Experts instructed by litigants in person
With the anticipated growth in the number of litigants in person, what difference does a litigant in person make to the instruction of an expert witness?
As has been widely heralded, the legal aid cuts being introduced in April 2013 will largely remove public funding for private law proceedings (that part of our civil law system that involves relationships between individuals, e.g. the law of contracts). This, coupled with the current poor economic climate, will almost certainly lead to a huge increase in the number of people who choose to represent themselves in legal proceedings rather than retaining expensive lawyers.
With this anticipated growth coming on top of cuts in spending and staff, the courts and legal groups have expressed varying degrees of horror at what this will mean in practice. But what difference does a litigant in person make to the instruction of an expert witness?
Given that a litigant in person is authorised to instruct an expert witness and call expert evidence, there is a greatly increased risk that the accuracy and quality of the instructions will fall below that normally to be expected (although even the general quality of instructions from lawyers has fallen in recent years).
An expert witness who might not be familiar with court practices and procedures will not have the guidance and assistance of an instructing solicitor, and may also be without the benefit of costs warnings. Since Jones -v- Kaney and Phillips -v- Symes, solicitors have known that it is important to warn expert witnesses they instruct that a costs order could be made against them if they are found to have ‘acted recklessly or in flagrant disregard’ of their duties to the court. The court in Phillips said that experts should be referred by the instructing solicitor to the relevant sections of the Civil Procedure Rules and the declaration that experts must sign. Clearly, without an instructing solicitor, the novice expert could be in some jeopardy.
One only hopes that the ‘leeway’ the courts will give litigants in person will extend to the experts they instruct. In any event, experts instructed by litigants in person should avail themselves of the right to seek guidance from the court on any aspect of their instructions or procedure about which they are unsure.
The rules in some courts do provide for assistance to be given by solicitors and counsel for the other parties, and this is something that is likely to become more prevalent. The Admiralty and Commercial Court Guide, for instance, states that:
‘... where a litigant in person is involved in a case the court will expect solicitors and counsel for other parties to do what they reasonably can to ensure that he has a fair opportunity to prepare and put his case.’
Chapter 15 of the Chancery Guide includes a section on litigants in person. It specifies that, while it is not the function of court officials to give legal advice, they will do their best to assist any litigants. Furthermore, representatives for other parties must treat litigants in person with consideration. It is possible, then, that the court might consider it reasonable that some assistance be expected with some aspects of the expert evidence and the expert’s instructions.