Who needs an expert ...continued
Customers are mainly concerned with three factors and these are price, product quality and delivery. A quick response to a customer enquiry is also required and if the estimate is not turned around within twenty-four hours the potential work may well go to a competitor. Therefore, the administration functions also need to be slick and the wide use of computer based MIS systems certainly help to achieve a rapid response to sales enquiries.
When I entered the trade many years ago as a young printing apprentice colour work took several weeks to complete as compared to the current situation of just a few days as now demanded by customers, which is certainly considered the norm by most printing companies. In the present situation there is a greater possibility of errors being made, due to the pressure of the very limited time to process the production work. With modern communications it is also possible for customers to request extremely late changes to their jobs with the attendant pressures on the final printing and finishing processes.
In such circumstances a mistake or mistakes can be made and to reduce the possibility many firms have embraced ISO 9000 which is a Quality Assurance system designed to filter out errors from occurring within the production processes. This is achieved by introducing a comprehensive administration system that sets out how work is to be processed. Staff would be expected to follow the laid down procedures and checks during the production stages of any job. Introducing such a system certainly helps to filter out the possibility of a mistake being made.
There are many printing companies that do not have formal QA systems but provided employed personnel thoroughly follow the traditional house practice then mistakes made within firms should be reduced to an acceptable level. An industry benchmark that can be applied is to assess the job spoilage/rework level and if the total figure falls below one percent of the annual financial turnover this can be considered acceptable but of course continuous efforts should be made to reduce spoilage to a zero amount. However, spoilage above one percent is not considered acceptable and remedial action should be taken to bring this figure down. Some companies do not formally record their own spoilage rate and quickly reprint work that has been rejected without noting the costs and in such instances if a few jobs were subject to reprint the financial implications for the firm could be potentially serious.
It is particularly important to cost all spoilt work, as the cumulative total amount for rework must be included within the firms financial account's and if the annual figure is substantial the projected profit margin could be adversely affected. During periods of intense competition a firms profit margin are slim and any additional costs incurred over and above the budget forecast will impair the financial results.
Despite the best efforts of printing companies an error on occasions can occur, which can lead to a dispute with a customer that if not resolved through mutual negotiation can result in very expensive litigation. Some companies insure against such risks but many firms have to fund the costs of litigation from their own resources, which can adversely affect their cash flow over a period.
In the event that a resolution cannot be found it will then be necessary for the instructing solicitors to find an independent and qualified printing expert, who would be asked to assess the disputed printed materials or equipment before preparing a detailed report for the court. Dependant on the financial value of the claim, amounts generally below £15,000 can be dealt-with by a single joint expert who would act for both the Claimant and the Defendant, although the expert's first duty is to the court. This means that the opinion expressed within the written report must be independent, fair and reasonable after careful assessment of the disputed materials or equipment and also taking careful account of the pleadings and documents provided by both parties to the action.
For example if the expert is acting in a joint capacity for both parties involved in the dispute it can be appreciated that in such circumstances an independent and completely unbiased report should be produced, as the expert is privy to all information and documents pertaining to the dispute. In addition the instructing solicitors would have jointly prepared the formal written instruction prior to appointment of the expert.
When the expert has been appointed a timetable or schedule would normally be provided requiring the expert to complete the report by a given date. This is because the solicitors need time to consider the implications of the report and to also allow time for the parties to negotiate prior to the date of a formal court hearing. Dependent on the expert's opinion as contained within the report there could be a settlement agreed between the respective parties without a formal court action. However, without a mutual agreement a court hearing would proceed as per the schedule.
In the event that no settlement can be negotiated then court proceedings would then be commenced and after the respective Counsel's have opened the case the single joint expert would be called to give evidence. The expert witness would give oral evidence based on the opinion expressed within the written report and would also be cross-examined by both Barristers. Other witnesses of fact would be called in support of both the Claimant and the Defendants before the closing speeches from the Barristers. The judge after hearing all the evidence may summarise the case and give judgement to either the Claimant or the Defendant in the action or could decide to reserve judgement to a later date and this is dependant on the complexities of the case heard.
The single joint expert will receive his professional fees, which would have been equally divided between both the Claimant and the Defendant and would normally be paid through their respective solicitors.
There are cases where the claim is substantially more than the £15,000 and in these circumstances an independent expert is likely to be retained by both the Claimant and the Defendant. This means that instructions received are not jointly agreed because they are retained by one of the parties to the action only. Nevertheless, the expert's first duty is to the court even though the instructing party is responsible to pay the whole amount of their expert's fees. Therefore, any opinion expressed within the report is required to be fully independent, fair and unbiased.
On completion of the report there may be queries raised by the instructing solicitor, which could require an amendment to certain findings as contained within the report prior to formal exchange of both experts' reports. In these circumstances both experts' will generally be requested by the instructing solicitors to comment on the opponents report as any valid point could help with the following negotiations. Both experts would also be expected to meet to discuss their respective reports to try and narrow the issues by finding areas of joint agreement. A joint supplementary report would then be prepared and signed by both the experts, which would contain those areas of agreement and also areas of disagreement.
Given the completion of the experts' reports including the supplementary, both instructing solicitors would arrange to meet and discuss the implications of the independent experts' reports to endeavour to find a settlement that would avoid the high costs and risks of a court action. In the event that no agreement can be reached then court proceedings would be commenced as per the scheduled timetable.
It is clearly in the interests of the respective parties to find if possible a basis for settlement and instructing an independent expert may well help the parties to concentrate on the key issues so that an agreement perhaps can be reached. In the absence of an agreement court action is seen as the final solution but the length of time required to bring an action and the costs associated is substantial. Claims above the limit for the Small Claims Court £2,500 would be heard in the County Court and a two year time frame is not unexpected and for major cases, hearings in the High Court can take appreciably longer.
Expert witnesses who are familiar with the printing industry and are experienced in dispute work, including the preparation of independent reports and giving evidence in court should be retained. Such experts can be located through the Law Society Register of Experts, also from printing trade associations including the BPIF, the Institute of Paper Printing & Publishing (IP3) and suitably qualified independent consultants.
Obviously printing companies unfortunately embroiled in litigation would be advised to retain professional help from an expert as it is important to obtain an independent objective opinion to balance the understandable emotional reaction that can cloud the central issues of a dispute.
Peter J Wade MIP3