When is Expert Evidence Appropriate? (Part 35.1 and 35.4).

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1 The Role of the Expert Witness in Civil Cases CPR, Part 35. Introduction In his review, Lord Woolf found serious fault with the old system of expert evidence, pointing out the central tension which exists between the experts' dual roles as a paid agent of one of the parties and as an "independent" witness giving assistance to the court. He identified the danger that experts were being transformed into "additional advocates of the parties" - a position which he said was already perhaps the position in the United States and which should not be emulated here. He also said that experts' work was often used in cases where expert evidence was not really needed at all. Inappropriate use of experts leads to increased costs and delay, and arises because the parties have complete control over the scope and presentation of their case. He argued for complete Court control over the use of expert evidence, the wider use of the single joint expert and new rules emphasising the expert's primary duty to the court, not to the party who controls or pays him. Although some of his proposals were toned down (for instance, the suggestion that the court should appoint experts in all cases), many of them were adopted and now constitute Part 35. The expert must have a good knowledge of Part 35 from the time he accepts instructions. Indeed, judicial comments indicate the extent to which experts are expected to have such knowledge and comply with the rules (see, for example, Cairnstores Limited v Aktiebolaget Hassle). The following paragraphs deal with the detailed rules contained in Part 35 and in the Practice Direction to that part, which are reproduced as Appendices hereto. The further guidance contained in the Code of Guidance for Expert Witnesses (produced by the Expert Witness Institute) is also dealt with. The rules relating to the expert witness are perhaps that part of the CPR which has given rise to most judicial comment and development in decided cases. The following discussion therefore refers to a number of these authorities. When is Expert Evidence Appropriate? (Part 35.1 and 35.4). The Court's case management responsibilities under CPR Part1 (including proportionality) mean that the court will look closely at the need to have expert evidence at all. It will not be appropriate if it is a matter where the issue is obvious or the judge can decide the case on the facts. See Hawkes v London Borough of Southwark (the judge held he had no need of expert assistance to assess the risk of falling downstairs while carrying a large door, or how the accident happened). Expert evidence is only permissible with the court's permission (see general principle in Part 32.1 and Part 35.4(1)) and will be restricted to that which is reasonably required to resolve the proceedings (Part 35.1). This may mean the courts will examine reports for their length, relevance and complexity before permitting them to be used at trial. The court may

2 limit the issues to be addressed by the expert, the range and number of experts, and also the costs that the party relying on the expert evidence may recover (Part 35.4 (4)). Different approaches will therefore be adopted for different cases. When is expert evidence appropriate? Expert evidence is admissible where there is an acknowledged "body of expertise" that is governed by established principles and rules of conduct and which is pertinent to the issue to be decided by the court - Barings v Coopers & Lybrand (No.2), Times 7 March Here evidence pertaining to the practice and procedure of investment banking was allowed. In practice, the weight of the evidence is more important than its technical admissibility. See Slimani v Secretary of State Horne Department, Immigration Tribunal Case, 01/TH/ Opinion evidence was adduced on the political situation in the home country of an asylum seeker. The appeal tribunal said it was difficult to obtain objective expert evidence of real value when opinions on the subject were so subjective. So although the evidence was- heard, not much weight was given to it. It was pure opinion as opposed to a technical matter. If a claim is small, expert evidence may be inappropriate if it is disproportional. See Bandegani v Norwich Union (New Law Online, 20 May 1999, and Current Law, Jan 2001). Claimant gave evidence himself of value of his car ( 1500) without calling expert valuation evidence. Court refused him damages. Court of Appeal overturned this, saying that expert evidence neither necessary nor desirable in such a small case. Note also that in a small claims track case, an expert is very unlikely ever to be used, and in a fast track case, the court will look very closely at whether an expert needs to be called to give oral evidence at the trial. See also Thomas Johnson Coker v Barkland Cleaning Co (unreported). The issue was whether the claimant had been hit by a cleaning machine. The claimant called an engineer to give expert evidence about the machine. She won her case, but the judge ordered she should not receive the costs incurred in instructing the engineer. The evidence was not pertinent/necessary as it was one of fact (i.e. did the machine hit the claimant) and the parties have a duty to avoid unnecessary expense. In LHS Holdings v Laporte [2001] EWCA Civ 278, it was held that expert evidence was not needed from an accountant regarding the meaning and interpretation of standard accountancy documents (interpreting the meaning of words in a document is not something judges require expert help with). When is a Witness Qualified to be an Expert? There is no absolute requirement that the witness be professionally qualified (in some disciplines there remains no formal qualification). However, generally, if there are qualifications in the field, the expert will be expected to have them and should often be at the forefront of those practising in the discipline. As to how senior an expert to instruct, parties have to bear in mind the likely cost and the question of proportionality, and the risk that a high fee from a very "grand" expert may not be fully recovered.

3 The Experts Overriding duty to the Court, Independence and Conduct CPR 35.3 provides that it is the duty of the expert to help the court in matters within his expertise, and that this duty overrides any obligation to the person who instructed him or by whom he is paid. If anything, PD35, Para 1 goes even further than this, describing the duty to the court as paramount. He must therefore provide an objective, unbiased opinion (PD35, Para 1.3), his evidence should be his independent product, uninfluenced by the pressures of litigation (PD35, Para 1.2) and he should not assume the role of an advocate (PD35 Para 1.3). He must also stick strictly within his expertise. The following points on the expert's duty to the court arise from the cases: Refuse instructions if you have connections with the party who instructs you. See Liverpool Roman Catholic Archdiocesan Trustees v Goldberg (No 2), (2001) 98 (17) LSG 38, Times 10 August A tax barrister sued tor negligence instructed a colleague and friend to be his expert witness on tax law and practice. Held that there was no objection in principle to admitting evidence in these circumstances and it was a matter for the trial judge to decide if the evidence is credible in those circumstances. NB, as it turned out, the trial judge rejected the evidence as the relationship could give the appearance of bias. See also Re B (a minor). A psychiatrist with standing links to a family was held not sufficiently independent to provide forensic evidence in a court case involving allegations against the father of a child. Note that an existing link with the other party (i.e. the side not instructing you) can just as easily give rise to a suggestion of bias. The expert should not agree with anyone that he will not act as an expert witness for their opponents. See Lilly Icos v Pfizer Ltd (2000) 23 (there was a suggestion that one of the parties was trying to persuade relevant experts - by offering payment - not to act for their opponent). Major case - Pearce v Ove Arup (2002) 25 (2) IPD Claimant's expert architect held not to have been objective, failed to consider all the relevant facts and documents, and was so irrational and biased that he had failed to meet his duty to the court to be objective. Instead, he had come to argue the case, and any point which supported it, "however flimsy", he took. The judge said he bore a heavy responsibility for the case ever coming to trial at all. As a result, his evidence was rejected and his client lost the case. No sanction against such an expert is provided by the rules, but the judge said he could report him to his professional body, and did so. What about experts employed by the party? See Admiral Management Services v Para-Protect Europe, Times, 26 March There is nothing in principle to prevent it and it may be acceptable depending on the circumstances (e.g. advice on a very specific technical matter for which no-one else would be suitable). But the employed witness is surely likely to be looked on as biased and not credible in most cases.

4 Failure to comply with court orders/attend meetings etc. See Stevens v Gullis, [2000] 1 All ER 527; [2001] CP Rep 3. The court will refuse to allow the evidence and may strike out the client's case. At the very least the experts fees will not be awarded. The expert must be ready to change his stance (e.g. when new information or the considered opinion of his opposite number is received). Be open-minded! These points are made in Anglo Group v Winther Brown & Co Ltd, [2000] ITCLR 559 The expert's opinion must be based on a consideration of the whole of the subject matter, and not only that evidence/viewpoint which supports the party instructing him. See Royal & Sun Alliance v Healey & Baker (unreported) Transcript: CH 1998 BR 485 (a case involving a surveyor commenting on the letting potential of a property - he was said to have relied only on factual evidence that buttressed his "clients" case, failing to mention facts that pointed the other way). See also Cairnstores Limited v Aktiebolaget Hassle [2002] EWHC 309 (Ch) (unreported). Criticism of an expert whose approach was 'more akin to that of an advocate than an expert'. Also criticised for thinking up as many favourable arguments as possible, however unlikely or unrealistic, and for inconsistency with earlier evidence and writings (i.e. views given in other cases he had been involved in and articles he had written). See also SPE International Limited v Professional Preparation Contractors Limited [2002] EWHC 881 (Ch) (unreported). Whole series of criticisms of the expert. Instructions to the Expert and Privilege Rule 35.10(4) - The expert's instructions are not privileged, but court can only order disclosure (or cross examination on them) if the summary of instructions in the report may be inaccurate or misleading. Not clear whether this applies to pre-action instructions/advice. Code (part 1, Para 3) says it is "likely" to be. But see Para 4 - "certain circumstances"? The statement of instructions (in the Report) required by Part 35.10(3) must be complete and not misleading. See Morris v Bank of India Ch D 15/11/01. Report of a banking expert failed to reveal all material instructions relied upon (here, draft witness statements taken by the expert). Disclosure of the instructions (which here included the witness statements) was ordered. No privilege. Pre-action advice is likely to be privileged. See Carlson v Townsend 2001 WL A medical expert was appointed (in accordance with the provisions of the clinical negligence pre-action protocol). Held that his advisory report was privileged and the court would not order disclosure. If the expert interviews witnesses in order to prepare his report, notes of the interviews

5 are not privileged, and should be annexed to the report See BCCI v Ali (No 3) All ER 83 Other pointers: Assume that anything received as part of the instructions will be discloseable Keep careful notes of all oral instructions - they are as much part of your instructions as anything in writing Know whether the advice being given is pre or post proceedings. No "side-letters," either to you (e.g. "supplementary instructions") or from you. The Expert Report - Contents and Other Requirements Part 35.5 (1): General requirement for expert evidence to be given in a written report. Part (1): The report must comply with the requirements set out in PD3S. See Para 2, and also the code of Guidance Paras 15 and 16. Report should be addressed to the court (not the instructing party) Must give details of qualifications and experience Summarise the range of opinion Set out the substance of all facts and the source of all information Say who carried out any tests or experiments and their qualifications (and whether this work was carried out under the supervision of the expert) Contain a summary of conclusions State any qualification to his opinion (e.g. "this opinion is qualified because I do not have all the information I need") Contain a statement that he understands his duty to the court and has complied and will continue to comply with it Part 35.10(3) requires the exper1 to state all material instructions, written or oral. PD 35, Para 2.3 requires the report to be verified by a statement of truth, in the form specified in P035, Para 2.4. Note also the requirement in P035, Para 1.6 that if the expert changes his opinion after preparing his report, he has a duty to communicate this to the parties and if appropriate to the court. The Single Joint Expert ("SJE") See CPR 35.7 and 35.8 and Code of Guidance, Paras tor the rules relating to courts' power to direct that there be a single joint expert, and instructions to the SJE. Note that a party can instruct his own expert to advise him, even when a single joint

6 expert has been appointed (Code, para 36), but would be unlikely to recover the cost of that expert. Also, a party may propose as SJE an expert who has already advised him pre-action - no problem if the other party agrees and if the first party will disclose original instructions and advice (Code, Para 37). When are SJE' s appropriate'? Only in small claims or fast track cases or where issues simple probably not for liability issues. But courts may well want SJE's in multi track cases for technical and quantum issues. See Peet v Mid-Kent Healthcare Trust Times, 19/11/01, below. The objective of appointing an SJE is to agree or narrow issues with Jess controversy than may be the case with 2 experts - sensible particularly in the early stages and for less contentious issues SJE's are less appropriate in high value cases (where cost less of an issue), complex cases, or where there is a legitimate range of professional opinion. See S(a minor) v Binningham Health Authority L TL 23/11/99 CA - a complex clinical negligence case. Judge ordered an SJE on liability and quantum. Court of Appeal disagreed. So much was at stake that parties should be allowed their own experts. Instructions to SJE's joint instructions where possible (Code, para 39) if separate, copy to be sent to other party, and expert should be told reason. Payment/invoicing arrangements should be clearly specified at the outset. No supplementary instructions without notifying other side. The Court can limit the fees of an SJE. See Kranidiotes v Paschali [2001] EWCA Civ 357. Court limited fee of expert (an accountant instructed to value a shareholding) to 1 0,000. The expert selected by parties quoted a fee of 75,000. The court terminated the instruction as the cost was disproportionate. The parties are jointly and severally liable for the SJE's fees (i.e. they share the cost, but each also remains technically liable for the whole fee) unless the court orders otherwise. The SJE's Report What if one party/both parties unhappy with the report? Opportunity to put questions within 28 days (see below, para 2.8). If still unhappy, need "reasons which are not fanciful" to go further - need to demonstrate why expert "wrong" or may be so. If a party wants a new expert of his own, issues of costs, proportionality and disruption to the timetable are relevant See Daniels v Walker TLR 17 May The parties initially accepted an SJE in a high value Personal Injury claim. When report received, Defendant did not like it and wanted to instruct own expert. The Court of Appeal allowed this and

7 did not rule out the second expert's fees from being recovered from the other party. BUT - you need a very strong case to succeed in getting permission to instruct your own expert. The power to put questions to SJE's exists and is there to be used. Also, a dissatisfied party can seek a meeting with the SJE. The case emphasised the great advantages of SJE's, at least at the outset. Note also that the court warned against the argument that a party has a "right" to call whatever evidence he likes, under the Human Rights Act. Conferences with the SJE It is not acceptable for one party to have a conference with the SJE in the absence of the other party, unless the other party is notified and consents. See Ped v Mid- Kent Healthcare Trust (see above) - Part 35 was designed to ensure an open process. The SJE's report should be the evidence. And a party should not have the opportunity to test the SJE before trial, without presence/consent of the other party. Written Questions to Experts See part 35.6 and PO 35, Para 5. A party may put written questions to the other party's expert or to an SJE within 28 days of service of his report. Questions must be for the purpose of clarifying the report (and not introducing entirely new matters or questions) and may be put once only. The expert's answers are treated as part of his report. Questions should be answered within 28 days (See Code, Para 24). If the expert fails to answer, the court may refuse to allow the party who instructed the expert to rely on his evidence, or may disallow recovery of his fees. The experts' fees for answering questions are initially payable by the party who instructed the expert. What if the expert considers the questions to be inappropriate or outside the scope of his instructions or expertise? He can apply to court for a direction (CPR, Rule 35.14). See Mutch v Allen [2001] EWCA Civ 76. A medical expert was asked a question - would the claimant's injury have been less severe if he had been wearing a seatbelt? At first instance held this was outside his expertise/instructions BUT CA held that an answer would be helpful to "the just disposal of the dispute", but it would be appropriate for the expert to be called to give evidence and be cross-examined or permission for further expert evidence should be given. Expert's Right to Ask Court for Directions See Part The expert may tile at court a request for directions to assist him his task. Any such request must be copied to both parties the requisite number of days before it is filed (i.e. 7 days before to the party instructing him and 4 days before to the other party). This is potentially an extremely useful tool for the expert to use when he hits heavy weather. The SJE, for example, will not untypically be faced with cont1icting instructions from the two parties. He could consider seeking the courts help to sort this out. Similarly, the expert

8 might sensibly use this right where he is not receiving the cooperation of the parties or where he does not have the necessary information. If he is asked written questions which he considers unreasonable, an application to court might, in the last resort, help him to resolve any dispute. However, the expert should be careful not to make inappropriate applications (for which he will be criticised) and should aim to use this right sparingly. When difficulties arise, he should not apply to court except as a last resort and will be expected to attempt to resolve issues by agreement and in correspondence before rushing off to court. Discussions Between Experts See Part and Code Paras 25 to 29. The court may at any stage direct the experts to meet in order to discuss the expert issues and where possible reach an agreed opinion. Invariably, they will be ordered to meet after reports are exchanged. The court may order the experts to prepare a joint statement after the meeting to identify the issues agreed and disagreed (sometimes in the form of a "Scott Schedule"). The content of the discussion is not to be referred to at the trial unless the parties agree, and if the experts reach agreement, that agreement does not bind the parties unless they agree to be bound by it. Neither the Rule and the PD, nor the Code give very much guidance on how to conduct such discussions. But see Code, Paras 25 to 29. Practice points:- either the expert or solicitors should establish a clear agenda. timing. Why not meet early, before views become entrenched, or to agree facts, methodology, common information etc... You do not have to wait until the court orders a meeting and be alive to the possibility that a meeting could help push things along towards settlement. take clear note of points of agreement and disagreement. consider any action the parties may take to progress towards a resolution the expert must remember he is not an advocate and is independent, objective and impartial - he is not attending the meeting to argue the case as the party's representative. the experts are not there to settle the case, but equally should not accept instructions not to agree on areas which are within their competence if a joint statement is prepared, agree it and sign it before the lawyers see it. The lawyers should, logically, have no int1uence over the record of what you discussed or agreed! Who should attend the meeting? basic position: just the experts Code, Para 27 - lawyers should not normally attend, but if they do, they should not intervene except to answer questions put to them. The courts have been backing this in recent cases (experts may approve, but lawyers often don't). See Hubbard v Lambeth Southwark and Lewisham Health Authoritv, Times 8 October The court would not order that the lawyers should attend - their input should be a wellcrafted agenda. However, if the case justified it, it might be sensible to appoint an independent legally qualified

9 person to chair it. Here, the lawyer's concern was that the two experts would both fail to discuss the central issue - they were reluctant to discuss the actions of an eminent consultant who was allegedly negligent. Another concern that there might be improper pressure applied by one expert on another. So the lawyers' concerns are often understandable. but the principle remains that they should usually not be there. if one side's lawyer attends, both should attend. See Smith v Stephens NLD 15 May 2001 QBD - in the spirit of a "level playing field." Note that in Hubbard, the point was argued that if experts meet and agree various issues this could mean that the parties were being denied the right to a full and fair trial -- i.e. a breach of ECHR Article 6. This argument was rejected. Expert Evidence at Trial Disclosure and use of the report. See CPR, Part Where a party discloses a report, any party may use that expert's report as evidence at the trial (there is no "ownership" of the report by the party who commissioned it). It should be recalled, however, that any report prepared prior to the commencement of the court action for the purpose of advice is likely to be privileged, and therefore not disclosable to the other party. Supplemental Reports. It may be that, following exchange of experts' reports, new facts and orlissues arise. In such circumstances, the expert may be asked to prepare a supplemental or updated report to deal with the changed circumstances. Equally, an expert may be asked to prepare a supplemental report to deal with points raised by the opposing expert which he now needs to deal with. In either case the court's permission would undoubtedly be needed and the expert should be clear that it has been allowed. The trial. The question of whether the expert will be called to give oral evidence, and if so, the sequence of events while he is in the witness box have been dealt with above in Part I. Expert's Fees - Court Control and the Assessment of Costs Contingency fees. Much litigation (particularly personal injury cases) is now funded by conditional fee arrangements (loosely called "no win, no fee"). Law firms take the risk. If the case is won, they get a "success fee", which will be recoverable from the other side. If not, no payment. What are the implications for experts? Solicitors may ask the expert to provide a quick preliminary view to help the solicitor to assess the case himself and decide whether to take it on. Often, this will be on limited information. The expert should therefore be careful, and take care to qualify any advice he gives. Solicitors may ask the expert to agree to defer payment of his fee until the end of

10 the case. This is acceptable (if unattractive), so long as payment is not conditional on the result. (See Code Para 9). Can experts charge on a contingency basis? See Code of Guidance, Para 9 - "Payments contingent upon the nature of the experts' evidence given in legal proceedings, or upon the outcome of a case, must not be offered or accepted. To do so would contravene the experts overriding duty to the court." What is the Court's view? See Factortame v Secretary of State for Transport [2002] EWCA Civ 932; [2002] 3 WLR Refers to the Code of Guidance. Concludes that contingency fees are "highly undesirable." Only in a very rare case indeed that the court will consent to an expert being instructed on a contingency fee basis (but note that an accountant's contingency fee was allowed in Factortame, because they were held not to have been acting as experts - they were giving advice and management services as "consultants" in the litigation rather than as expert witnesses). The experts' fees may be disallowed or cut down by the court at the end of the case (see the discussion of costs in Part I, above).. See Part 35.4 (4). Power to limit the amount of the experts fees and expenses that the party who wins may recover from the other party. See Home Office v Lownds. A detailed assessment of costs. Pointed out that the principle of proportionality applies to the expert and his fees (both as to whether they should be paid by the other side at all and if so, whether full amount should be paid). The court has the power to limit the amount. Implication: It does not mean the expert cannot recover full amount of his bill from the client. This should be made clear in the expert's "terms of appointment" letter. But may make things difficult with the client. Underlines the importance of time/activity records. R J Davis June 2011