

“In terms of cost, they get what they are paying for as opposed to the agency taking half of it or more. If there is a problem with a late set of documents or adjustment to a report this can be done quickly but through an agency, three weeks for every alteration is common. Some agencies hold reports for weeks before sending them on – the record I have seen is six months. Needless to say the expert was blamed for the delay when it was entirely the fault of the agency.”

“I have also had instructions to agencies being mis-interpreted, so one case recently where the agency had failed to send to correct notes, even though they had them, resulted in a significant delay in sending the report. Eventually the solicitor had to send the notes direct after I had been threatened with nonpayment for the report due to delays: Delays entirely caused by the agency that passed on the threat. The Solicitor was very happy once the problem was sorted out direct, which probably would never have been possible if the agency had continued to be in the middle.”

In what cases, can the use of an agency be a useful course of action, if any?

“Agencies can be useful to experts as they provide volume, but they need to because of the very low fees they pay. They also provide diary systems (cost, but no value) and electronic transmission of records (cost, but no value).”

Are there any legal developments or incoming Government legislative changes that will affect the use of agencies and/or experts in the future?

“I think MedCo really missed a trick in stopping fraud. The initial GP reports are almost valueless and entirely subjective as they do not insist on the contemporaneous notes, which are vital in every case. Equally, with agencies taking most of the fee in these cases, the time taken to complete a case is about a third of what is required to do the job properly. They actually encourage fraud, as all the claimant has to do is either say they are already recovered (so nothing to find and contradict) or that the symptoms were severe, but no longer are. This means that a high level of disability is recorded for part of the period prior to the report being written, which had by that time partially recovered. In almost every case where I see the claimant later, the contemporaneous notes contradict all or most of any period of severe disability.”

“As soon as MedCo came on the horizon agencies seem to pop up at every turn. At least one of these has gone bust already, owing tens of thousands of pounds. This is another problem for the experts.

We have no idea how sound, financially, these agencies are. I currently have ten which are behind their contracted payment date for at least some of the reports – this is usually the first sign of trouble ahead with their finances and I have to assume that a significant amount of work done through them may never be paid.

This does not happen when solicitors instruct direct, and this risk is taken out.”

So what are the overall benefits: • • • •

Solicitors chose their expert, and over time build working relationships.

Experts get paid correctly for their work, with reduced risk compared to working through agencies.

Cases do not get delayed through there being a middle man and instructions pass directly from instructor to expert meaning that they are not then mis-iterpreted by a third party (who is normally not medically or legally qualified).

In short it is a more efficient manner of conducting cases and all parties should have a more rewarding experience, including the claimant as the whole process is a more personal one.

For further information, please contact Mr. Scott-Watson's Secretary, Carol Couzens Tel/Fax: 01384 441 126 or email enquiries to carolcouzens@ymail.com