New guidance for experts

It is more than two years since the Civil Justice Council (CJC) published the first draft of its ‘Guidance for the instruction of experts in civil claims’ (‘the guidance’).Now, the guidance has been finalised and, from 1 December 2014, it replaced the 2005 protocol that is currently annexed to CPR practice direction 35.

Given the time that has elapsed since the 2005 protocol was written, one might expect the documents to be radically different. However, the CJC has restricted itself to changes in presentation, shifts in emphasis, and just a few real innovations, many of which arise directly from the Jackson reforms or from comments made by Jackson LJ in his final report on civil costs. The main changes are discussed below.

1. Readability

A clue to the CJC’s thinking in deciding to make wide-ranging presentational changes is to be found in the opening paragraph of the guidance, which makes it clear that it is addressing not only experts and lawyers, but litigants too. This explains, perhaps, why the guidance is presented as a simple sequence of paragraphs, rather than set out like a code of conduct or civil procedure rules as a hierarchy of numbered provisions. The result is certainly more readable, although it would be difficult to say that it is any clearer than its predecessor.

In fact, to anyone familiar with the 2005 protocol, the new guidance is somewhat confusing, because most of the points it makes, while identical in substance to what was said before, are presented in a different order or expressed in new words.

That said, the basic structure of the documents is broadly identical, following an expert’s involvement in a case from being chosen and instructed by a party, through to giving oral evidence at trial.

Tellingly though, the new guidance ends with a new section on ‘sanctions’, as if to warn expert witnesses of the need to take particular care, now they are no longer immune from suit.

2. Jackson reforms

In his final report, Lord Justice Jackson noted that “there is nothing fundamentally wrong with the manner in which evidence is currently adduced in civil litigation, by way of witness statements and expert reports” (Executive Summary, paragraph 6.7 at page xxiii). Accordingly, he limited himself to making just two recommendations: that a party seeking permission to adduce expert evidence should provide the court with an estimate of the costs involved; and, that experts should be allowed to give oral evidence concurrently (‘hot tubbing’) where all the parties and the judge agree that this would be beneficial (part 6, chapter 38, paragraph 4.3 page 385).

Both these recommendations were implemented in the CPR (at CPR 35.4(2) and PD 35 paragraph 11 respectively) and feature clearly in the new guidance (see paragraphs 26 and 83).

A further point made in Jackson LJ’s final report, though not expressed as a formal recommendation, was that experts’ reports are sometimes better exchanged sequentially than simultaneously, since sequential service ensures that they address the real issues of expert evidence and avoid the duplication of factual materials that are not actually in dispute (chapter 38, paragraph 3.8 page 381).

The idea is picked up by the guidance in new wording on sequential exchange that is designed to ensure that the second expert report responds effectively to the first (paragraph 63). In addition,  where reports have been served in this way, the joint statement that the experts produce later on in the proceedings “should focus upon the areas of disagreement, save for the need for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert’s report” (paragraph 73).

In other words, the joint statement should be used, among other things, as an opportunity for the author of the first report to reply to any points made in the second.

Expanding on the idea that reports should cover the same ground and not be like “ships passing in the night” (Jackson LJ), the guidance now urges solicitors to seek to agree, where practicable, the instructions they give their experts, even when they are using different individuals rather than a single joint expert (paragraph 21).

Indeed, where experts discover that the basis of their instructions differs from that of the opposing expert, they are obliged to report the fact to the person from whom they receive instructions (paragraph 25).

The new guidance even goes so far as to say that “experts should try to ensure that they have access to all relevant information held by the parties, that the same information has been disclosed to each expert in the same discipline”, and that they should report any discrepancies to instructing solicitors “soon after accepting instructions” (paragraph 30). How this would work in practice, at a stage when experts generally work alone, without any need to contact their opposite numbers, is not entirely clear.

3. Experts’ responsibilities

As well as placing increased emphasis on sanctions (professional, civil and criminal) for failing to discharge their duties, the new guidance also puts pressure on experts in other ways. It insists that “those instructing experts must not instruct experts to avoid reaching agreement (or to defer doing so) on any matter within the experts’ competence”, and where such instructions are given, experts are not permitted to accept them (paragraph 77).

Experts are also told to use their discussions (among other things) to “reach agreed opinions on [the] issues, and, if that is not possible, narrow the issues”, though “not to seek to settle the proceedings” (paragraph 71) – an apparent reference to Jones v Kaney, in which one party’s expert felt obliged, in effect, to do exactly that.

4. Experts’ fees

There is a fair amount in the new guidance on experts’ fees, for example a statement that terms of appointment, which must be agreed at the outset, should normally explain that recoverable experts’ fees and expenses may be limited by the court (paragraphs 17 and 26). There is a shift of emphasis on the subject of outcome-based fees. Before, they were simply forbidden: the protocol says they “must not be offered or accepted” (paragraph 7.6). Now they are “strongly discouraged”, the guidance citing ex parte Factortame (no 8) [2008] QB 381, in which the court said that “it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement”.

But the position remains essentially unchanged. The issue is particularly relevant now that lawyers are allowed to enter into two kinds of outcome-based fee agreements: a conditional fee agreement, under which a percentage uplift on hourly rates may be charged in the event of success, and a damages-based agreement under which the claimant hands over a slice of any sums recovered (Damages-Based Agreements Regulations SI 2013/609). So there is an obvious temptation to instruct expert witnesses on the same basis.

However, neither arrangement is appropriate for an expert, whose stance should be that of a disinterested outsider, not a player with ‘skin in the game’, and whose loyalty is primarily to the court. As CPR 35.3 says: “It is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”

Evolution not revolution

All in all, the CJC’s new guidance is an effective document. It is more readable than its predecessor and so more user-friendly for the experts, lawyers and parties who will want to consult it. The document also takes into account the Jackson reforms and new case law, as well as dealing with a number of minor issues (such as inconsistency in experts’ instructions) that probably needed ironing out.

What it is not, though, is a radical reinterpretation of the role of expert and how he or she should be guided through civil litigation; more a case of evolution, then, than a true revolution. SJ

Hugh Lyons, pictured, is a partner and Giles Hutt a professional support lawyer at Hogan Lovells