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New Guidance on Use of Experts in Civil Proceedings

Posted on 26/07/2012 · Posted in Expert Witness

The Civil Justice Council has recently published Guidance for the instruction of experts to give evidence in civil proceedings (the “New Guidance”). The New Guidance is yet to be considered by The Civil Procedure Rule Committee, but is likely to soon replace the Protocol for the Instruction of Experts to give Evidence in Civil Claims 2005 (the “2005 Protocol”) and be annexed to CPR 35 and its Practice Direction.

The New Guidance sets out best practice to be followed if the requirements of CPR 35, its Practice Direction and the overriding objective are to be met. It is applicable only where experts act as expert witnesses, i.e. where the expert gives an opinion to be relied upon in proceedings. The New Guidance is not applicable where an expert is instructed to purely give advice, unless and until that expert advisor becomes an expert witness.

The New Guidance shows a new approach on the part of the Civil Justice Council to giving guidance. The New Guidance is organised into three parts: the first contains guidance for litigants and instructing parties; the second contains guidance for experts; and the third contains guidance on specific issues such as single joint experts, sanctions and contingency fees. This approach provides the different participants in litigation with  clear and concise guidance on how to conduct themselves in their particular role.

Substantively the New Guidance differs from the 2005 Protocol only in minor respects.

Substantive changes for litigants and instructing parties include:

  • Terms of appointment should include the information that the court may require the expert to provide an estimate of their charges [para 2.2.2.4] and the information that fees and expenses can be limited by the court [para 2.2.2.11].
  • Parties instructing experts should seek to jointly agree the details of instructions given to the experts, including any differences in the factual material to be considered by the experts [para 2.3.2].
  • A solicitor, with the aim of avoiding the need for directions from the court, should consider with its experts whether written questions on a disclosed report are properly for the purpose of clarification of the report, are proportionate and have been asked within the allowed time [para 2.5.2].
  • Those instructing experts should inform other parties of amendments to the expert’s report because of a change of opinion as soon as possible [para 3.8.4].

Substantive changes for experts include:

  • When determining whether to accept the role of expert witness, the expert must consider whether the instructions and/or work will place them in conflict with their duties as an expert [para 3.3.1.4].
  • If it comes to the expert’s attention that its instructions differ from those given to another expert, it should inform its instructors [para 3.3.3].
  • When accepting instructions it is advisable to agree the terms on which the expert will be paid [para 3.3.4].
  • When asking the court for directions, the expert’s request should be clearly marked “expert’s request for directions” [para 3.5.2].
  • It is for the expert to satisfy himself that he has access to all of the information which is available to other experts and other parties. The expert must confirm he has full access and continue to monitor the situation throughout proceedings [para 3.6.1].
  • When drafting the report the expert should have primary regard to his instructions [para 3.7.12].
  • Where there is sequential exchange of experts’ reports, the defendant’s expert’s report will be produced as a response to the claimant’s expert report [para 3.7.17]. The defendant’s expert’s report should state whether the expert agrees with the background set out in the claimant’s expert’s report and state out any revisions considered necessary [para 3.7.17.1]. The report should seek to focus on areas of material difference between the defendant’s and claimant’s experts’ opinions [para 3.7.17.2]. There should be a reconciliation between the claimant’s expert’s loss and assessment and the defendant’s expert’s [para 3.7.17.3].
  • If parties fail to do so, experts themselves can ask the court for directions on written questions [para 3.9.3].
  • The purpose of the experts’ discussion is not to reach settlement [para 3.10.1].
  • The joint statement produced must include a re-statement that the experts understand their duties and a statement that they have not been instructed to avoid reaching an agreement of opinions [para 3.10.4].

Substantive changes for specific issues include:

  • Good practice is to be encouraged and regard is to be had for the fact that sanctions can be imposed for failure to comply with CPR 35, its Practice Direction, and court orders [para 4.4.1]. Where proceedings have not yet commenced professionals may be subject to sanction by their professional body/regulator and the court has the power to impose cost sanctions [para 4.4.2]. Where proceedings have commenced: professionals may be subject to sanction by their professional body/regulator [para 4.4.3.1], the court has the power to impose cost sanctions [para 4.4.3.2], the court has the power to rule that the expert’s report is inadmissible [para 4.4.3.3], the court has the power to imprison any wrongdoer for contempt in the face of the court [para 4.4.3.4] and the court has the power to impose criminal sanctions for perjury [para 4.4.3.5].

Link: Guidance for the instruction of experts to give evidence in Civil claims

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Disclaimer: The above summary is derived from publicly available information and is not intended to be anything more than a statement of the author’s views on the salient factors of the guidance. It is not intended and should not be understood to be legal advice of any sort. All views are solely those of the author and no use of the summary should be made without statements being checked against the source of information. Expert Evidence Limited takes no responsibility for the views expressed. The copyright of the summary is owned by Expert Evidence Limited but may be used with written permission which may be forthcoming on application through the contact us page. This news item is not intended to imply or suggest that Expert Evidence Limited was involved in the creation of the guidance, only that it is considered an interesting legal development.