Summer 2014 has been a busy time for developments in the expert witness field. Two new documents have been published that it is worth being aware of.

Revised Civil Justice Council Guidance for CPR 35 to be introduced shortly

In August 2014, the Civil Justice Council (CJC) published the Guidance for the Instruction of Experts to give evidence in Civil Claims. The 2014 Guidance is due to be formally adopted shortly. Although it has been included in the Autumn edition of the White Book, it has not yet been formally adopted by the Civil Procedure Rules Committee. Be aware that the version currently included in the Autumn edition of the White Book differs slightly from the published version of the Guidance on the CJC website at the link above. When the 2014 Guidance is adopted it will replace the Civil Justice Council Protocol for the Instruction of Experts to give Evidence in Civil Claims (annexed to PD 35).

Key changes

Key new provisions and changes in the 2014 Guidance will include:

  • Advisory experts approached to act as expert witnesses will now need to ensure that there is no conflict between their advisory role and their duties to the Court when considering whether they can accept a role as expert witness.  
  • The experts’ joint statement should now include an express statement that the experts have not been instructed to avoid reaching agreement on any matter within their competence.  
  • Clarification is provided that discussions between expert witnesses should not be used as a vehicle for settling proceedings.  
  • An increased focus on experts' costs and an emphasis on the importance of ensuring that the work carried out and costs incurred remain in proportion to the value and importance of the case to the parties. In addition, clarification is provided on the calculation of experts' fees and what evidence should be provided to the Court with the accompanying warning that the Court may limit experts' fees.  The prohibition of experts' fees being conditional on the outcome of the case is removed albeit with the reminder that such practice is strongly discouraged.   
  • As with the instruction of joint experts, parties instructing separate experts should try to agree the details of the instructions for the experts and should ensure that the experts receive the same factual material for consideration.   
  • A reminder that expert witnesses are under an obligation to revise their opinion if the facts change.  
  • Reference is made to the practice of "hot-tubbing" with the reminder that experts need to be told in advance of the trial if there is a need for concurrent evidence.   
  • A reminder of the current sanctions in place for failure to comply with CPR 35, PD 35 or Court Orders.    

Some thoughts…

The new 2014 Guidance does not differ greatly from the Protocol however, if you have not already done so, we suggest that you read the new Guidance now to become familiar with the new provisions. As before, the Guidance does not apply to experts who are instructed only to advise, rather than to prepare evidence for use in proceedings however, it will apply if an advisory expert is later instructed for the purposes of the proceedings.

Fourth edition of RICS Guidance on Surveyors Acting as Expert Witnesses

The fourth edition of the RICS Guidance on Surveyors Acting as Expert Witnesses (subscription required) is effective from 2 July 2014.

The Guidance is written for surveyors who provide expert evidence to be relied upon in civil proceedings before a wide range of tribunals. It comprises a Practice Statement and a Guidance Note. Compliance by RICS' members with the Practice Statement is mandatory conversely compliance with the Guidance is not mandatory although it is intended to represent best practice. 

Key changes

Key changes from the third edition of the Guidance include:

  • Prohibition on an expert’s appointment taking the form of a conditional or success-based arrangement (subject to limited exceptions such as when the expert is performing a dual role).   
  • Substantial changes to the sections on reports and oral evidence with an emphasis on maintaining professional objectivity and impartiality.   
  • Amendment of the Expert's Declaration to reflect CPR 35.  
  • Clarification of the circumstances in which an expert may (and may not) change his mind.   
  • Further guidance on the implications of a surveyor acting as both expert and surveyor-advocate.  
  • Clarification of the status and application of the Guidance Note.  The key message being that the Guidance Note should be read in conjunction with the Practice Statement, providing direction on “good practice” when an expert is required to give expert evidence before a tribunal.  
  • Key amendments to the Guidance note include the expansion of the expert's general duties with the emphasis on independence and impartiality.  Additional guidance has been included on resignation of experts, instructions and inspections, opinion evidence, oral evidence, written reports, experts meetings, conditional fee arrangements and fees.   

Some thoughts…

If you are a RICS' member and a surveyor acting as a witness then you should have regard to the requirements of this Practice Statement and Guidance Note (keeping in mind that compliance with the Practice Statement is mandatory for RICS' members). Expect to see an obligation in your expert instructions to require your compliance with the Practice Statement and Guidance Note as an express obligation.