New expert witness guidance - Part 2
A guide to the revised guidance from the Civil Justice Council for experts, and those who instruct them, in civil litigation
The long-awaited update to the 2007 Protocol for the Instruction of Experts to give Evidence in Civil Claims (written by the Civil Justice Council; CJC) is now part of the Civil Procedure Rules (CPR). Renamed Guidance for the instruction of experts in civil claims, it leaves much of the original guidance in place but adds some new material in areas that have changed, or been introduced, since 2007. The entire document is available at www.jspubs.com/Experts/library/lib_g4e.cfm.
In this issue of the eWire we work through the new guidance, drawing out the key points for experts. So this is a refresher on the guidance that has not changed, and an introduction to the areas that have. References in the form §1 represent the paragraph number in the new guidance. New material is highlighted red.
In this second section we start by looking at an expert’s right to all information.
Access to all information
What should an expert do if it is felt that required information is being withheld? The advice has changed. Formerly, if, following discussions with those who instructed the expert, this wasn’t resolved, the expert sought direction from the court. Now, the guidance places a greater duty on the expert to identify both missing information and those cases where experts are working on a dissimilar evidence base. If such problems are identified, the expert is required simply to tell the instructing solicitor (§30).
There is also a new duty upon the solicitor to specifically alert experts if any documents being sent are updated versions of material sent previously, and to note whether they have been filed with the court and/or served on the other party (§31).
The expert’s attention is drawn to the power under CPR 35.9 for the court to require that information be disclosed by another party. In the 2007 guidance it was the responsibility of the expert to decide if the cost of obtaining the further information was proportionate. That was always a tall order for an expert with no legal training and who did not have conduct of the case! Now new guidance requires the expert to inform the instructing solicitor of what is needed and its significance to the expert issue. It is then, presumably, for the lawyer to decide on proportionality (§32). Any request for further information should be put to the expert’s own instructing solicitor in writing, and should set out why it is needed and its importance to the expert issues (§33).
Single joint experts
The standing assumption on using single joint experts (SJE) in small claims and fast-track cases remains (§34), with the aim being to agree or narrow issues that are not contentious (§35). The redeployment of a party-appointed expert as an SJE requires full disclosure of the expert’s prior involvement in the case (§36). The ability to appoint party experts to ‘shadow’ an SJE remains, as does the inability to recover any associated costs from another party (§37). The exhortation to parties to agree joint instructions for an SJE stays (§38). If that isn’t possible, then separate instructions can be given but the parties should then try to agree on their disagreements and set them out in the instructions (§39). What happens when the parties disagree on their disagreements is covered in a moment!
An SJE’s right to joint and several liability for payment from all parties remains (§40), although it is now a requirement that any order limiting an expert’s fee is copied to the expert (previously the expert was merely notified of the existence of such an order).
So what’s an expert to do when the parties are unable to agree on anything? The position remains unchanged. If left waiting for instructions, the expert can set a deadline (normally 7 days hence), after which work will commence. If that approach means a report is written that fails to take into account instructions received after the deadline, then that is acceptable but the expert must clearly disclose that limitation (§41).
Guidance on the conduct of the SJE remains unchanged. SJEs must keep all parties informed at all times (§42); they must have an equal duty to all the parties which is subservient to the overriding duty to the court (§43); and meetings with just one party (e.g. conference with counsel) must be agreed by all parties, as well as who is to pay the expert for attending such a meeting (§44). An SJE, like a party expert, may seek directions from the court (§45), while the SJE report should be served on all parties simultaneously (§46). It should be noted that even if there are multiple sets of instructions, only one report should be prepared even if it contains multiple opinions necessitated by conflicting assumptions of fact. SJEs remain open to cross-examination by all the parties (although the new guidance puts it as the milder ‘all parties may ask questions’) on the rare occasion that an SJE steps into the witness box (§47).
The content of the expert report is still governed by the instructions, the general obligations, CPR 35 and its practice direction, and the expert’s overriding duty to the court. But the need to follow any court directions is spelt out (§48). Objectivity and impartiality must be maintained (§49), and the report should be addressed to the court and comply with the CPR 35 guidance on form and content (§50).
Reference to various model forms of report are extended to include the template for medical reports created by the Ministry of Justice (§51). The mandatory statements to be included in a report have been expanded slightly. An expert must still understand his duties and comply, and continue to comply, with these duties. In addition, though, an expert must confirm his awareness of CPR 35, its practice direction and the CJC guidance (§52). Naturally, the statement of truth as set out in CPR 35 PD 3.3 must also appear in the report (§53). It reads:
‘I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.’
The guidance on defining qualifications remains unchanged (§54): the level of detail should reflect the complexity of the case.
Material instructions: Guidance about the mandatory statement on the substance of all material instructions remains, with the stress on transparency. If an expert is shown something that is relevant to his opinion, it must feature in the summary of instructions given (§55).
Tests: Unchanged from the earlier guidance, where tests are carried out, details of the methodology, and information about any technician who conducted such tests, must be provided (§56). However, the previous guidance on reliance on the work of others has been removed – presumably because it simply reiterated that found elsewhere in the update.
Facts: Facts must still be separated from opinion, and opinion must be linked to the underlying facts. Experts must distinguish those facts they know to be true from those they are asked to assume (§57). When it comes to the facts, the guidance adds stress to the point that experts must be guided primarily by their instructions – which is a warning to experts to restrict themselves to their letter of instruction.
Experts are still required to offer multiple opinions when the material facts are in dispute. In such cases, experts should only express a view that favours one version of the facts over others if they do so based on their expertise. Exactly why they hold such a view must be explained fully in their report (§58). Experts must cite the published sources that support their mandatory statement of the range of opinion (§59). When no source for the range exists, experts must still say what they believe the range would be (§60).
Service of the report: New guidance is given that before filing and serving an expert report, solicitors must check that any witness statements and other expert reports relied upon by the expert are the final served versions (§61).
Conclusions of the report: A summary of the conclusions is mandatory and is usually put at the end of the report. However, if the complexity of the case so demands, an ‘executive summary’ at the front of the report is permitted (§62).
Sequential exchange of expert reports: New guidance applies to the sequential exchange of reports (§63). The defendant’s expert report will usually be produced in response to the claimant’s. The defendant’s report should then:
(i) confirm whether the background set out in the claimant’s expert report is agreed, or identify those parts that in the defendant’s expert’s view require revision, setting out the necessary revisions. The defendant’s expert need not repeat information that is dealt with adequately in the claimant’s expert report.
(ii) focus only on those material areas of difference with the claimant’s expert’s opinion. The defendant’s expert report should identify those assumptions of the claimant’s expert that are considered to be reasonable (and agreed with) and those that are not.
(iii) in particular, where the experts are addressing the financial value of heads of claim (e.g. the costs of a care regime or loss of profits), the defendant’s expert report should contain a reconciliation between the claimant’s expert’s loss assessment and the defendant’s, identifying for each assumption any conclusion different from that of the claimant’s expert.
Amendment of reports
The basis upon which a report may require amendment (i.e. following questions, an expert meeting or the disclosure of new evidence) remains unchanged (§64), as is the prohibition on asking experts to alter their opinions. Naturally, requests to change reports to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues are still permitted (§65). As previously, if an expert’s opinion changes following a meeting of experts, then a short, signed and dated note will generally suffice. If the change of opinion is based on new evidence, however, the expert must amend the report, explaining the reasons. Furthermore, those instructing the expert must inform the other parties (§66). While this guidance has been streamlined somewhat, it remains essentially unchanged from the 2007 version.
We continue or review of the new guidance in the next part of this eWire.