Guidance for the Instruction of Experts

The Civil Justice Council has published revised guidance for the instruction of experts in giving evidence in civil claims. Whilst there is little new of substance, the publication of the guidance serves as a useful reminder of some of the key issues which need to be considered by both those instructing and the expert himself. The guidance is expected to be annexed to Practice Direction 35. The objectives underpinning the instruction of experts remain to:

  1. Encourage the exchange of early and full information about the expert issues involved in the prospective legal claim;
  2. Enable the parties to avoid or reduce the scope of litigation by agreeing the whole or part of an expert issue before the commencement of proceedings; and
  3. Support the effi cient management of proceedings where litigation cannot be avoided.  

Above all else, whilst experts owe a duty of reasonable skill and care to those instructing them, they have an overriding duty to the court, over and above the obligation to those paying them. The guidance states that if an expert has previously acted in an advisory capacity, “they will need to give careful consideration as to whether they can accept a role as expert witness” bearing in mind the need to ensure there is no confl ict between their advisory role and their duties to the court as an expert in proceedings.  

For example, those instructing experts must not do so in such a way as to encourage experts to avoid reaching agreement or to defer doing so. An expert cannot ignore arguments raised by the “other side”. Where there are material facts in dispute, it is said that experts should express separate opinions on each hypothesis put forward. It is also suggested that those instructing experts should seek to agree, where possible, the details of the instructions for the experts, which should include any diff erence in the factual material that they are to consider.  

Conditional or contingency fee arrangements remain prohibited, as this goes against the presumption of independence and objectivity. The new guidance states that the court may require experts to provide an estimate of their costs, and that the expert’s fees and expenses may be limited by the court. Experts should also be aware that any excessive delay or failure to comply with court orders may result in adverse costs orders.  

Finally, the guidance suggests that a useful test of independence is whether the expert would express the same opinion if given the same instruction by the other side.