This week the Civil Justice Council published its Guidance for the Instruction of Experts in Civil Claims 2014, which will come into force when annexed to Practice Direction 35 of the Civil Procedure Rules this autumn. The Guidance will replace the 2005 Protocol and emphasises the effect of the Jackson Reforms, Mitchell and the new cost budgeting rules on dealings with experts.
While the Guidance does not depart significantly from the 2005 Protocol, it contains some noteworthy additions and reminders, which are important for those acting as experts and those instructing experts to know. The key changes are, in summary, as follows:
1. Expert’s Fees
While the 2005 Protocol stated that contingency fees for experts “must not be offered or accepted” upon the nature of the evidence provided or the outcome of a case, such arrangements are now only “strongly discouraged”. This reflects the changes post Jackson, in which contingency fee agreements became legal in most civil business.
However, quoting Factortame (No 8) (where an agreement to pay an expert accountant 8% “of the final settlement received” was deemed to be champertous and therefore unenforceable), the Guidance makes it clear that “it will be a rare case” where an expert could be instructed under a contingency fee agreement. It would be prudent to wait for precedents to be established before agreeing to settle experts’ remuneration in this manner.
Following the wider use of court budgets and the surrounding case law after Jackson, the Guidance seeks to ensure that an expert is aware of any such budgets by:
- Explaining in their appointment that fees and expenses might be limited as part of any order for budgeted costs; and
- Stating in their instructions whether a budget has been allocated for their fees.
3. Concurrent Expert Evidence
The Guidance reminds the reader of the court’s power to order experts of similar disciplines to give their evidence concurrently in a practice known colloquially as “hot-tubbing”, as provided in CPR PD 35. While this procedure is not yet commonplace (at least in domestic court proceedings), it is a reminder to experts to be aware of this practice, and prompts instructing solicitors to bear this in mind when choosing an expert.
4. Relief from Sanctions
In a nod to Mitchell, the concluding section of the Guidance reiterates that sanctions might arise following a failure to comply with the CPR and associated Orders. To ensure that experts are aware of the severity of the new regime, the Guidance explains that court has power to impose cost penalties, rule that an expert’s report and/or oral evidence is inadmissible, or impose criminal sanctions arising from contempt of court or perjury.
While the new Guidance is by no means ground breaking, once in force it should ensure that parties are informed of the impact of recent changes to civil procedure in the hope of avoiding any costly surprises.