United States: Rights and Duties of Expert Witnesses in English Litigation

The Civil Justice Council¹ has published a "protocol"² for expert witnesses which expressly aims to consolidate the guidance previously given to expert witnesses when interpreting the Civil Procedure Rules and their associated Practice Directions³.The protocol came into force in England and Wales on September 5, 2005.

We set out below some of the practical issues arising out of this protocol, which clients and experts alike should consider.

Such clarification was necessary because, prior to the protocol, there were two codes of practice (issued by the ExpertWitness Institute and the Academy of Experts). The protocol applies to all experts who are or have been instructed to give or prepare evidence for the purpose of civil proceedings in a court in England and Wales. It takes as its starting point the overriding objective to avoid litigation in general and to manage efficiently proceedings where litigation cannot be avoided.

Most importantly, failure to comply with the protocol may result in costs orders against the experts (as well as their instructing parties). This is not an empty threat. In a 2004 decision, the court demonstrated its willingness to impose an order covering the parties’wasted costs where an expert’s evidence caused significant extra expense to be incurred and did so "in flagrant and reckless disregard of his duties to the court."⁴

Experts always owe a duty to exercise reasonable skill and care to those instructing them. However, when they are instructed to give or prepare evidence for civil proceedings, they have an overriding duty to the court and not to those who instruct or pay them.

1. There are certain key components of that overriding duty. Their opinions must be independent. The appropriate test laid down in the protocol is whether they would have reached the same opinion even if the other side had instructed them. This is of real concern to the courts. In his lecture to the annual conference of the ExpertWitness Institute, the Master of the Rolls (the head of civil justice) expressed concerns about the independence of expert witnesses under the current adversarial system. He believes that it is "inevitable" that experts will be swayed by the interests of those who instruct them.
2. Experts must confine their opinions to matters which are material to the dispute and which lie within their expertise. They must indicate if they are not satisfied (for whatever reason) that their opinion can be said to be final or without qualification. Experts must also inform their instructing parties promptly of any change in their opinions and the reason for it.
3. Terms of appointment must be agreed from the out set and the protocol lists the terms which should normally be included. Experts must confirm without delay whether or not they accept the instructions they have received. Once acting, experts should discuss any intention to withdraw from the case with their instructing parties. In certain instances, a request for directions from the court may be more appropriate (see below). Formal written notice must be given of withdrawal from the case.
4. The protocol also lists criteria regarding the contents of experts’ reports, including details of the statement of truth⁵ to be included. Experts must cite all works by other parties on which they have relied. A summary of conclusions (usually at the end of a report) is mandatory. The mandatory statement of the substance of all material instructions should not be incomplete or misleading."Instructions" include all materials provided by solicitors in order to gain advice. The protocol also deals with the circumstances in which experts may amend their reports. Experts must inform their instructing parties and produce amended reports as quickly as possible.
5. Experts have a duty to attend court if called upon to do so. Instructing solicitors must therefore keep experts updated on court timetables.

Along with their duties, experts have clear "rights."

Experts must be kept regularly informed by those instructing them. This includes receiving copies of all court orders and directions which may affect their reports. Obtaining clear instructions is crucial. Experts are allowed to be wrong, provided their opinion is, in the words of James Badenoch QC (Chairman of the ExpertWitnesses Institute), "honestly held and carefully expressed…Lawyers do owe a crucial duty…to ensure that the evidence of experts is well founded, fairly expressed and appropriately directed."

The protocol sets out what the instructions to experts should include. If in doubt about their instructions, experts should refuse to act pending clarification.

Experts have a right to ask the court for directions, and the court has powers to direct a party to provide required information to the expert.

Experts should be told when their reports will be/have been disclosed and they must be kept informed about the progress of the case. Instructing solicitors must tell their experts about any material changes to the information which the experts have been given.

Written questions may be put to experts by any party to the proceedings and experts are under a duty to answer questions properly put. At the same time, experts have the right to file written requests to the court for directions where they believe questions are improper or out of time.

The use of single joint experts appointed by all the parties to the proceedings is encouraged and directions about joint instructions are set out in the protocol. Single joint experts should keep all instructing parties regularly informed as they owe duties to all parties (as well as the court). They should not meet with only one party, unless that has been agreed by the other parties.

The protocol sets out arrangements for discussions between experts and experts must not be instructed to avoid reaching agreement (or to defer doing so). Instructing solicitors can attend such discussions only if all the parties have given their consent. The content of such discussions can only be referred to at trial if the parties agree. The protocol lists what the mandatory statement to be prepared after any discussion must contain. The parties are not bound by any agreement between the experts.

Finally, experts should bear in mind that contingency or conditional fees must not be offered to or accepted by them.

Expert witnesses play a crucial role in civil litigation. The new protocol hopefully provides clarity for experts by consolidating all the existing codes of practice which apply to them. In view of the potential for costs sanctions (outlined above), anyone asked to act as an expert would be well advised to review the protocol carefully.

1 The Civil Justice Council is an advisory public body set up by statute with responsibility for overseeing and coordinating the modernization of the civil justice system.

2 The protocol can be accessed via the Civil Justice Council website on: ^{www.civiljusticecouncil.gov.uk}

3 The Civil Procedure Rules were introduced in April 1999 to govern the administration of civil and commercial litigation in England and Wales. They do not apply directly to arbitrations (outside the county court system).

4 Phillips v Symes [2004]EWHC 2330 (Ch)

5 All witness statements (both factual and expert) must be verified by a statement of truth which is a statement that the witness believes the facts stated in the document are true.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.