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  Paying LiP service

What should an expert do when a lawyer pulls out, creating a litigant in person part way through the case?

We received an interesting call to the Register Helpline recently concerning a case in which the instructing solicitor wrote to the expert to say…

‘Please note that with immediate effect, we no longer act on behalf of the Claimant in this matter. He will be acting as litigant in person (LiPs).’

The expert had prepared reports and a joint statement with the defendant’s expert in this civil case, and had been warned for trial in the county court several weeks hence. The expert’s contract was with the solicitor, not the solicitor’s client.

The risk of coming into contact with LiPs is ever increasing, so it’s worth considering what one might do in such circumstances.

As the instruction of expert witnesses is governed by contract, once the solicitor stepped away from this case, the expert’s contractual duties ended. The expert concerned thought he should tell the LiP he would take instructions direct, but only if the LiP paid up front. In offering to work on a ‘cash on account’ basis (and we would not blame him for taking that line!), the expert would be forming a new contract.

One important consideration for the expert, though, is his overriding duty to the court. Once an expert agrees to act in a given case, an overriding duty to the court arises. In the situation described above, the expert must balance his duty to the court in deciding how to proceed. Unless withdrawing completely from the case, the expert’s duty to the court may cause him to act in a way different from how he might proceed in a purely commercial context. In our view, the closer one is to any trial, the more heavily must weigh that duty to the court.

Seek a direction from the court

When this kind of situation arose for one of the engineering experts in the Register, he found matters complicated by the existence of a court order which included the need for the expert to produce a joint statement. Eventually, the expert decided to write to the clerk to the court to explain what had happened and express his concerned that he was in limbo. It became clear that the judge summoned the two lawyers and decided how they proposed to deal with the case. The result was that the case was dismissed and therefore the expert's obligations in the court order fell away.

As this expert's experience shows, it is worth remembering that as a last resort the Civil Procedure Rules Part 35 allows experts to request directions from the court. This is a good example of when to use that power.

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February 2017

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