New expert witness guidance - Part 3
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 third and final section we start by looking at written questions to experts.
Written questions to experts
Experts continue to have a duty to answer questions that have been ‘properly put’ under the CPR, with the party instructing them risking sanctions if the expert refuses (§67). The answers given form part of the report (§68). Guidance about what happens when an expert has doubts about whether questions have been properly put has been reworded. It now stresses the point that asking the court to help resolve the issue should be an approach of last resort; experts should first discuss the matter with those who instruct them, and then with those asking the questions (§69).
Discussions between experts
The court still has the power to direct discussions between experts for the purposes set out in CPR 35.12. In addition, the parties keep the ability to agree that discussions can take place between their experts at any stage. However, there is a new reminder that discussions are not mandatory unless ordered by the court (§70). The original guidance on the purpose of such discussions was to:
- identify and discuss the expert issues in the proceedings
- reach agreed opinions on those issues and, if that is not possible, narrow the issues
- identify those issues on which they agree and disagree, and summarise their reasons for disagreement on any issue, and
- identify what action, if any, may be taken to resolve any of the outstanding issues between the parties.
In 2014 it is strengthened by a welcome, if stark, warning that the purpose of such discussions is ‘not to seek to settle the proceedings’ (§71). New guidance at §72 deals with an SJE meeting with a party-appointed expert (one who has been authorised by the court). In such cases, the remit of any meeting will normally be limited by the remit of the party-appointed expert.
Further new guidance at §73 sets out that where there is sequential exchange of expert reports, with the defendant’s expert report prepared in accordance with the guidance at §61, the joint statement should focus on the areas of disagreement. The only exception accommodates the need for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert report.
The need to balance the cost of holding discussions against the value of the case remains (§74), so telephone discussions will be the norm in anything other than higher value multi-track cases. The parties, their lawyers and experts should co-operate to produce an agenda, but in the new guidance this is restricted to multi-track cases (§75), leaving open what happens in the vast majority of lower value cases.
Guidance on what should be contained in the agenda remains unchanged. It should indicate what has been agreed and summarise concisely the matters in dispute. And it is often helpful to include questions to be answered by the experts. If agreement cannot be reached promptly or a party is unrepresented, the court may give directions for the drawing up of the agenda. The agenda should be circulated to experts and those instructing them to allow sufficient time for the experts to prepare for the discussion (§76). The prohibition on telling experts not to reach agreement in meetings remains in force (§77), as does the bar on the content of discussions between experts being referred to at trial unless the parties agree (§78).
However, the 2007 guidance on the parties’ lawyers only being present at discussions between experts if all the parties agree or the court so orders has, regrettably, now been removed.
Guidance on the content of the joint statement has not changed (§78). The joint statement should set out:
- issues that have been agreed and the basis of that agreement
- issues that have not been agreed and the basis of the disagreement
- any further issues that have arisen that were not included in the original agenda for discussion, and
- a record of further action, if any, to be taken or recommended, including, if appropriate, a further discussion between experts.
There is, though, new guidance at §80 which states that the joint statement should include a brief re-statement that the experts recognise their duties, as well as an express statement that the experts have not been instructed to avoid reaching agreement on any matter within their competence. As previously, the joint statement should be agreed and signed by all the parties to the discussion as soon as practicable. Sadly, there is still no explicit guidance on what an expert should do when faced with another expert who refuses to follow the guidance!
Agreements reached by experts following discussions still do not bind the parties, although this is accompanied by the warning that in refusing to be bound the party runs the risk of subsequent cost sanctions (§82).
In the hot tub
§83 issues new guidance on the use of concurrent evidence: so-called ‘hot tubbing’. It explains how the process works, and outlines its benefits, before noting that experts need to be told in advance of the trial if the court has made an order for concurrent evidence.
Attendance at court
Guidance on the duties of those instructing experts for attendance at court is reworded but, in essence, unchanged (§84). Solicitors should ascertain the availability of experts before trial dates are fixed; keep experts updated with timetables (including the dates and times experts are to attend court), the location of the court and the content of court orders; and inform experts immediately if trial dates are vacated or adjourned.
Experts are reminded that they have an obligation to attend court, and should take proper steps to ensure their availability (§85). Guidance on the use of the witness summons to help achieve this (which does not affect the contractual obligations of the party to pay their expert) remains (86).
Finally, §87 introduces to solicitors a new obligation that is highly likely to be ignored routinely. When a case has concluded, by either a settlement or trial, the solicitor should inform the instructed expert(s). We won’t be holding our breath!
Conditional and contingency fees
The new 2014 guidance inexplicably, and unhelpfully, weakens the previous total ban on payments to experts that depend on the outcome of the case. In the 2007 guidance such terms should be neither offered nor accepted; to do so would ‘... contravene experts’ overriding duty to the court and compromise their duty of Independence’. But now we have only strong discouragement (§88). The guidance remains firmly against such fees, but we wonder why it was felt necessary to weaken the previous absolute ban.
An entirely new section on sanctions has been included in the 2014 guidance. Sanctions can apply to solicitors or experts (§89). In the case of the expert, there could be recourse to a professional body (§90). Once proceedings have started, the sanctions can include the court reducing (even to zero) the fee the expert will receive, or the expert report can be ruled inadmissible (§91).
To finish on a high, the final section alerts experts to the more serious sanctions they could face: contempt of court proceedings, perjury proceedings or a claim against their professional indemnity insurance (which you do, of course, have, don’t you?).
While only modest changes have been made, it is good to see the CJC updating its helpful guidance. It is required reading for all experts.