Experts Under the Spotlight
Autumn 2014 will see the introduction of the new Guidance for the Instruction of Experts in Civil Claims issued by the Civil Justice Council. It echoes the changes heralded by the 2013 Jackson Reforms, and is intended to replace the guidance which is currently attached to Practice Direction 35 of the Civil Procedure Rules.
The provisions which govern the instruction of Experts are contained within Rule 35 of the Civil Procedure Rules and the accompanying Practice Direction.
Rule 35.2 (1) denotes an ‘expert’ as a person who has been instructed to give or prepare expert evidence for the purpose of [court] proceedings. Rule 35.3 states that the expert’s principal duty is to assist the court, and this duty overrides any duty that the expert may have to those who are instructing him or paying him.
An expert’s duties and responsibilities can be briefly outlined as:
1. To exercise reasonable skill and care to those instructing them.
2. To comply with any relevant professional code.
3. To provide independent opinions (i.e. that that would say provide the same opinion to the opposing party if they were so instructed)
4. Not to advance the position of their instructing party.
5. To assist the court on matters within their expertise, such duty overriding any duty to the party paying or instructing them.
6. To restrict their opinions to matters that are material to the dispute and solely in relation to matters which are within their expertise.
7. To take account of all material facts placed before them.
8. To be aware of the overriding objective that courts must deal with cases justly, proportionately, fairly and expeditiously, and to assist the court in achieving this.
The new Guidance broadly reflects the existing duties and responsibilities (above), but is more focussed and succinct. It also make specific reference to costs and cost budgeting as well as the imposition of sanctions in the event of an expert failing to comply with Rule 35, the Practice Direction (and Guidance) and Court Orders.
Paragraphs 17(a) and 26 of the 2014 Guidance make specific mention of the possibility of expert’s fees being limited by the Court generally as well as via the cost budgeting regime forming part of all multi-track cases issued post-April 2013. In conjunction with this, experts will also be required to provide cost estimates for the Court’s consideration during the cost budgeting process.
Paragraphs 86 – 89 of the 2014 Guidance deal specifically with sanctions. These are worth extracting because of their obvious implications.
86. Solicitors and experts should be aware that sanctions might apply because of a failure to comply with CPR 35, the PD or court orders.
87. Whether or not court proceedings have been commenced a professional instructing an expert, or an expert, may be subject to sanction for misconduct by their professional body/regulator.
88. If proceedings have been started the court has the power under CPR 44 to impose sanctions:
a. Cost penalties against those instructing the expert (including a wasted costs order) or the expert (such as disallowance or reduction of the expert’’ fee) (CPR 35.4(4) and CPR 44).
b. That an expert’s report/evidence be inadmissible.
89. Experts should also be aware of other possible sanctions:
a. In more extreme cases, if the court has been misled it may invoke general powers for contempt in the face of the court. The court would then have the power to fine or imprison the wrongdoer.
b. If an expert commits perjury, criminal sanctions may follow.
c. If an expert has been negligent there may be a claim on their professional indemnity insurance.
Such sanctions are not to be considered lightly in view of recent judicial criticism of experts. The case of Hirtenstein v Hill Dickinson LLP  EWHC 2711 is one such case where it fair to say that the judge did not hold back in his criticism. The facts of the case themselves are not relevant to the criticisms levied, but the judge was damning of both parties’ experts, referring to one expert as being ‘careless’ and not ‘fit to act as an expert witness’, and further when faced with expert evidence which the judge described as a being akin to a ‘moving target’ and expert opinion based on ‘gut feel’, having to remind the experts that their opinions ‘need to be supported be a transparent process of reasoning.’ Ouch.
The changes within the 2014 Guidance bring a very clear end to the tradition of immunity from suit for experts. Whilst initially this may be unwelcome news for some, ensuring compliance with the Guidance will mitigate its effect.
Helpfully, RICS have updated their own guidance on Surveyors Acting as Expert Witnesses (4th Ed) to assist their members in following the changes and providing practical tools to avoid the pitfalls. This is certainly worth a read.
In summary it would appear that whilst the changes within the 2014 Guidance are not significant in number, they are certainly significant in effect and will place greater responsibility upon experts and those instructing them to ensure compliance with Rule 35.
For further information please contact Katy Sandel at Kitsons on 01392 455965 or firstname.lastname@example.org