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Latest guidance on acting as an expert – part 2

This post looks at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published last month and takes effect this autumn. In contrast to Surveyors acting as expert witnesses, which I discussed last time and which is aimed at RICS members and applies to any form of tribunal, the CJC’s guidance applies to an expert of any discipline who is instructed to act in court proceedings. It reflects the April 2013 Jackson reforms and replaces the previous version, which is currently annexed to PD35.

CPR 35, PD35 and the TCC Guide

Just to recap, CPR 35.2(1) states that a reference to an “expert” in CPR 35 is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings. The expert witness’s primary duty is to help the court, and this duty overrides any duty that the expert may have to those who are instructing or paying him (CPR 35.3).

In the TCC, expert evidence is dealt with by section 13 of the TCC Guide and is described as evidence about matters of a technical or scientific nature. It generally includes the opinions of the expert (TCC Guide, section 13.1.1).

CJC’s 2014 guidance

Although I have not carried out a paragraph by paragraph comparison with the previous version (revised in 2009), the 2014 guidance appears shorter and more focused than its predecessor. As with the 2009 version, it starts by explaining that its purpose is to assist litigants, those instructing experts and experts to understand “best practice” in complying with CPR35 and PD35 and any relevant pre-action protocol. In construction terms, that means the construction and engineering pre-action protocol.

Before looking at an experts’ duties and obligations, one particular point struck me. Paragraph 5 refers to the fact that, while the court’s permission is required for a party to rely on an expert’s report or call the expert to give evidence, no permission is necessary to instruct an expert. While it is common for those involved in construction disputes to appoint an expert early on, sometimes long before proceedings are started, it is easy to lose sight of this fact, especially as we all probably assume the TCC will expect an expert to have been instructed by the time of the first CMC.

Duties and obligations of experts

It is worth highlighting an expert’s duties and obligations, since they go to the heart of the guidance. Experts:

  • Owe a duty to exercise reasonable skill and care to those instructing them.
  • Should comply with any relevant professional code.
  • Have an overriding duty to help the court on matters within their expertise, which overrides any obligation to the party instructing or paying them. They must not serve the exclusive interest of those who retain them.
  • Should be aware of the overriding objective (in CPR 1.1)  that courts deal with cases justly and that they are under an obligation to assist the court in this respect. This includes dealing with cases proportionately, expeditiously and fairly.
  • Must provide independent opinions. A useful test of “independence” is whether the same opinion would be given to the other side, if they were instructing the expert.
  • Should not promote the point of view of the party instructing them or engage in the role of advocates or mediators.
  • Should confine their opinions to matters that are material to the dispute and provide opinions only in relation to matters which lie within their expertise.
  • Should take into account all material facts before them. They should indicate if an opinion is provisional or qualified.
  • Should understand the consequences of failing to comply with the rules or court orders.

Appointment and instructions 

Paragraphs 16 – 32 deal with an expert’s appointment, including preparing instructions, accepting those instructions, an expert’s right to seek directions from the court and information from the parties.

Although not new to the 2014 guidance, an expert must not “express an opinion outside the scope of their field of expertise”, nor accept the appointment (paragraph 24). The circumstances when an expert should withdraw are explained in paragraph 27.

Single joint experts

Although they seldom crop up in construction disputes, single joint experts are common in many other areas and are often ordered by the court as a way of keeping costs proportionate to the sums in issue. This may explain why so many paragraphs (33-46) are devoted to the topic.

Experts’ reports

Paragraphs 47-59 address the content and form of an expert’s report. This is in addition to the requirements in CPR 35.10 and  PD 35.3.

The main points from the guidance are that:

  • The expert should maintain “professional objectivity and impartiality at all times”.
  • Include a statement in the report confirming the duty to the court is understood, has been complied and will continue to be complied with. Also, that the requirements of CPR 35, PD 35 and the guidance have been complied with.
  • The expert should clearly separate questions of fact and opinion, and distinguish between facts known to be true and those assumed. If material facts are in dispute, separate opinions should be expressed for each hypothesis, but the expert should resist favouring one version over another version, unless they have good reason to hold that view.

In addition, experts should not be asked to “amend, expand or alter any parts of reports in a manner which distorts their true opinion”, but may be invited to do so to “ensure accuracy, clarity, internal consistency, completeness and relevance to the issues”. Their reports should not include any suggestions that do not accord with their views.

Without prejudice discussions between experts

Without prejudice discussions between experts are common before trial and, in the TCC, the court will order at least one meeting and expect to see a signed statement of agreement/disagreement. This is dealt with in the guidance in a number of ways, although the main focus is in paragraphs 68-81:

  • A meeting of experts is one occasion when it is permissible for the expert to change his mind and subsequently amend his report (paragraph 64).
  • Interestingly, the guidance suggests the purpose of the meeting is not to seek to settle proceedings (paragraph 69).
  • Experts should not accept instructions (from those instructing them) to avoid reaching agreement on an issue, or to defer reaching agreement (paragraph 75).

Other matters

The guidance discourages the use of contingency fees (paragraph 85) and refers to the judgment in ex parte Factortame (no8) [2008] QB 381, where the court said:

“we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement.”

On this basis, I’m not sure why the guidance doesn’t come out and say you can’t have one, just like the RICS guidance does.

The guidance concludes with a section on sanctions (paragraphs 86-89), highlighting some of the possible outcomes for an expert that fails to comply with CPR 35, PD 35 or court orders. In addition to a misconduct charge by the expert’s professional body, there could be costs sanctions against the expert and even, in an extreme case, a contempt of court charge or negligence claim.

You have been warned!

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