Article by Richard Harrison of Laytons published in New Law Journal (LexisNexis), 27 February 2015
www.newlawjournal.co.uk

The inexpert expert

Richard Harrison provides a checklist for the witness who is an expert but not a courtroom regular.

The majority of experts know what they are doing. They are used to writing reports and giving evidence. Their expertise is of a nature regularly required in civil litigation and they can be instructed on the basis of past experience. Their reports will be, quite legitimately, based on off-the-shelf templates. They will have a good working knowledge of CPR Part 35, the relevant Practice Direction and the "Guidance for the Instruction of Experts" which replaced the previous "protocol" in December 2014.

Rare topics

Sometimes, however, an individual is required to provide an opinion on a topic on which they have a wealth of knowledge and experience but which rarely troubles the courts. They will be an expert in their field but not in the field of giving evidence to the court. They are an "inexpert expert".

Yet they are still bound by the rather complex, repetitive and diffuse rules referred to above and their instructing solicitors must get them up to speed, sometimes quite quickly.

User-friendly checklist

The following is an attempt to provide a more user-friendly checklist than can be garnered from the rules themselves. It does not address issues arising when a single expert is instructed jointly by the parties.

It is not complete: for that purpose, a package of the Rules and Guidance should probably be provided to the putative expert. However, it aims to structure the essentials in a logical way.

The framers of the CPR and its related material love the process of legislating by accretion when they spot a point which might enhance the convenience of the judiciary or spring a trap for practitioners. By way of example: the Practice Direction requires a statement that the expert understands their duty to the court and has complied with that duty [3.2 (9) (a); the new Guidance requires the addition of words to the effect that they will continue to comply with that duty. Belt and braces, or hook, line and sinker?

And so to the checklist.

Before appointment

Expertise

Do you have the appropriate expertise and experience for this particular instruction?

Conflict of interest

Do you have any potential conflict of interest?

Duties

Are you familiar with the general duties of an expert?

• You always owe a duty to those instructing you to exercise reasonable skill and care and, of course, to comply with any relevant professional code.
• However, when you are instructed to give or prepare evidence for civil proceedings, you have an overriding duty to help the court on matters within your expertise. This duty overrides any obligation to the person instructing or paying you.
• You should be aware of the "overriding objective" for courts to deal with cases justly and that you are under an obligation to assist the court in this respect. This includes dealing with cases expeditiously and fairly and proportionately (keeping the work and costs in proportion to the value and importance of the case to the parties).
• You should assist the court by providing objective, unbiased opinions on matters within your expertise. Those opinions should be independent, regardless of the pressures of litigation. A useful test of 'independence' is that you would express the same opinion if given the same instructions by another party. It is not your role to promote the point of view of the party instructing you or engage in the role of an advocate or mediator.
• You should make it clear-
  • when a question or issue falls outside your expertise; and
  • when you are not able to reach a definite opinion, for example because you have insufficient information.
• If, after producing a report, your view changes on any material matter, such change of view should be communicated to all the parties without delay and, when appropriate, to the court.

Sanctions for breach of duties

• Any failure to comply with the rules or court orders, or any excessive delay for which you are responsible, may result in the party who instructed you being penalised in costs, or debarred from relying upon the expert evidence.
• There are circumstances where you might personally be subject to sanctions.

Logistics

Have you considered the following issues:

• What are the specific services required of you: produce a formal written report; answer questions in writing; attending formal meetings with other experts (this might be the most unexpted but possibly onerous obligation); attending at court?
• Can you provide those services within a reasonable time and at a cost proportionate to the matters in issue?
• Are you available to attend trial if asked?

Terms of appointment

• What is the deadline for delivery of the report?
• What is the basis of your proposed charge? If it is an hourly rate, give an estimate of time. Consider what travelling expenses and other disbursements will be charged?
• Specify your proposed fees for attending court, and any cancellation fees.
• Specify the time for making payment and where you understand the funds will be coming from.
  (Note that there is a possibility of fees being restricted by the court)

Process of instruction

• Be aware of the requirement of us that we should provide clear instructions.
• Please note that you are required to confirm whether the instructions are accepted.

Some specific rights you have

• You have right to withdraw: however, you will need to consider the relevant rules carefully and not take such a decision lightly.
• You have the right to ask court for directions. Once again such a step will need careful consideration.
• You can ensure that you have access to all relevant information held by the parties and that the same information has been disclosed to the other expert in your discipline. You should seek to confirm this as soon as possible after accepting instructions and notify us of any omissions.

Contents of opinion

The report should:

• Be addressed to the court and not to those instructing you.
• Give details of your qualifications. These details should be commensurate with the nature and complexity of the case. It may be sufficient to state any academic and professional qualifications. However, where highly specialised expertise is called for, you should include the detail of particular training and/or experience that qualifies you to provide that specialised evidence.
• Contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based. The imperative is transparency. The term "instructions" includes all material that solicitors send to experts. These should be listed, with dates, in the report or an appendix. The omission from the statement of 'off-the-record' oral instructions is not permitted. Courts may allow cross-examination about the instructions if there are reasonable grounds to consider that the statement may be inaccurate or incomplete.

Relevance

• The report should make clear which of the facts stated in the report are within your own knowledge and those which you assume.
• The report should set out those facts and any literature or material on which you have relied in forming your opinions.
• You should confine your opinions to facts (whether assumed or otherwise) which are material to the dispute and provide opinions only in relation to matters which lie within your expertise. Questions of fact and opinion should be kept separate. You should indicate without delay where particular questions or issues fall outside your expertise.
• You should state if an opinion is provisional, or qualified. You should state where you consider that further information is required or if, for any other reason, you are not satisfied that an opinion can be expressed finally and without qualification.
• You should inform us without delay of any change in your opinions on any material matter and the reasons for this.

Hypothetical facts

• Where there are material facts in dispute you should express separate opinions on each hypothesis put forward. You should not express a view in favour of one or other disputed version of the facts unless, as a result of particular expertise and experience, you consider one set of facts as being improbable or less probable, in which case you may express that view and should give reasons for holding it.

Range of opinion

• If the mandatory summary of the range of opinion is based on published sources, you should explain those sources and, where appropriate, state the qualifications of the originator(s) of the opinions from which you differ, particularly if such opinions represent a well-established school of thought.
• Where there is no available source for the range of opinion, you may need to express opinions on what you believe to be the range that other experts would arrive at if asked. In those circumstances, you should make it clear that the range that you summarise is based on your own judgement and explain the basis of that judgement.
• If you are not able to give an opinion without qualification, you should state the qualification; and where there is a range of opinion on the matters dealt with in the report you should
  • summarise the range of opinions; and
  • give reasons for your own opinion;

Conclusions

A summary of conclusions is mandatory. Generally the summary should be at the end of the report after the reasoning. There may be cases, however, where the court would find it helpful to have a short summary at the beginning, with the full conclusions at the end.

Formal statements

You will need to include the following:

Best of luck

By now, you will be aware that we live in a complex litigation world where Pelion is sometimes piled upon Ossa. Which would be great were you being instructed to opine on issues of Greek mythology. However, it is hoped that the above provides some structure.

Richard Harrison is a partner at Laytons Solicitors LLP

Richard Harrison

richard.harrison@laytons.com

Laytons Solicitors LLP
2 More London Riverside
London SE1 2AP

www.laytons.com