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  Scoping reports

What are ‘Limited Screening Reports’ and should experts have any truck with them?

A call to the UK Register of Expert Witnesses helpline raised a question about a ‘Limited Screening Report’ (LSR) that had subsequently been served in litigation. An LSR is a report written very early in a case, well before court proceedings have been issued, and based on limited information. Its purpose is to help a solicitor gain an early indication of the expert issues.

We have long been advocates of these sorts of ‘scoping report’ because, being undertaken very early in the process, they ought to be able to better focus the use of expert evidence should a case proceed.

If you do write one, though, it is important to understand that you are being instructed as an expert advisor rather than an expert witness. As such, you do not owe an overriding duty to the court because you are not instructed under Part 35 of the Civil Procedure Rules (CPR). You are simply a paid advisor to the party. You could, therefore, expect to be giving the party professional advice on how best to present the case – something an expert witness should never do. For this reason, it can sometimes be difficult to make the transition from expert advisor to expert witness should the claim move forward.

Any report prepared as an expert advisor should be clearly marked as ‘not for the court’ so that it cannot be deployed in litigation. Of course, the party can still use it as a bargaining chip in its negotiations.

However, any attempt to drag the expert into CPR-compliant work (e.g. answering questions) on the basis of the scoping report must be resisted. The move from expert advisor to expert witness proper (i.e. one instructed under CPR 35) must be carefully considered and formally agreed. It is inevitable, in my view, that such a move will involve the writing of a second, CPRcompliant report.

It is gratifying to see that in the new civil guidance (see www.jspubs.com/Experts/library/lib_g4e.cfm) the contrasting roles of expert advisor and expert witness are given due prominence.

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Issue 87
May 2015

Scoping reports
Changes to CPR
New criminal practice direction


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