Expert evidence. A guide for expert witnesses and their clients (Second edition)

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1 Expert evidence A guide for expert witnesses and their clients (Second edition) Addendum, June Introduction 1.1 The second edition of this Guide was published in October 2003, in order to set out the substantial changes brought about by the Courts' revised Civil procedure Rules ('CPR'). 1.2 The law has developed further since 2003, albeit not in a substantial manner which would require the publication of a new edition. 1.3 The purpose of this Addendum is to highlight some of the more recent developments concerning expert witnesses and their practice, and to provide an update on some of the issues set out in the second edition of the Guide. 1.4 As before, the purpose is simply to provide a digest and Experts will still need to understand the CPR and the legal principles set out in this Addendum. However, it is hoped that the Addendum will serve as a useful update with regard to relevant issues and a convenient starting point for more detailed consideration. 2. Expert Immunity 2.1 Expert immunity is mentioned in section 7.2 of the Guide and the general principle is that expert witnesses are immune from civil claims. This is a well established principle aimed at ensuring that experts give evidence freely and independently. 2.2 The position is less clear following a few recent decisions. In Philips v Symes [2004] EWHC 2330 the court found not only that an Expert could be joined as a respondent, but that he could also be made liable for a party's costs if he has acted "recklessly or in flagrant disregard of his duties to the court". 2.3 In the highly publicised case of General Medical Council v Meadow [2006] EWCA Civ 1390, the Court of Appeal overturned the High Court's decision to extend the immunity from suit to disciplinary proceedings. As a result, Experts may be vulnerable to disciplinary proceedings if it can be shown that their evidence in court demonstrates they are not fit to practice in a particular discipline. 2.4 Overall, this emphasises the need to ensure that great care is taken and the highest standards are observed in giving evidence. When giving evidence an Expert must bear this in mind. Any issues should be discussed with the legal representatives as appropriate. The Expert's duties to the client and the Court are set out in section 7 of the Guide. 3. Legal Privilege 3.1 The issues concerning legal privilege are set out in various sections of the Guide. Section 4.3 of the Guide deals with privilege and disclosure and section 6.3 of the Guide highlights the privilege which may attach to an Expert's report when the Expert is instructed as an adviser. In addition, Section of the Guide deals with legal privilege with regard to discussions and meetings with an Expert. 3.2 The law has not changed in this regard, but a few recent decisions provide useful guidance as to the practical application of the general principles. Expert evidence - A guide for expert witnesses and their clients (Second edition) Addendum, June 2009 Page 1 of 6

2 3.3 In Gary Beck v Ministry of Defence [2003] EWCA Civ 1043 the Court of Appeal held that where the court's permission is needed to instruct a new Expert, such permission will only be granted if the first Expert's report is disclosed to the other side. 3.4 The same principle was upheld more recently by the Court of Appeal in Nicos Varnavas Hajigeorgiou v Vassos Michael Vasilou [2005] EWCA Civ 236. The Court of Appeal confirmed that an Expert report is protected by legal privilege but that a condition of permission to change Experts may be a waiver of such privilege, and such disclosure may extend to draft reports. 3.5 This is in order to prevent "expert shopping", and while it will only apply when the court's permission is needed, the decision highlights the need for parties to consider carefully the terms of any Expert's appointment. It is not in every case that a party will be ordered to disclose an earlier Expert report but this issue needs to be borne in mind whenever an Expert is to be replaced. 3.6 Another issue dealt with by the court following publication of the Guide is the disclosure of early drafts of a report. In Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225, the Court of Appeal confirmed that earlier drafts of an Expert's report are protected by privilege and cannot be disclosed. This provides some comfort to Experts and the freedom to discuss issues freely. However, to avoid the risk of reports being disclosed it would be good practice to identify clearly draft reports which only contain initial views which need to be finalised. It may also be necessary to discuss and confirm with the legal representatives the form of any reports to be provided. 4. Expert's Bias 4.1 The issues relating to the Expert's duty of independence are covered in Section 7.3 of the Guide. The recent Court of Appeal decision in Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107 deals with allegations concerning bias by an Expert and the proper test for excluding an expert's evidence on this ground. 4.2 The case concerned smells from a waste management site. The expert appointed by one party was an employee of the same firm that employed another expert who gave the council a view on the smells (but not expert evidence). It was therefore argued that there was apparent bias and his evidence was excluded by the trial judge. 4.3 The Court of Appeal did not agree. The evidence did not support a finding of institutional bias (to the extent that there had been one). In addition, there had been no significant breach of the obligation to inform the court of a potential conflict of interest. 4.4 It was confirmed that simply because an expert may have an interest in the outcome of a claim will not necessarily prevent him from giving evidence. As a matter of good practice, however, it was made clear that even if a party decides that its Expert can act on the matter, it should consider whether it would be appropriate to inform the other party and the court as soon as they become aware of any matters which may be seen to affect the admissibility or weight of the evidence. 4.5 For Experts, therefore, it is crucial to ensure that they bring to the attention of their instructing solicitors any issues which might be seen as giving rise to a potential allegation of apparent bias. Expert evidence - A guide for expert witnesses and their clients (Second edition) Addendum, June 2009 Page 2 of 6

3 5. Changes to the Civil Procedure Regarding Costs 5.1 In respect of issues as to costs referred to in the Guide, the most important development since October 2003 relates to Part 36 of the Civil Procedure Rules and costs protection in court proceedings. 5.2 With effect from 6 April 2007 a new Part 36 of the Civil Procedure Rules replaced the existing provision. It is imperative that section 4.4 of the Guide is considered in the context of the 'new' Part Since 6 April 2007 payments into court no longer play any role in the Part 36 offer to settle procedure, and a Claimant or Defendant can now only make an 'offer to settle', and not a payment into court. As a consequence of payments into court no longer being applicable in respect of Part 36, in the main section of the Guide is no longer relevant. 5.4 Part 36 offers to settle should now be expressed to be 'without prejudice except as to costs'. A Part 36 offer to settle can be made in both money (including claims for provisional damages) and non-money claims, in respect of the whole or part of a claim or in relation to an issue that arises, in respect of liability alone, and in respect of a party's claim and/or counterclaim. 5.5 As before April 2007, a Part 36 offer to settle can be made prior to the commencement of court proceedings. 5.6 The 'new' Part 36 includes specific provision as to the form and content of a Part 36 offer to settle. 5.7 In respect of a money claim, on acceptance of a Part 36 offer, the sum offered becomes payable within 14 days (or such other period as has been agreed by the parties) of the date of acceptance. Subject to certain specific provisions in Part 36, where a Part 36 offer is accepted within 21 days of the date of the offer to settle (such period known as the 'relevant period'), a Claimant will be entitled to its costs up to the date on which the Notice of acceptance was served, to be subject to detailed assessment on the standard basis (see sections 14.4 and 14.5 of the Guide), if not agreed. Specific advice should be sought on the costs consequences of acceptance of a Part 36 offer. 5.8 The new Part 36 includes provision as to when a Part 36 offer to settle can and cannot be withdrawn without permission of the court, and in respect of an offeror not being able to rely upon Part 36 costs protection or benefits, if an offer is withdrawn or changed to make its terms less advantageous to the offeree. 5.9 As before, a Part 36 offer that has not been accepted may give rise to costs consequences following Judgment. Such costs consequences may arise where a Claimant fails to obtain a Judgment more advantageous than a Defendant's Part 36 offer, or Judgment against a Defendant is at least as advantageous to the Claimant as a proposal contained in a Claimant's Part 36 offer In such circumstances, pursuant to recent court Judgments, the court will now consider the terms of the offer made and all the circumstances of the matter when determining whether an offer is more advantageous. This may include considering issues such as was the case worth fighting after taking into account the sum awarded as against any offer, and/or possibly issues such as whether the parties refused to engage in any form of negotiation Failure to comply with Part 36 of the Civil Procedure Rules in court proceedings, and/or the court's approach to the award of costs, interest on costs and interest on damages in the event of a Part 36 offer not being accepted and the matter proceeding to trial, can have substantial financial consequences for a Claimant or Defendant. Experts or clients should consider taking specific legal advice prior to the making or following receipt of a Part 36 offer to settle. Expert evidence - A guide for expert witnesses and their clients (Second edition) Addendum, June 2009 Page 3 of 6

4 5.12 Since publication of the Guide in 2003 the court and arbitrators continue to take a more robust approach to the award of costs in proceedings; including having regard to a parties conduct, lost issues, the extent of success, and as to proportionality This addendum does not seek to cover all amendments to the Civil Procedure Rules in respect of the recovery of costs in court proceedings (e.g. as to costs incurred in road traffic accident claims or in respect of the recovery of costs for a charity in respect of work undertaken on a pro bono basis), or to seek to include reference to ongoing law costs reviews by the judiciary, which are likely to give rise to further changes in 2009/ The Court's management of disputes 6.1 The issues relating to giving evidence are addressed in section 13 of the Guide. As part of the overall changes that resulted from the 'Woolf reforms' and the Civil Procedure Rules, the courts are taking a more active role in managing disputes. Judges are no longer content to let the parties decide the timetable for proceedings and the manner in which they would be progressed. Instead, judges will often put forward suggestions to the parties, or even require the parties to take certain steps to ensure that disputes are resolved proportionately and without unnecessary costs and delays. 6.2 This proactive approach extends to experts, and judges can and do make provisions for experts to meet, to produce joint statements and to meet on additional occasions as new issues arise. Expert witnesses should be open to such suggestions and recognise them as opportunities for effective management of the expert issues in the dispute by narrowing down, resolving or identifying more clearly the issues in dispute. 6.3 Having said that, to the extent that any court directions create a difficulty for an expert witness, whether for practical or legal reasons, this should be immediately identified and communicated to the legal representatives so that the issue can be raised with the court if necessary. By way of example, where the time allowed for submitting the report is considered by the Expert to be unrealistic, the Expert should immediately inform the legal representative so that an application can be made to extend the period. 6.4 A good example of this approach can be found in the current TCC Court Guide, which came into effect from 1 October 2007 and deals with expert evidence in Section 13. Expert witnesses in the TCC should therefore familiarise themselves with the provisions of this section. The TCC Court Guide emphasises the need to ensure that costs are proportionate to the dispute and Experts should recognise that they may be required to provide costs estimates, and that their fees may be capped by the court (this is uncommon presently in general commercial disputes but the position may be changing). The court may explore the possibility of appointing a joint expert as a way to reduce unnecessary costs (referred to in sections 2.8 and 8.4 of the Guide). 6.5 The TCC Court Guide also emphasises the Expert's duties to co-operate fully and encourages the early exchange of preliminary reports (albeit this can be done on a without prejudice basis). Without prejudice meetings (section 11 of the Guide) are encouraged at all stages leading to trial, and while the legal advisers are encouraged to provide an agenda and topics for discussion, it is made clear they should not attend such meetings or seek to influence their outcome. In addition, joint statements are identified as critical documents and should be produced even where there is little agreement between the parties. The Court may ask the Experts' to identify the items where agreement could not be reached and the difference in opinion. Expert evidence - A guide for expert witnesses and their clients (Second edition) Addendum, June 2009 Page 4 of 6

5 6.6 The Pre-Action Protocol for Construction and Engineering Disputes ("Pre-Action Protocol"), referred to in section 2.5 of the Guide, has been revised in 2007 and includes new provisions on the need to ensure costs are proportionate to the amounts of money in dispute. The maximum period for a response has been reduced to 3 months from 4 months and there is a 28 day deadline for Pre-Action Protocol meeting. 6.7 Paragraph 5.5 of the Pre-Action Protocol now asks parties to consider: The areas where expert evidence will be required How relevant issues for experts will be identified How expert evidence will be dealt with, including whether a joint expert may be appointed If a joint expert is required, who that joint expert should be. A failure to follow the Pre-Action Protocol could result in not only cost sanctions but in the court proceedings being stayed pending compliance with the Pre-Action Protocol. 6.8 In addition, a new Practice Direction on Pre-Action Conduct has come into force on 6 April Parts of it will also apply to construction and engineering disputes and it is intended to reinforce the Court's ability to take into account pre action conduct when making court orders. It therefore provides guidance on compliance and sets out examples of what would be considered to be non compliant conduct (e.g. not providing sufficient information or refusing to disclose documents without good reason). 6.9 In addition, there are new provisions regarding the use of expert witnesses (at Annex C). The aim is to limit costs and the parties are encouraged to use a joint expert or agree on the experts to be used by the parties. Under the latter requirement parties are required to submit a list of proposed experts to the other side for approval in the Letter of Claim and Response. Parties can then choose the experts to be used within 14 days It remains to be seen how this will operate in practice in relation to engineering disputes and the TCC may not always penalise parties for not complying strictly with this requirement. However, where possible the new Practice Direction should be followed, albeit it may mean that parties simply identify their appointed experts and ask the other side to confirm their agreement or explain why they should not be used. A failure to comply with the new Practice Direction could result in costs sanctions. 7. The Experts Protocol 7.1 A Protocol for the Instruction of Experts to give Evidence in Civil Claims (the 'Protocol') was published in 2005, thus post-dating the Guide although it predates the more recent changes to the Civil Procedure Rules outlined above. Part CPR 35 of the Court Procedure Rules and the associated Practice Directions remain fully applicable but the Protocol has clarified some issues, including in particular highlighting the difference in requirements from an Expert appointed to give evidence in Court and an Expert who has only been appointed to advise a client. 7.2 The Protocol was introduced to provide guidance to Experts and the parties instructing them on the interpretation and compliance with CPR Part 35 as well as the general objectives of the Civil Procedure Rules. It provides useful guidance and clarifies the following points: A statement of truth is mandatory (paragraph 13.5) An Expert s evidence should contain a summary of conclusions at the end of his report, with a further opening summary optional (paragraph 13.14). Expert evidence - A guide for expert witnesses and their clients (Second edition) Addendum, June 2009 Page 5 of 6

6 7.2.3 The omission of 'off the record' oral instructions from an Expert s report remains forbidden (paragraph 13.15) The action recommended where a claim otherwise risks being time barred is addressed (paragraph 3.5) The agenda for discussions at meetings between Experts should still be jointly drawn up by the Experts, their clients and client s lawyers (paragraph 18.5) but the Protocol clarifies that the legal advisers are responsible for the agenda. They may answer Experts questions, advise on the form of a report and continue to advise on points of law The Experts meetings should only be attended by the lawyers where so ordered by the Court or where specifically so agreed by the parties, including the Experts (paragraph 18.8) Opinions expressed in Experts reports must remain wholly their own (paragraph 13.13). 7.3 Experts should therefore be familiar with the Protocol and it provides guidance in simple terms on common issues which govern the conduct and giving of evidence by Experts. 8. Professional Indemnity Insurance 8.1 While the Guide is not intended to deal with issues relation to professional indemnity insurance, it is of course important that an Expert has appropriate insurance cover and that he is aware of the terms of his policy and any restrictions and notification requirements in particular. As Noted in the Guide at section 16, an Expert should not dispose of his papers without seeking approval from his client and/or legal representative and such documents may also be required by his Professional Indemnity insurers. 8.2 As a matter of general principle experts should keep records for at least as long as there may be a claim in relation to the subject matter of the expert evidence. At present, the general limitation periods for a contractual claim is 6 years and for a claim in negligence 6 years or 3 years from when there should have been awareness of the causes of action. 9. Conclusions 9.1 In the recent case of London Fire and emergency planning authority v Halcrow Gilbert Associates and Other [2007] EWHC 2546 (TCC) the Court set out the relevant CPR provisions, including the Protocol for instructing Experts, and made it clear that a failure to comply with the guidance as to the appropriate professional conduct may lead to the Expert's evidence being rejected. 9.2 As noted above, while there have not been substantive changes to the law regarding expert witnesses, further guidance is now available and in general the courts are more likely to look into the circumstances relating to an Expert's appointment and his evidence. In practice, this means that every Expert must ensure that his appointment and the evidence given comply with the relevant procedures and his obligations to the court. A failure to do so may well mean that the Expert evidence is given less weight or is rejected. Note: The Definitions in the Guide (Section 1.2) also apply to this addendum. Consequently, words importing the singular also include the plural and vice versa; words importing the masculine gender also include the feminine and neuter. Expert evidence - A guide for expert witnesses and their clients (Second edition) Addendum, June 2009 Page 6 of 6

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