Consumer law, litigants in person and expert witnesses
More experts are being asked to work direct with consumers, and that opens a whole new can of worms
Until recently, it was rare for an expert witness to contract direct with a litigant. Indeed, most expert witnesses appreciate the value in having a lawyer as a buffer between them and the litigants. This is particularly useful on those occasions when the expert’s independence leads to the expression of opinions the litigant doesn’t like!
However, the savage cuts in public funding and restrictions on cost recovery mean that courts are seeing a massive increase in the number of litigants in person. As a consequence, more experts are being asked to work direct with ‘consumers’, and it opens a whole new can of worms.
Consumer law is governed by the Consumer Contracts Regulations 2013 (‘CCR’) and the Consumer Rights Act 2015 (‘CRA’). It is a large and complex topic, however it is possible to distil a few clear conclusions for experts:
- In the case of any contract made with a litigant ‘consumer’, experts must be aware of the requirements relating to the supply of information, confirmation of the contract and the form in which confirmation is to be given, as contained in the regulations.
- The expert should ensure that the agreement contains clear terms relating to price and time for performance.
- Experts should be wary of making any statement in relation to their services, whether verbally or in writing, because these can be relied upon by the litigant and incorporated into the agreement by implication. Where it is not intended that such statements or documents should form part of the agreement, they must be expressly excluded. Indeed, the expert would be wise to obtain the litigant’s written consent to this.
- From the expert’s point of view, there are advantages to ensuring that contracts are made ‘on premises’. If only the regulations made that easy to achieve! ‘On premises’ has a rather nebulous definition, but it roughly means that the expert and ‘consumer’ litigant didn’t arrive at their agreement using ‘distance selling’. If an on-premises contract is made, the expert is required to provide less information, need not confirm it post contract and need not offer the consumer a right to cancel.
- Where there is a right to cancel, experts should bear this clearly in mind and should make sure they have given all the prescribed information and notices. Experts should be particularly wary of commencing any work during the cancellation period without receiving express instructions to do so from the litigant. They should also make sure that, where the work is likely to be completed in its entirety during the cancellation period, the client has been notified that the right to cancellation will thus be lost.
- Experts who conduct business through a website without meeting their clients face to face will need to be aware of the requirements of the regulations regarding distance selling. They will also need to make sure that their website is fully compliant with the rules applicable to distance contracts, rather than a site that merely complies with the lesser requirements for on-premises sales. The same is true for all experts who conclude contracts using online service provision platforms provided by third parties or agencies.
As noted above, the large increase in the number of litigants in person has created many and varied new issues for experts to consider. Being drawn into the orbit of consumer law is yet another factor for experts to take into account when deciding whether to agree to take on such instructions.