TCC guidance for experts
Revised Technology & Construction Court Guide
offers precursor of what may be to come
The Technology and Construction Court (TCC) has a reputation for being groundbreaking in its procedural rules and guidelines. This has been particularly apparent in the way it has dealt with the presentation of expert evidence.
The TCC is part of the Queen’s Bench Division of the High Court. It is a specialist court that deals with technology and construction disputes and other technically complex disputes. In addition to the Civil Procedure Rules and, in particular, CPR Part 60 (Technology and Construction Court claims) and its Practice Direction (PD 60), proceedings in the TCC are governed by the Technology and Construction Court Guide (The Guide). The Guide covers, amongst other things, procedural matters relating to the presentation of expert evidence.
On 1 October 2010, the second revision of the 2nd edition of the Guide came into effect (see www.hmcourts-service.gov.uk/docs/TCC Guide.pdf). This revision contains several changes that will affect experts and their evidence.
Service and disclosure
The Guide encourages the electronic service of documents (section 11.3.1). The term ‘documents’ includes pleadings, schedules, witness statements, expert reports, disclosure lists and other documents. It states that service of such documents can be instead of or in addition to service of hard copies.
Although specific provisions relating to electronic disclosure were first introduced into the CPR as long ago as 2005, many parties still ignore these requirements. The Court will now expect the parties and their representatives to consider at an early stage the use of technology in both the management of documents and the conduct of proceedings.
Appointment of experts
Annex C of the CPR Practice Direction – Pre-action Conduct (PDPAC) no longer applies in relation to the appointment of experts. Instead, this is now governed by paragraphs 3 and 5 of the Pre-Action Protocol for Construction and Engineering Disputes. This amendment reflects Jackson LJ’s recommendation in his final report that parts of the PDPAC, including Annex C, should be repealed.
Amending an expert’s report
Section 13.7.2 sets out the circumstances in which lawyers may suggest amendments to an expert’s report. They can invite amendments that ensure accuracy, internal consistency, completeness, relevance to the issues or clarity of the report.
Amending the experts’ joint statement
Section 13.6.3 contains guidance on the exceptional circumstances in which legal advisors may suggest amendments to the experts’ joint statement. It provides that, whilst the parties’ legal advisors may assist in identifying issues that the report should address, they should not be involved in the drafting of the joint statement. They should only invite the experts to consider amending the statement in exceptional circumstances where there are ‘serious concerns that the court may misunderstand or be misled.’ Any such concerns should be raised with all experts involved in the joint statement.
A guide to distinguishing between discussing a witness’s evidence with him (which is permitted) and witness coaching (which is not) is contained in Section 15.5.6. This applies to original and supplementary evidence and includes expert witnesses as well as witnesses of fact.
Preliminary presentation of expert evidence
With a view to reflecting a growing practice amongst experts to offer the court a short preliminary presentation, including slides, Section 13.8.1 provides that, particularly in large or complex cases where the evidence has developed through a number of experts’ joint statements and reports, experts may give a short presentation at the start of their evidence with a summary of their views on the main issues. It is stressed, however, that this should not be taken as an opportunity to introduce new evidence.
Concurrent evidence or hot-tubbing
To accommodate increasing instances of experts giving concurrent evidence, Section 13.8.2 gives guidance and makes suggestions on a number of ways that expert evidence may be presented, including ‘hot-tubbing’ (see Getting into hot water, Your Witness 60). The Guide suggests that, particularly in cases where there are a large number of issues to be dealt with, it is often useful for the court to have the expert evidence on each issue dealt with in turn, rather than have the evidence divided into the separate testimony of each expert. This amendment reflects Jackson LJ’s recommendation in chapter 38 of his final report that there was support among experts, practitioners and judges for a pilot on the use of concurrent evidence.
It is perhaps true to say that the TCC has had, over the years, something of a love–hate relationship with expert witnesses. It is an area of law that has come to depend more and more on the evidence of experts, but it is one that has also been associated with excesses of time and expense, both for the court and litigants. Consequently, the TCC has been at the forefront of reforming measures in the way expert evidence is presented.
Where the TCC leads, other courts do not necessarily follow. But the TCC guidelines for expert evidence are often a good precursor of what is to come, and a useful barometer for current judicial thinking.