Withdrawing from civil instructions
Have you ever considering withdrawing from civil instructions?
We have had a spate of Helpline enquiries recently from experts who are considering withdrawing from civil instructions. This can happen when the relationship between the expert and the instructing lawyer has broken down, perhaps due to non-payment of fees. Sometimes, though, problems stem from the inability of the instructing lawyer to keep the expert ‘in the loop’ with developments in the case, including important court orders that require some timely action from the expert.
Looking at withdrawal first, an expert who wishes to withdraw entirely from a case should read para 27 of Guidance for the instruction of experts in civil claims (see http://www.jspubs.com/experts/library/lib_g4e.cfm) which is brought into the Civil Procedure Rules by para 1 of the Part 35 Practice Direction. Para 27 reads:
27. Where experts’ instructions are incompatible with their duties, through incompleteness, a conflict between their duty to the court and their instructions, or for any other reason, the experts may consider withdrawing from the case. However, experts should not do so without first discussing the position with those who instruct them and considering whether it would be more appropriate to make a written request for directions from the court. If experts do withdraw, they must give formal written notice to those instructing them.
Clearly it is a matter for each expert to decide the sort of behaviour from a solicitor that might constitute ‘good cause’. However, experts must remain mindful of their overriding duty owed to the Court once instructions are accepted, and this consideration will, perhaps, become more pressing the closer one is to a court hearing.
If a failure to keep you informed on progress in a case is a factor, and of court orders in particular, when setting out the reasons for withdrawal, you might wish to refer to what you feel are the failures of the solicitor to abide by para 8 of the Part 35 Practice Direction. It reads:
8 Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert. The claimant must serve the order on a single joint expert.