The Gazette 1987

GAZETTE

APRIL 1987

on Circuit especially. Although the suggestion made here would un- doubtedly have some practical dif- ficulties, these it is submitted, need not be insurmountable. In any event, in view of the benefits that would follow from such a rule, the suggestion is well worth closer scrutiny. G. Expert Evidence A large part of the Court's time in a typical personal injury case is concerned with the evaluation of the expert evidence of doctors and engineers. Cases frequently degenerate into a "battle of the ex- perts" where each side produces its own reports lending credence to its own version of events. There are, it is submitted, three problems with regard to expert evidence as it is now used. First, it is in the interests of a party to proceedings to choose his expert on the basis of who will make the best witness rather than on the basis of who is the best scientist. It is a common occurrence for solicitors to commission reports from a number of experts in any particular case and then to choose the report most favourable to their case for presentation to the Court. Secondly, it is submitted that a jury is by its nature ill-suited to deter- mine conflict between experts. Fre- quently, it is felt that the jury is less impressed by the scientific nature of the evidence, which it may not fully appreciate, than by the impact of the witness's personality, de- meanor, etc. Finally, it is suggested that the adversarial system, involv- ing, as it does, examination- in-chief, cross-examination and re-examination, creates an un- suitable environment in which to effectively elucidate reliable expert opinion. With respect to the first problem, it is suggested that the judge more frequently should use his Common Law right to call expert witnesses to assist the court. (See Rosenthal (1935) 2 Law and Contemp. Prob. 403). A better solution would be the establishment by Statute of a panel of expert witnesses in various fields whose services would be available to the parties. If the parties accept the report it could then constitute the set of agreed facts on which the trial will proceed. If a party disagrees with

in Ireland. 1985. Cork University Press).

the Court expert it should be free to call its own expert knowing, however, that it may have to pay costs for its own expert at the end of the day if the Court in its dis- cretion thinks it appropriate. •

F. Fixed Dates for Hearings The listing system for High Court actions appears to generate a lot of waste. Under the present system, for example, lawyers, litigants and expert witnesses (doctors and engineers especially) spend far too much time waiting around the High Court for their case to get before the judge. The wastage involved in this has not been quantified in this jurisdiction, but it is generally conceded to represent a substan- tial amount in costs. It is suggested that appreciable savings might be made if litigants were guaranteed a hearing at a fixed time on a fixed day. There would be no wastage from the litigants point of view in such an arrangement. The sugges- tion that the judge would be idle for long periods under such an arrangement would hardly bear scrutiny nowadays when High Court judges could be engaged in other work required of them, for example, the wr i t i ng up of judgements in other cases. Moreover, it wou ld be less wasteful from a social point of view to have a court not sitting than to have many expensive witnesses waiting for cases to come on. The judge's time is pro- bably one of the cheapest factors in the litigation process. The suggested fixed dates ar- rangement would be greatly re- inforced by a supporting rule under which the Court would only allow settlements which were notified to it, say, 1 5 clear days before the date fixed for the hearing. These rules would greatly concentrate the parties' minds to settle in good time so that consequential ad- justments in the hearing lists could be made without difficulty. It would also mean that decisions to settle or to fight would be made in a cool considered manner away from the pressure cooker at- mosphere which characterises High Court negotiations nowadays and which militates against the plaintiff in particular. It would also mean that cases would get in- dividual consideration and would not be basketed together in a group as can sometimes happen in the hectic negotiations that have become a feature of the High Court

Professional I n f o rma t i on (Contd. from p. 102)

to acquire the fee simple in the said property. 2. Determining the purchase price payable in respect of the said Acquisition. Determining the person or persons entitled to receive the said purchase money and in what proportion. 4. Appointing an officer of the Courts to execute a conveyance of the fee simple interest on the said property in the event of the persons required by statute to convey the same refusing or failing to do so. 5. For payment of costs payable by the parties in respect of the said Application, such further or other relief that may be necessary for the purpose of such a Lease.

Dated this 23rd day of April 1987.

Signed: O'Reilly Doherty & Co., Solicitors for the Applicant, 6 Main Street, Finglas, Dublin 11.

To: The County Registrar, Courthouse, Clonmel, County Tipperary.

To:

or whom this application may concern.

Michael Reilly

B.E. M . I . E . I.

CONSULTANT CIVIL ENGINEER

Litigations Reports Property Surveys Fire and Structural Reports

18 PARNELL ST., CLONMEL Tel.: 052-24360 Telex: 80278

99