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Experts and what to do with them: 17th April 2007
Tony started by observing that Lord Woolf in "Access to Justice" had been critical of the large litigation support industry and had described it as a greater social ill than lawsuits. The point was to narrow issues rather than multiply them. Tony distinguished between fact finding and providing an opinion. The Civil Procedure Rules (CPR) had resulted from the Woolf Reforms. Part 35 of the CPR and its Practice Direction were where experts and assessors are dealt with. They were followed by a Protocol published by the Civil Justice Council (Protocol for the Instruction of Experts to give Evidence in Civil Claims). It was drafted for use in litigation but is useful in arbitration and to a lesser extent in adjudication. Tony pointed out that the CPR and Direction did not deal with the following but the Protocol gives guidance. Those instructing experts should consider carefully whether expert evidence is really needed. There are two aspect of expertise:
It is important to limit the expert's brief to what is needed and he should have the appropriate expertise for his task. Is an expert surveyor, say, required or someone with expertise at being an expert? Under the CPR a court can limit the extent of expert evidence, and arbitrators have similar powers under S34 of the Arbitration Act 1996 although seldom used. he Expert's overriding duty is to the tribunal and this overrides all other duties. He/She must: be independent of the Parties and unaffected by the exigencies of the litigation, and must not advocate their client's case. Tony was recently an expert in a matter where he and one of the other experts adjourned an experts' meeting because their opponent insisted upon advocating for his client. No progress was being made. The Expert should give the same advice regardless of which disputant pays him; the expert evidence should be the same. It is important when considering who to appoint as expert whether they will produce what is needed and meet their opposing expert etc. in compliance with directions as to time. Novice lawyers often send instructions at short notice, without proper detail or an indication of when testimony might be needed. Sometimes vital information is missed from instructions or superfluous detail confuses matters. The Expert should ask for clarification of anything in the papers or instructions that is unclear. Some of the best instructions Tony ever got were drafted by counsel who explained specifically what was needed, but also what was not. Are there conflicts of interest? Without proper details with the enquiry this might be missed. What are the Expert's Terms of Appointment, cancellation charges etc? Public bodies often pass fee accounts for costs taxation, or audit. The Expert should be made aware if this is to happen. Contingency fees are not permitted by most professional bodies and judges frown upon them. The Expert should have no interest in the eventual outcome. The Courts might make instructions as to experts, often a joint expert. Arbitrators should enquire about the use of experts early on, in the preliminary meeting. The CPR requires the expert's instructions to be detailed in the eventual report. This is good practice before other tribunals. The Expert has a direct duty to comply with court instructions. Tony believes Arbitrator's Orders should be similarly regarded. A court can order a solicitor or expert to pay costs thrown away. Tony once discovered when acting as an arbitrator that his directions to an expert had been countermanded by the expert's instructing solicitor. Tony made a costs order against the party concerned. There are particular requirements of experts in the CPR: a statement of truth, a declaration of the duty of the expert. Other tribunals, e.g. arbitrators, should require the same. Court appointed single experts are becoming quite common, particularly in the County Court, and the court can insist on the disputants agreeing to this. In smaller cases it saves costs and is very worthwhile. It is not so common where large sums are disputed. In these the instructions to joint experts are often separate and not joint. There, the Expert's Terms and Conditions should be clear upon who pays for what in any interim fee accounts. It is not absolutely clear in an arbitration whether the parties are jointly and severally liable for a joint expert's fees. Again, the Terms of Engagement should deal with potential difficulties here. In court proceedings there is joint and several liability, so perhaps there is a case for practising experts to have different terms for use in court compared to those for other tribunals. One of the things that might make obtaining a suitable expert difficult are matters of proportionality and caps on fees. Particular problems exist in the use of experts in adjudication. Most adjudication processes, including the statutory scheme, ignore experts. In an especially adversarial adjudication the time factor can preclude the proper use of expert evidence. An expert here owes the same duty and obligations as elsewhere but the following difficulties arise:
When Tony finished his talk there was a lively debate touching upon: audit policies of public bodies; the separation of instructions requesting advice from instructions desiring testimony; the need for appropriate experience of doing that upon which you are asked to report, do not give evidence on a negligent house survey if you have not done such a survey for some time; and the relative importance of expertise in the subject-matter compared to expertise in giving evidence. On balance the former was held to prevail. Report by Philip Fidler |
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Tony
Emsom is a Chartered Building Surveyor, Chartered Arbitrator, Adjudicator, and
Expert Determiner. As an expert witness his primary role has been as a building
surveyor. He gave a talk at Reigate on the proper function of experts in
helping tribunals and the pitfalls that can arise both for the expert and for
those relying upon them, including the tribunal concerned.