Knowing me, knowing you

In 2005, the Civil Justice Council issued the Protocol for the Instruction of Experts to Give Evidence in Civil Claims, aiming to give guidance to those instructing experts as well as to experts themselves as to what they are expected to do in civil proceedings. The protocol, since amended in 2009, was intended to serve as an aid to the interpretation of part 35 and the Practice Direction of the Civil Procedure Rules.

The salient points from the viewpoint of the instructing solicitor are paragraphs 6 and 7, which spell out the need for instructing solicitors to ensure that their experts have the necessary expertise, experience and training appropriate to the case, and also to establish, before issuing instructions, that their experts are familiar with the general duties of an expert.

These requirements are not without teeth: failure to comply may be penalised

in a number of ways, including adverse costs orders, time limits and even a stay of proceedings. Although intended as a guide, the protocol is silent on how those instructing experts should ensure they comply with their obligations.

Fortunately, recent changes to the rules provide further guidance. In October 2009 changes were made to the Civil Procedure Rules, spelling out in much more detail what the duties of an expert are, and giving them more guidance on their role. Consequently, it is less difficult for instructing solicitors to know what is expected of them, in terms of the protocol, and easier to identify circumstances which suggest that an expert is not as conversant with his duties and role, which may cause his instructing solicitor to review their relationship.

Objectivity and impartiality

So, what should the instructing solicitor be reasonably able to expect from his expert? Without doubt, a clear understanding of his duties and role, demonstrated throughout the process in his written evidence, his conduct and his oral testimony.

Overwhelmingly, this must be founded on an understanding of the overriding duty to the court, as opposed to those instructing him. However, the overriding duty has a multitude of diverse implications. While the duty itself is not new, what is new is the mandatory requirement for experts to include in their reports a declaration that they are aware of the rules, and therefore, in effect, of the implications and practical effects of that duty.

Perhaps the most important of these implications is the duty to be objective. The expert is bound to give unbiased, objective opinion, and to maintain professional objectivity and impartiality at all times, rather than serving the exclusive interests of those instructing them. The instructing solicitor should therefore beware of the expert who blindly accepts the case without question or challenge, without testing the merits of the opposition case, and should be suspicious of the expert who approaches his role in this way.

An important corollary is the duty of the expert to maintain an open mind, to change his mind when appropriate and to communicate that change of mind at the earliest possible opportunity.

The first occasion on which the instructing solicitor might be alerted to any partiality on the part of his expert is on receipt of the expert's first report. That report should set out all the facts; not only the facts submitted by those instructing him, but all of the opposing facts and any facts which the expert, as part of his duty, has established in the course of his investigation. As well as setting out all relevant facts, the expert is expected to give his opinion separately on each set of facts put before him. A failure to do so will make it difficult to argue that the report is truly objective and unbiased.

The report should make a clear distinction between facts and opinion evidence, not simply to avoid any confusion on the part of the reader but for the benefit of the judge whose role in relation to the two is quite different. He can choose which of the facts he finds more probable without expert guidance, then can decide which of the conflicting opinions on those facts he accepts.

Court compliant

A fundamental requirement of any report is that is must be court compliant. Every expert must be aware of the requirement to include in their report the mandatory new statement of truth, the statement of compliance and the new declaration of awareness. Any expert who signs the declaration of awareness without having the requisite knowledge would face ruthless and damaging cross-examination. Of course, his solicitors are likely to have ensured that appropriate amendments are made before service of the report, but basic errors like these will ring alarm bells as to the professionalism of the expert in question.

Expertise and experience

Returning to the issue of the expert's expertise and experience, which, according to the protocol, are matters on which the instructing solicitor must satisfy himself before issuing instructions.

This may not present too many difficulties for the instructing solicitor, particularly when the issues are clear from the outset and where the solicitor and expert have worked together previously.

However, in contrary circumstances, or where the issues change as the case progresses, the solicitor is reliant on the expert to inform him at the earliest opportunity if he is no longer able to act, as the issues in the case are now outside his area of expertise, and require a different expert with a different area of expertise to be instructed.

Meeting of minds

Another specific aspect of the expert's duty relates to his participation in meetings and discussions. It is reasonable for the instructing solicitor to expect his expert to understand what is required of him when instructed to attend meetings and discussions, the purpose being to identify the issues and, where possible, reach an agreed opinion, to identify areas in dispute and to suggest actions to resolve such disputes; for example, further scientific testing, further meetings and the like.

In addition, while the primary responsibility for drafting an agenda rests with the solicitors, often, where there are a large number of technical issues, the experts must engage and cooperate in the preparation of the agenda.

Following the meeting, and within seven days, the expert should sign and send to his instructing solicitor a list of the issues agreed and not agreed, any matters discussed that were not on the agenda and proposals for action steps to resolve outstanding disputes.

Experts must not, in any circumstances, try to settle the case, and any evidence or suggestion that the expert has strayed outside his role in this way must receive immediate attention.

Single-joint experts

Finally, the recent changes to the rules meaning that only single-joint experts will be allowed in small claims and fast-track claims may result in some experts being appointed as single-joint experts for the first time. It is essential that experts understand the differences in that role compared to the role of an expert acting for one party alone.

While it is highly unlikely that a single-joint expert will be required to give oral evidence, it must be appreciated that the court places sole reliance on his evidence and consequently expects the highest standards of professionalism.

Instructing solicitors should be alert to the need for all communications between the single-joint expert and those instructing him to be common. All correspondence, written answers to questions and reports must be copied to all parties simultaneously if an argument of unfair advantage is to be avoided, and all parties must be informed of any individual steps taken by the single-joint expert.

The changes to the Civil Procedure Rules are undoubtedly more onerous as far as expert witnesses are concerned. Their duties, roles and responsibilities are set out in a more detailed way than ever before.

However, the double edge to this sword is that those instructing experts must now be more aware than ever of their duties and responsibilities in selecting the most appropriate expert and monitoring his conduct and compliance with the rules throughout the case.