One of the greatest changes arising from the New Civil Procedure Rules is the new approach to the use of expert evidence.  The days of the “hired gun” are gone.

The “overriding duty” of the Expert Witness is now clearly stated in the Rules to be to the Court (CPR part 35.3), and not to the Party instructing him.  Furthermore both the Court and the Parties, have a duty to restrict expert evidence to what is reasonably required to resolve the proceedings (CPR part 35.1).  In this, as in other areas, proportionality is vital.

The Court will allocate a claim to a "track." (CPR part 26.5 (1)) There are three tracks:-

The Small Claims Track, generally for any claim which has a financial value of not more than £5000.

The Fast Track, for claims having a financial value of not more than £15,000.

The Multi Track, for all other claims.

The following comments mainly relate to “Multi Track Cases”, as in “Fast Track Cases” expert evidence will be received only in writing unless the court considers it necessary in the interests of justice for the Expert to attend.  (CPR part 35.5 (2)) However the Parties may still employ the Expert as an "Expert Adviser."

The need for expert evidence on a particular point has to be considered from the start.  The Allocation Questionnaire, normally completed by the respective solicitors, asks the Parties about Experts, but even before this it is a good idea to have considered the matter.  In particular, in cases where the outcome is dependent on the Court accepting the views of an Expert, early disclosure to the other side of the views of that Expert in the spirit of openness and co-operation will undoubtedly help when the question of costs is being considered at the end of the day.

The impact of the New Rules on Experts is that the Court will control their use, or non-use, from the outset.  In Multi Track cases where there is a Management Conference, this is the time when the Court will direct what the expert evidence should be. By this stage a Party should have identified any issue on which expert evidence is needed and have decided the best way in which to present such evidence.  Indeed in applying for permission to call expert evidence the Party needs not only to identify the field in which such evidence is required but also where practicable the Expert who is going to be used.  (CPR part 35.4) Anecdotal evidence suggests that Masters and District Judges appear increasingly to wish to include the name of a specific Expert in directions that they make.

There is an obvious need for an Expert to be appointed, as an "Adviser", at a much earlier stage in the litigation process than happened in the past.

A case typically develops in stages:-

·        Initial technical investigation of problem;

·        Contemplation of litigation;

·        Commencement of litigation;

·        Expert evidence (if permitted by the Court) and

·        The trial.

The Expert can be involved in each of these phases but his role may differ in each phase.  He may act as an Expert Adviser throughout or his participation in that role may be limited to the first three phases as he could be appointed to act as the Expert Witness in the last two phases.

It has been suggested by some Counsel that in a complex technical case it would be preferable for the Adviser to continue acting in that capacity.  Another Expert would then be appointed as the Expert Witness to avoid any subsequent allegation of possible conflict of interest.  However an Expert acting in compliance with the new Civil Procedure Rules would have no difficulty in acting initially as the Adviser and then the Expert Witness.

This role is not defined in the New Rules but has developed as a consequence of the limitation placed on the use of Experts Witnesses.

The Expert Adviser can be appointed by either Party, or both Parties, without seeking the Court's permission.  He will assist the litigation team by:-

·        Giving technical advice to the Instructing Party;

·        Highlighting main expert issues;

·        Assisting instructing lawyer with a case plan and the statement of case;

·        Assisting instructing lawyer in calculating quantum for a case conference and assisting in consideration of Part 36 offers (formerly known as "Payments into Court");

·        Assisting in considering the Report of a Single Joint Expert, preparing a critique and drafting written questions;

·        Assisting Counsel with cross-examination of the Single Joint Expert in court;

·        Giving general technical assistance, with the exception of preparing a report for use in evidence.

It should be noted that the Expert Adviser, unlike the Party Appointed Expert Witness or Single Joint Expert, would have no immunity from an action against him.  However his communications with the Instructing Party and the litigation team will be privileged.

The Court may permit the Parties to present expert evidence on a particular point and each may have their own Party Appointed Expert.  However, the New Rules introduce the concept of the Single Joint Expert.  (CPR part 35.4)

There are distinct advantages in considering the use of a Single Joint Expert:-

Saving of costs - although if the Parties cannot agree on Expert at the outset, that may require applications to the Court to resolve the matter;

Seeing the instructions that the other side sends to the Expert.  (CPR part 35.8 (2)) in the case of Experts instructed by each Party, they must disclose the substance of the instructions in their report, but privilege is not waved in respect of the actual instructions.

The second advantage does of course apply to both Parties and it is notable that the Rules do not require simultaneous exchange of instructions to a Single Joint Expert, simply that the other side is provided with copies of any instructions sent.  What would therefore seem to be important when directions are given for the appointment of a Single Joint Expert is that the Court directs that instructions to the Expert be provided by a particular date and that instructions are exchanged.

There are some cases where the Single Joint Expert will be more appropriate than others.  This would particularly apply where the technical issues are not complex, as for example on matters of quantum such as the cost of remedial works. Clearly if the Single Joint Expert comes to a view which favours one side, there is little the disappointed party can do apart from hoping to shake the Expert at trial under cross examination.

The New Rules introduce the concept of Experts being asked written questions by the Parties.  (CPR part 35.6)  This applies to both the Party Appointed Expert and the Single Joint Expert.  This could prove to be an invaluable tool, not only for the Expert Report that is incomprehensible, but also, as a way of testing the evidence in advance of cross-examination.

However, there are limits to the use of this rule:-

The questions must be put within 28 days after a service of the written Expert's Report.

The questions can be put only once.

Unless the other side agrees or the Court gives permission, questions can only be for the purpose of clarification of the Report.

The Practice Direction originally gave no guidance as to which Party should pay the Expert’s fee for providing answers to written questions.  This has now been remedied by the addition of a paragraph:

"The Party or Parties Instructing the Expert must pay any fees charged by that Expert for answering questions put under Rule 35.6."

The Court has power to order that information in the possession of one Party be provided to the other in order for an Expert Report to be prepared.  This is particularly useful where the information cannot be obtained on a request for further information, or on disclosure.  (CPR part 35.9)

The Rules provide that the Expert may by written request seek the directions of the Court in carrying out his functions as an Expert.  (CPR part 35.14) However, it is improbable that an Expert will consider it necessary to use this power on a frequent basis.  A Single Joint Expert who cannot obtain information from one Party or finds a Party uncooperative could seek the directions of the Court.  So, also could an Expert who needed clarification as to the extent of the issue on which he was being asked to advise.

It may be considered sensible for an Expert, who has a primary duty to the Court, having access to it, but it is an example of the decrease in control that a Party will have over any expert evidence.

Meetings of Experts were frequently directed under the old regime, particularly in the Official Referees Courts. ( Now the Technology & Construction Courts) This principle is now contained in the New Rules.  (CPR part 35.12) The Court may direct the issues on which discussion should take place, and require the Experts to file a written statement with the Court showing the areas of agreement and the issues unresolved.  It is notable that the rule does not require a meeting; simply discussions and modern technology means that this can take place in a variety of ways.

The instructions given to the Party Appointed Expert Witness are no longer privileged and the Expert can be cross-examined on his instructions if the Court permits.  This would only be allowed if there are reasonable grounds for believing that the summary in the Expert’s Report is not accurate or complete (CPR part 35.10 (4)) or it is in the interests of justice to do so.  The instructions do not have to be disclosed automatically, only if the Court directs on the same grounds.

The removal of legal privilege means that greater care will have to be exercised over communications between a Party’s solicitor and Expert Witness due to the risk that cross-examination may be allowed in relation to those communications and disclosure of the instructions ordered.  This may not only result in information coming to light that otherwise would be protected from disclosure by privilege, but may allow the other side to portray the Expert as partisan and lacking independence.

An Expert should not be supplied with a document that it is undesirable that the other side should see, for example a draft Witness Statement.  There will be a risk that such documents may be disclosable, as they certainly will be if reference is made to the document in the Expert’s Report.

The Expert Report must comply with the requirements set out in the relevant Practice Direction and cover specific matters contained in the New Rules.  (CPR part 35.10) The Model Form of The Academy of Experts is currently being revised to comply with the Rules and Practice Direction.

Construction Experts will generally be involved with cases before the Technology and Construction Court.  (TCC) The current  Practice Direction of the TCC does not specify additional requirements for the Expert Report.

A draft Code of Guidance for Experts under the Civil Procedure Rules has been prepared by a Working Party under terms of reference given to it by the Vice-Chancellor.  The Code of Guidance, as and when approved by the Vice-Chancellor, will be converted into a Practice Direction.  This will in the course of time result in greater uniformity in the format of reports.

The overriding duty imposed by the New Rules means that the Report should demonstrate  the independence of the Expert and for the overall tenor of the Report to reflect this independence.  The Report should not be hostile in tone to the other side or adversarial in character.  It should adopt an objective and detached stance.  This is more likely to impress the Court than a Report that is clearly partisan.

It is a requirement that at the end of the Expert’s Report there is a statement that the Expert understands his duty to the Court and has complied with it.  (CPR part 35.10 (2)) This bald statement can be amplified with a view to emphasising the Expert’s independence and impartiality.  A statement can be added that it is appreciated by the Expert that this duty overrides that owed to the Party instructing him.  It can further be stated that the Expert has not, without forming an independent judgement, included or excluded anything that has been suggested to him. This will emphasise the nature of the duty owed by the Expert.  The Expert may include a statement in the Report to the effect that he has not entered any arrangement under which the amount of payment of his fees depends on the outcome of the case.  This will demonstrate the independence of the Expert.  The Academy of Experts has, with the approval of the Vice-Chancellor, published a Declaration covering these matters.

A further new requirement is that the Report must contain a statement setting out "the substance of all material instructions (whether written or oral) on the basis of which the Report was written."  (CPR part 35.10 (3)) This statement should include all facts and instructions given to the Expert that are material to the opinions expressed in the Report or on which those opinions are based.  The objective is to prevent the suppression of material matters that do not support the case of the Party instructing the Expert.

A statement of truth must also be included in the following form:-

"I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct."

It should be noted that it would be a "contempt of Court" to verify a Report in this way without an honest belief in the truth of the Report.

There is a general requirement that the Expert’s evidence should be in writing (CPR part 35.5) and that it complies with the requirements set out in the Practice Direction (CPR part 35.10 (1)).  The requirements that need to be complied with are that the Report:

·        Must be addressed to the Court and not to the Party;

·        Contains the Expert’s qualifications;

·        Gives details of any literature or other material relied on by the Expert in making the Report;

·        States who has carried out any tests or experiments used in the Report, give their qualifications and state whether the Expert supervised them;

·        Must, if there is a range of opinions in relation to an issue in the case, summarise the range and give reasons for the Expert’s opinion;

·        Contains a summary of the Expert’s conclusions;

·        Contains a statement that the Expert understands his duty to the Court;

·        Contains a summary of the substance of all material instructions ;

·        Contains a statement of truth and

·        Complies with the requirements of any approved Expert’s Protocol.

The Court can limit the amount of fees that one party can recover from another in relation to an Expert Witness.  (CPR part 35.4 (4)) This will clearly not prevent a large corporation spending a lot of money on a high profile Expert, but may discourage other less affluent parties from spending money that they will not be able to recover.  Provided a Party appreciates that the costs will not be recoverable, there is no reason why an "Expert Adviser" in a particular field, rather than an "Expert Witness", cannot be employed as part of the litigation team in a large-scale litigation.

In the case of a Single Joint Expert, the Court can limit the fees to be paid (CPR part 35.8 (4) (a)) and fees will, as far as the Expert is concerned, be borne by the Parties jointly and severally.  Obviously the Party in whose favour a costs order is ultimately made will be able to recover their share. 

The role of the Expert Witness has radically changed under the New Civil Procedure Rules and he can no longer be considered as part of the litigation team.

The permission of the Court is required for a Party to present expert evidence.  The Court will need to be persuaded that a Party Appointed Expert is necessary and the Court may require the appointment of a Single Joint Expert.  This may lead to the use of a Single Joint Expert in many cases.  However, there will be new opportunities for the Expert to act as an "Adviser" and in this role he would be part of the litigation team.

The Courts will be seeking to ensure that Experts act in an independent and impartial manner and to take action if they are perceived as not doing so.  It is important that the Expert does not act as an advocate.  Much greater caution will now have to be exercised with regard to the instructing of Experts, so that the impartial position of the Expert Witness is not adversely affected and information is not given to the Expert that otherwise would be protected by privilege from disclosure.

The Expert must ensure that his report complies in all respects with the requirements of the New Civil Procedure Rules and the relevant Practice Direction.  The Report must give a range of opinions on an issue and demonstrate a balanced judgement.