No more hired guns
Most of the latest changes to the Civil Procedure Rules describe practices that those who use experts should already carry out, but practitioners will find it helpful that these are now supported by the courts, says Georgina Squire
There is no doubt that the Civil Procedure Rules (CPR) have eradicated any attempts to make an expert the hired gun of the party he or she represents. The CPR emphasise that the expert's overriding duty is to the court '“ not to his or her client. Experts are also urged to attempt to narrow the issues in dispute, with the intention of saving time and cost. Unfortunately, from time to time the client appointing the expert may have an expectation that 'their' expert is going to act in 'their' favour. It is our role, as solicitors, to manage that misunderstanding and handle the expert evidence in such a way as to achieve the best possible outcome for the client within the framework of the rules.
The 50th update to the CPR came into force on 1 October 2009, and contains important amendments to CPR 35 and PD 35 which practitioners should now consider when dealing with expert evidence.
New formalities for expert reports and questions
The substance of an expert report will be governed by the issues on which the expert is asked to opine. However, there are a few new formalities to be applied. Expert reports must still contain a statement that the experts understand their duty to the court and have complied, and will continue to comply, with that duty. However, the wording of the Statement of Truth on an expert report has changed and so practitioners should ensure the correct wording is used.
There is a new requirement that written questions to experts are to be proportionate. This codifies practice which has existed for some time on the part of the court in disallowing questions which it regards as oppressive in number and content and making costs orders against a party asking for them wrongly.
It has become mandatory (as opposed to good practice) for a party sending questions to an expert (CPR 35.6) at the same time to send them to the other parties to the action.
Restricting expert evidence
The practice in fast track and small claims, to the extent expert evidence has been allowed, has for some time been to appoint one expert. In personal injury cases, where the claimant has obtained expert evidence on which to base their claim, it has become common practice for the defendant to accept that expert as a single expert appointed on the case. In other types of dispute, such as, for example, professional negligence or construction, it may be more appropriate for the parties to appoint a single joint expert. CPR 35.4(3A) introduces a provision, in both fast track and small claims track cases, that if the court gives permission for expert evidence, it will usually be for just one expert. Unless one of the parties has already obtained a report (e.g. under protocol provisions), the court will usually not want to see party-appointed experts in these tracks.
PD 35.7 implements a list of criteria for the court to consider when deciding whether expert evidence should be given by one expert, rather than party-appointed experts. They form a useful guide to the decision making, and include such issues as whether it is proportionate for the parties to have their own expert considering the amount in dispute, the complexity of the issue and the importance to the parties.
As part of this analysis, the court will consider the option of appointing a single joint expert (SJE), and whether such an appointment is likely to help the parties and the court resolve the issues more quickly and be less costly than party-appointed experts. The court will look at the issues on which such evidence is to be given, and whether any experts have already been appointed. It will consider whether questions to a SJE would deal conclusively with all the issues or still leave some to require testing prior to trial.
These guidelines will provide information which will go into the melting pot of evaluating the most appropriate form of expert evidence. The key for the practitioner is to ensure that the cost of such evidence does not become disproportionate to the value of the claim and that the person being appointed is sufficiently well qualified to give a view on which they and their client will be content to rely.
Expert meetings: reinforced rules
The new provisions on discussions between the experts largely codify existing practice and do not contain anything that those who have handled litigation involving experts should not know already. For example, the parties should consider whether such discussions would serve any useful purpose and, if so, when they should be held as they are not mandatory. A key feature of such discussions, sometimes overlooked by experts and practitioners, is that their purpose is to agree and so narrow issues in dispute, and not to settle cases. The rules also cover issues such as attendees at those meetings, agendas and the drawing up of joint statements afterwards, reflecting the areas of agreement and what is not agreed.
Most of what is contained in the 50th update is already well known to those who use experts to assist in litigation. However, it is helpful to see that current practice is now largely endorsed by the courts.