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An A to Z of all things expert

Posted: 26/07/2018


Advisor – can be used prior to or alongside proceedings to better understand any technical issues and shape tactics and strategy. No duties to the court, and reports remain privileged; but costs will not be recoverable.

Be thorough - make sure your expert understands what is required of them. Send them (as a minimum) copies of CPR 35, the accompanying Practice Direction and the CJC guidance for instructing experts in civil claims.

Changing experts – neither cheap nor easy. Remember that CPR 35.4 allows the court to order disclosure of any pre-existing expert’s report if you wish to substitute them.

Duty to the court – a formally instructed expert’s duty to the court overrides their duty to those instructing them: important for client, solicitor and expert to understand and remember!

Expert determination – the lesser-known half-sibling of arbitration; does your dispute centre around an issue of valuation or scientific fact? Then this could be the cost-effective (but potentially unpredictable) ADR solution for you!

Form of report – CPR rule 35 and PD 35 are very prescriptive as to exactly how an expert’s report must be set out; make sure your expert is aware of and abides by the rules.

GDPR – your expert must be GDPR compliant - anticipate some (scintillating if largely pointless) debate over whether they are controllers or processors.    

Hot-tubbing – with last year’s update to the CPR this practice is set to become more common. Can your expert stand the heat/chlorine?

Independence – would your expert give the same advice regardless of which party they were instructed by? Impartiality is key to credibility (and admissibility).

Joint statement – following a discussion between the experts, the court may direct them to prepare a statement setting out the issues on which they agree and disagree, along with a summary of their reasons for disagreeing.

Keep them informed – keeping experts up to date with any changes to dates, timetables and deadlines (oh, and facts) ensures they remain happy and compliant. And relevant.

Liability – your expert will probably be acutely aware that the Supreme Court abolished their immunity from suit. Check their retainer for an indemnity clause.  

Money – expert witnesses’ costs are recoverable as long as the costs were accrued in their role as an expert witness; but see ‘A’ for expert advisors. Remember to budget accordingly too.

kNow the rules – familiarise yourself with CPR 35, the Practice Direction and the relevant court guides. Not to mention the CJC guidance and that published by other professional bodies…

Oral evidence – CPR 35.5 presumes that evidence given by an expert will be in the form of a written report. To rebut this presumption you must demonstrate that the evidence is likely to have a significant impact on the outcome of the case and the costs will not be disproportionate.

Permission – the party seeking to adduce expert evidence must get permission from the court (CPR 35.4). You will need to show that the expert is necessary to resolve the proceedings. 

Questions – not quite sure? You may put ‘proportionate’ written questions about an expert's report to an expert instructed by another party, or a single joint expert (CPR 35.6(1)).

Retainer letter – should be kept separate from the instructions, so that it remains undisclosable. Make sure it covers confidentiality, conflicts and termination.

Single joint experts – a potential compromise to achieve proportionate costs, single joint experts receive mixed reviews (every time, presumably!). They can be ordered by the court against the parties’ wishes.

Third parties – GDPR again. Should ‘2018’s Y2K’ change how you instruct experts? The less personal data you share with third parties the better, but could this lead to experts missing out on vital evidence?

Use – a party may only use a document that has been disclosed to it for the purpose of the current proceedings, with certain exceptions (CPR 31.22(1)). Is it worth obtaining an express undertaking from the other side not to make use of these exceptions?

Verify credentials – do your homework. When instructing an expert, don’t take their word for it that they actually are one / understand their duties.

Witness – what is the difference between expert witnesses and witnesses of fact? (Punchlines on a postcard please!) Expert witnesses can give evidence based on opinion rather than fact; witnesses of fact may not.

eXpert shopping – tempting though it may be to shop around for different experts’ views, to find the one that best supports your client’s case, the courts do not approve. See ‘C’ above.

Your role – is to choose a suitably qualified and experienced expert and ensure they are kept informed about the administration and duties involved with giving evidence to the court. Your role is not to shape the expert’s statement or try to alter their position. 

Zealotry - 0, Objectivity - 1. Every time (see ‘I’ above).

This article was published in New Law Journal in July 2018.


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