Experts | Departing from tradition

Significant changes to the way we litigate in England and Wales were implemented on 1 April 2013. The Civil Justice Reforms that follow on from Lord Justice Jackson's Review of Civil Litigation Costs Final Report will change the landscape for litigation practice. The role of the expert witness will also be greatly affected by these changes.

There are two things that will affect experts, and a third that is likely to cause some friction and pressures: concurrent expert evidence.

The practice that caused much amusement a few years ago when Jackson LJ returned from his world tour, was "hot-tubbing". Well, it looks like you lucky experts will all get to hot tub with your fellow experts. In reality, it is a lot less exciting than it sounds, but is a significant departure from the traditional approach. The traditional approach to receiving expert oral evidence is that the experts give their evidence sequentially. First the experts for the claimant and then the experts for ?the defendant.

The downside was that the claimant's expert could not comment on anything that the defendant's expert said that was not in the defendant's expert's report.

This new approach of concurrent expert evidence allows both experts to be sworn in at the same time and for the evidence to be received issue by issue. So, for instance, the quantity surveyors are sworn in together and then the evidence is received on each issue in dispute.

I was involved in a trial recently where concurrent expert evidence was ordered, the process was as follows:

• Each expert was able to give general evidence about their particular expertise, methods and approach to the issues. This included cross examination.

• We then commenced dealing with the issues one by one. The claimant's expert would lead off the discussion followed by the defendant's expert. There would be examination in chief followed by cross examination of each expert.

• There would thereby be a controlled exchange of comments on each other's evidence, aimed at explaining the differences to the judge.

• We would then move on to the next issue and follow the same process and keep moving on until all issues were eventually dealt with.

• Occasionally the judge allowed the experts to leave the court to confer and then resume giving evidence. This was useful where the experts wanted to get very technical and confer over, say, a drawing or piece of evidence that had been produced as a result of the factual evidence. They could return from the adjournment with an agreed position.

The new rules would allow the judge to take the lead in asking questions, rather than the respective counsel asking the questions in the first instance. Time will tell if this inquisitorial approach gains traction, but at the moment I think the preference is likely to be to let counsel do his or her job and for the judge to ask questions if counsel does not ask the question on the judge's mind.

The procedure does have an advantage in that it allows the judge to make a direct comparison between the two experts and does appear to reduce the time taken to receive oral expert evidence and so reduce cost. From the judge's point of view all the expert evidence about an issue is all together, so when the judge comes to write his judgment all the material is together. With the traditional approach the judge has to go through his note and identify all the evidence on one issue and then write up the judgment flicking through the note or transcript. Having all the evidence together should speed up the time to draft judgments. The downside in the case I did, was that it required a second bundle to be produced and maintained for when the two experts give evidence.

Cost budgets ?The new CPR rules require the parties to submit cost budgets very early in the litigation. These budgets are not just for information, the courts will be managing the parties budget. Once the budget is agreed or approved by the court a party will not be able to depart from it without the courts approval. There will be cost consequences if a party exceeds its approved budget by 20 per cent.

Further the Civil Procedure Rules have been amended to make the provision of a budget for the cost of the expert evidence, and a clear description of the issues to be covered as part of the procedure for applying to be given permission to rely upon expert evidence. If the parties are going to be required to provide a cost budget which has consequences if it is exceeded without the court's approval, then you can guarantee that the experts are going to become involved in the process of setting the budget and explaining any variation from the budget to the client and their advisers.

The process of cost budgets has been trialled in the Technology and Construction Court for some time with an increasing degree of sophistication. It does require a reasonable amount of consideration of the issues and how they will be approached in the trial, which in turn suggests a reasonable degree of knowledge of the issues. It is likely that experts are going to need to produce fairly sophisticated plans and cost models in order to set proper budgets for construction litigations. This will bring into sharp focus a consideration of what issues really matter in the dispute, how they can be assessed and what will be the most cost effective route to assess them.

It is likely that this process will mean that experts will be under pressure to cap their fees or even quote lump sum prices for reports. Time will tell what the consequences may be, but time pressures may result in quality issues.

In order to set a budget or quote a lump sum the experts and the lawyers will need to have a clear idea of the scope of the report before the litigation commences. This is fine in large cases where the issues are well rehearsed before trial, but on smaller cases it is quite common for a party to commence a litigation without any idea of the expert evidence needed. This practice will increase the front end cost on the lower value litigation.

Contingency fees?It is easy to see that if the lawyers are going to be subject to serious cost management regime, and possibly a contingency arrangement, that there will be pressure on the experts to join the cause. The temptation and pressures will be significant.

The Academy of Experts Judicial Committee Guidance on Contingency Fees states that the expert being engaged on any form of contingency fee is incompatible with the expert witnesses' duty of independence and impartiality. The current RICS Practice Direction and Guidance Note says that it will be allowed only in "exceptional circumstances" and requires the member to explain the risk that the tribunal will not accept the evidence of a surveyor procured by a method that is contingent on the outcome.

I understand that the RICS are reviewing their Practice Direction.

The Civil Procedure Rules state that: "Although not expressly covered by the rules or practice direction, it would clearly not be acceptable to the court for an expert to be paid on any form of contingency arrangement, including where the lawyers are working on a conditional fee agreement. Contingency arrangements for an expert witness would undermine the appearance and possibly the reality, of the 'independence' and their overriding duty to the court."

The position is clear that the expert really cannot be procured on a contingency fee basis and should only accept instructions to act on an hourly rate or lump sum fee. Experts need to resist this pressure and advise their clients of the very real risk that the tribunal will give no weight to an expert report procured on a contingency basis.

There is however a growing role for the hired-gun adviser. Someone who is not the expert who will give evidence to the court, but someone hired to advise on the technical issues and the tactics surrounding those issues. There would appear to be no bar on this hired gun being remunerated on a contingency fee. In Factortame & Others v Secretary of State for the Environment and Regions No 2 [2002] EWCA Civ 932, such a practice was accepted and costs recovered on the basis that accountants were hired to advise and assist the solicitors, not to give expert evidence but to carry out support work for the expert. This in itself creates pressure as the expert will be under pressure to simply rubber stamp the hired gun's views. There is no doubt that the new regime will impact on how expert witnesses carry out their very important role.