As I look back over the past 40 years, the expert witness has too often been the Achilles heel of the criminal and civil justice system. This is a matter on which Lord Justice Auld has had a lot to say in his review of the criminal courts.

The first problem is deciding whether or not a witness has sufficient expertise to qualify as an expert witness; a witness who is entitled to give evidence of opinion as opposed to evidence of fact.

There is no requirement to be registered as a competent witness in the expertise in question or to have any specific qualifications. Even where an expert is highly qualified in their field it is astonishing how often they will tender evidence that falls outside their area of expertise.

The most remarkable example of this was during the Ian and Kevin Maxwell's trial. An issue arose as to how [their father] Robert Maxwell died. This surprising issue was introduced by the defence, who were anxious to show that Maxwell's death was accidental rather than suicide.

A doctor's report was put in evidence, which was supposed to address the implications of post mortem pathology. To my astonishment, it had a long section expressing the opinion that Robert Maxwell's yacht probably had a platform close to the water level to facilitate water sports from which he might have fallen into the sea. When I asked about his qualifications in naval architecture that section of his report was withdrawn.

The fact that there is no professional register of accreditation is a matter on which Lord Justice Auld comments in his report. He draws attention to the plethora of non-governmental bodies to which expert witnesses can belong – the Forensic Science Society, The Academy of Experts, The Society of Expert Witnesses, the Expert Witness Institute, The Council for the Registration of Forensic Practitioners and other associations of experts from particular disciplines. He suggests that all these bodies should join forces to set or oversee standards, maintain a register of accredited forensic scientists in all disciplines and regulate their compliance with those standards.

Auld views the Council for the Registration of Forensic Practitioners as a strong candidate for a co-ordinating role. A single register of competence of forensic experts in all the various disciplines is a wonderful concept. The nature of the relationship that might be formed between the Council and the various associations of expert witnesses would be a matter for discussion. I would welcome a reduction in the number of associations of expert witnesses by amalgamation. For the time being, if the council is to play a central role in accreditation and regulation this is more likely to be achieved by co-operation between the various bodies rather than anything more intimate.

The next topic considered by Lord Justice Auld is the most interesting: the manner of presentation of expert evidence.

Sir Robin introduced this section of his report by referring to "the seeming absurdity in our present system of entrusting to a tribunal – whether judge, magistrate or jury – unversed in a particular discipline, the task of determining which of two conflicting experts is right".

Professor John Spencer of Cambridge University says that the French tackle this problem much better than we do. In a recent article, he concluded that the French system of court appointed experts appeared to avoid the pitfalls of the English system. The French experts "are usually said to be of good quality and unbiased so that the conclusions of the expert can as easily prove an unpleasant surprise for the prosecution as they can for the defence".

He went on to say that "the French judiciary trust their system and are eager to invoke the help of experts in areas where their English brethren distrust them. For example, French courts often employ psychological experts to advise on the credibility of witnesses."

I have seen such evidence being given in a French court. It was in a rape case. The first witness was a psychiatrist who gave evidence that he had examined the defendant and concluded that he had just the kind of personality that would predispose him to commit to rape. The English judiciary was wise to exclude this type of expert evidence.

I have dwelt on criminal law because the Auld Report has important implications for experts, but also because the problems that he was addressing also arise in the civil field. How do you ensure that expert evidence is objective, proportional and reliable?

The Civil Procedure Rules (CPR) do their best. They direct that the duty of an expert to help the court overrides any obligation to the person instructing and paying the expert. The expert's report has to contain a statement that they understand and have complied with their duty to the court and must be verified by a statement of truth.

I doubt whether any provision of the new rules in relation to expert evidence was more controversial than that which empowered the court to direct that expert evidence should be given by a single joint expert and to direct how that expert should be selected. Many feared that this was going to result in trial by experts. These fears have not been realised.

I believe that the power is an invaluable tool in achieving proportionality where the claim is relatively modest and the issue is not one of starkly competing contentions but of degree, such as the effect of a whiplash injury. Decisions of the Court of Appeal in Daniels v Walker and Oxley v Penwarden have shown that the courts will not readily insist on the appointment of a joint expert in relation to an issue that is likely to resolve the action in favour of one party or the other.

Another controversial rule, Rule 35.10(3), provides that the expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

The statement should summarise the facts and instructions given to the expert that are material to the opinions expressed in the report or upon which those opinions are based. In BCCI v Arley Mr Justice Lightman ruled that no privilege attached to witnesses statements or notes of oral information provided to an expert at interviews conducted by him for the purpose of preparing his report.

A difficult area is whether privileged instruction given to an expert before proceedings are commenced is stripped of that privilege if the expert subsequently prepares a report that is tendered as evidence in court proceedings.

In the US, where such material would be disclosable, a practice has developed of having two sets of experts; one to give advice and the other to give evidence. It would be unfortunate if such a practice were to develop in this country, although this would certainly increase the demand for the services of experts. Disclosure is an area where it is possible to be much more radical in the civil field than in the criminal field.

The CPR contain important provisions designed to identify common ground and refine the issues between the expert witnesses. They do not deal with the use of experts at the trial itself. Our form of adversarial trial process operates unsatisfactorily in relation to expert evidence.

The sequential calling of experts first on one side and then on the other, with lengthy cross-examination that is often aggressive, is not the most efficient way of illiciting expert assistance for the court.

There is a case for using expert witnesses almost as if they were assessors. As a judge, I would like to sit at a round table with both sets of experts and counsel to discuss the issues in the first instance in an inquisitorial rather than adversarial fashion. Counsel would then ask supplementary questions. I adopted the round table formula in the BSE Inquiry and it was a success.

A prime object of the CPR has been to reduce the cost and the complexity of civil litigation, which in theory should spell bad news for lawyers and forensic experts. If disputes are to be fairly resolved, even by alternative dispute resolution, lawyers and experts will have an essential role to play.

Experience to date suggests that if the consequence of the new rules is not boom it certainly will not be bust.

This is an edited extract of the speech given by Lord Phillips, Master of the Rolls, to the Bond Solon Expert Witness Conference on 9 November.