It cannot come as a surprise that the revised Guidance for the Instruction of Experts in Civil Claims, published by the Civil Justice Council last month, has a definite flavour of Jackson about it.
Originally drafted in 2012, the new version will replace the 2005 Protocol for the Instruction of Experts to give Evidence in Civil Claims(amended in October 2009) with effect from Autumn 2014. Whilst it is snappier and better formatted, its substance is largely unchanged from the earlier version. What does come across however, is a hawk-like focus on costs and proportionality, which litigators would be foolish to ignore.
BACK TO BASICS: EXPERTS’ DUTIES
The Guidance supplements the detail of the Civil Procedure Rules, Part 35. Its purpose is to assist litigants, those instructing experts and experts to understand best practice in complying with Part 35 and court orders. It emphasises the experts’ overriding duty to the court (rather than to the party instructing and paying them) and the need for impartiality; it sets out the format of their reports, and it explains how to deal with subsequent questions and discussions between experts.
The Civil Justice Council have highlighted just three new paragraphs, none of which are particularly controversial:
- Paragraphs 31 and 61, which are designed to ensure experts are aware of the status of the documents disclosed to them for the purposes of their reports, eg whether witness statements are the most recent version and/or whether they are signed. This includes additional documents; and
- Paragraph 87, which requires the solicitor to update the expert as to whether the case has settled, or completed at trial. This seems perhaps an obvious point – but presumably it is a frequently expressed complaint from experts, for it to have been included.
From a practitioner’s point of view, the Guidance also provides some useful practice points, discussed in more detail below.
GETTING IT RIGHT
- Is expert evidence really required?
Expert evidence cannot be relied on at trial, and an expert cannot be called to give oral evidence, without permission of the Court ((CPR 35.4(1), Guidance paragraph 5)) – and this permission should never be taken for granted. The Guidance highlights (at paragraph 4) the statement at CPR 35.1 that permission will only be given where the expert evidence is “required to resolvethe proceedings” [emphasis added]. Parties must therefore be able to demonstrate that the expert evidence on which they seek to rely is fundamental to their case, particularly given the courts’ increased case management powers and heightened sensibilities regarding proportionality.
Parties must be able to provide the court with a clear list of the issues on which expert evidence is required when applying for permission. Again, the Guidance notes that, “Experts should be aware of the overriding objective that courts deal with cases justly and that they are under an obligation to assist the court in this respect. This includes dealing with cases proportionately (keeping the work and costs in proportion to the value and importance of the case to the parties), expeditiously and fairly” [emphasis added] (paragraph 10).
- Selecting and appointing an expert witness
Careful thought must be given to the identity of the expert, given the particular issues at stake. Can you justify instructing that particular individual in respect of this particular issue? Is he or she an established expert or a member of a relevant professional body? In Proton Energy Group SA v Orlen Lietuva, the commercial court was critical of an expert who had excellent knowledge of his field, but who, it transpired during the trial, had no relevant commercial experience in applying that knowledge. As it was issues of custom and usage with which the court needed the expert’s assistance, the expert‘s evidence was effectively disregarded.
- Changing an expert witness
On a related note, parties should be cautious of changing their expert mid-proceedings. The court will not give permission for new or multiple experts simply because the party does not like their evidence (often referred to as ‘expert shopping’), as this would be both expensive and disproportionate.
That said, in one recent case, where the original expert was retiring from his professional career, the court did allow a new expert to be instructed – even though there was also a suggestion that the retirement followed a failed mediation at which the original expert’s evidence had been criticised (BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another).
Likewise, even if permission for a further expert is granted, it is likely that the court will order disclosure of any expert reports gained previously, not just the most recent.
- Use of ‘expert advisors’
The Guidance discusses the use of ‘expert advisors’ rather than or as well as ‘expert witnesses’. An ‘expert advisor’ is an expert who has been instructed only to advise and not to prepare evidence for the proceedings. Neither Part 35 nor the Guidance apply to an expert advisor unless and until the expert advisor is formally instructed to prepare or give evidence in the proceedings (which, of course, also requires the prior permission of the court).
Expert advisors can be a useful strategic tool for a number of reasons:
- The use of an advisor before proceedings have been issued could help the claimant narrow down the issues forming the basis of the claim. This may limit the issues in dispute - ensuring that the proceedings are proportionate, and saving time and costs (all in furtherance of the overriding objective). In some cases it mayremove the need for an expert witness at all;
- There is no requirement to disclose an expert advisor’s report to the court or the other side. Indeed, unless permission is sought to later ‘convert’ the expert advisor into an expert witness, the expert advisor’s report will remain privileged throughout the proceedings. In a complex case, this can allow the party to be continually advised on a confidential basis by the expert advisor as to the issues and merits of their case.
- Lastly, the CPR now requires parties to have identified their proposed expert witness when applying for permission “where practicable” (CPR 35.4(2)(b)). In practice this is often at the Case Management Conference. Parties are also required to have built their expert witnesses’ fees into Precedent H, and their availability into the court timetable (including the trial window). Parties who have already appointed their proposed expert witness as an expert advisor will therefore be ‘ahead of the game’ and have the advantage of having secured their expert of choice.
Of course, the disadvantage of using an expert advisor is that you cannot claim the cost of their advice and/or informal report as costs in the case (because the court did not give permission for reliance). Nonetheless, assuming that this is clearly explained to and accepted by the paying party, the advantages may well outweigh this cost.
- Instructing an expert witness; practice and proportionality
Both the CPR and Guidance devote much detail to the instruction of single joint experts – noting that these will now be standard for all fast and small claims track proceedings.
However even for those parties following the more usual line of instructing an expert witness each, the Guidance makes it clear that there is no need for each expert witness to be given separate instructions: the parties could in fact narrow the issues prior to instructing the experts, and provide each expert with an agreed set of instructions and documents.
Again, even if separate instructions are given, it is vital that all expert witnesses must be provided with the same documents (CPR 35.9), to ensure that they are addressing the court from the same standpoint. Therefore, privileged documents should not be sent to the instructing party’s expert witness, unless that party is willing to disclose the document to the other side as well.
Interestingly, expert witnesses also have the power to ask the court for further disclosure, should they feel that to be necessary (Guidance, paragraphs 30 to 32).
As a side point, it is worth remembering that instructions to expert witnesses are potentially disclosable – whether those are written or oral. Any subsequent communications with or requests of the expert witness are also disclosable, for example, requests for the expert’s report to be amended.
- Good practice in exchanging reports
There is no set practice for exchanging reports – some prefer simultaneous exchange, others prefer to do this sequentially. There is much to be said for the latter approach, given the current focus on proportionality. For example, sequential exchange means that the expert witness who responds to the first report should limit their comments to just those points on which (s)he disagrees (paragraph 63(b)).
Once reports have been exchanged, expert witnesses are encouraged to discuss their conclusions, to further narrow the points in dispute before trial. These discussions typically take place after the reports have been exchanged. However, experience suggests that even though the experts may establish areas of common ground during discussions, they may not feel able to resile from the position they have adopted in their published reports. If discussions can take place earlier, for example before formal exchange but after the draft reports have been produced, it may be possible to build these points into the final reports and limit the issues to be resolved in court.
- Costs and proportionality
Above all, the number of experts, and the amount of work they undertake, must be in proportion to the value and importance of the claim. Experts are also required to produce their reports expeditiously and fairly (CPR 1.1, Guidance paragraph 10) - which will in turn affect the recoverability of the expert’s fee, in the event that their instructing client is successful at trial.
It is worth giving early attention to the recoverability of experts’ costs at the various stages of litigation, not least because of the current encouragement to settle proceedings as early as possible. Whilst clients may understand the need to instruct an expert early to provide focus in the case, they will be assuming that these costs will later be recoverable at trial.
However, if a claim settles before trial, the client’s satisfaction at having reached settlement may be tempered at subsequently having to settle the expert’s fees. In this event, it is likely that use of the expert witness will in fact have contributed to early settlement of the claim, by narrowing the issues and providing an independent view on the merits (ie the work will not have been wasted) – and this should be demonstrated to the client. But careful thought nonetheless needs to be given to recovering the expert’s fee within the terms of the settlement.
- Proton Energy Group SA v Orlen Lietuva  EWHC 2872 (Comm)
- BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another  EWHC 3183 (TCC)
This article was published in The Commercial Litigation Journal in October 2014.