The Civil Justice Council has published updated guidance and best practice in complying with Part 35 of Civil Procedure Rules (CPR) in relation to the instruction of expert witnesses.
The guidance comes into effect on 1 December 2014 and replaces the protocol for the instruction of experts to give evidence in civil claims.
Whilst parties to litigation may instruct experts as they wish, the permission of the Court is required to use an expert’s evidence in Court Proceedings. In this regard, the guidance provides a reminder that such permission will only be given where expert evidence “is required to resolve the proceedings” (CPR 35.1).
The guidance also reconfirms that whilst experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code, their overriding duty is to help the Court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the party instructing or paying them. Experts must not serve the exclusive interest of those who retain them. Experts are therefore required to confirm, in their reports, that they understand this duty. They are also required to sign a “statement of truth”.
Importantly, experts must provide opinions that are independent, regardless of the pressures of litigation. A useful test of ‘independence’ is that the expert would express the same opinion even if they had been instructed by the other party. Therefore, experts should not take it upon themselves to promote the point of view of the party instructing them, i.e. as “hired guns”.
Experts should also immediately inform those instructing them if their opinion changes and the reasons why.
Any failure by an expert to comply with the rules or court orders, or any excessive delay for which the expert is responsible, may result in the party who instructed them being penalised in costs, or prevented from relying upon their expert evidence. This could expose the expert to claims for damages.
Generally, experts must:
- Have relevant experience and expertise regarding the issues in dispute
- Not have any conflict of interest
- Ensure that the scope of their instructions, including timescales and costs are agreed at the outset
- Be able to prepare a report within a reasonable time and at proportionate cost
Experts may request directions from the Court to assist them in carrying out their obligations (CPR 35.14), for example, if they consider that they have not been provided with information they require. Experts should normally discuss this with the party instructing them first and send any request to (a) that party at least seven days and (b) all other parties at least four days before filing any request with the Court.
The Court will also encourage, where appropriate, the appointment of a single joint expert (SJE) in an effort to minimise costs. Parties should therefore seriously consider the use of SJEs at an early stage of a dispute.
Note that the parties may still instruct their own experts to advise on the SJE’s report, but the costs of doing so will not be recoverable.
The SJE’s overriding duty is to the Court and so they should maintain independence, impartiality and transparency at all times.
The note also provides guidance on:
- The form and content of expert’s reports
- Amendments to expert’s reports
- Questions to experts
- Discussions between experts
- Experts giving evidence at Court
- Sanctions for misconduct
To read the full guidance note
