The new Guidance for the instruction of experts in civil claims 2014 replaces the Protocol for the Instruction of Experts to give Evidence in Civil Claims.
Every expert report must contain a declaration that the expert is familiar with it and has complied with it. It was therefore alarming to find at several recent conferences of medico-legal experts that only a handful had ever read it and that the vast majority confessed to never having done so, nearly one year after it had come into force.
As the change in title suggests, in part the Guidance brings the language of the 2005 Protocol more up to date. Whether the consequence will be that the Guidance is now read more enthusiastically by instructing lawyer and expert alike than the Protocol was, we will have to wait to see. It does however remain, like the Protocol, undoubtedly a useful document for any (and every) expert instructed in civil claims, and every lawyer instructing such an expert, to have read and inwardly digested.
Proportionality and Experts’ Fees
Proportionality, inevitability, is addressed in the context of the expert’s duty to the court – and the need for “keeping the work and costs in proportion to the value and importance of the case to the parties”.
Instructions to experts should now include details of any “specific budget for the experts’ fees” and on accepting instructions “experts should be aware that they will be required to provide estimates for the court and that the court may limit the amount to be paid as part of any order for budgeted costs”. In addressing the expert’s terms of appointment, express reference is now made to the parties’ need to “provide an estimate to the court of the costs of the proposed expert evidence and for each stage of the proceedings” and to the court’s power to limit the expert’s fees or expenses, which in any event are limited in the small claims track to £750.
To increase the value of expert reports to the parties and the court, provision is now made that the instructing lawyers “should seek to agree, where practicable, the instructions for the experts, and that they receive the same factual material”. Further “where an expert identifies that the basis of his instructions differs from that of another expert, he should inform those instructing him”.
Obtaining relevant information
Experts are encouraged to be pro-active in ensuring that “they have access to all relevant information held by the parties and that the same information has been disclosed to each expert in the same discipline. Experts should seek to confirm this soon after accepting instructions, notifying instructing solicitors of any omissions”. As under the Protocol, experts are told to discuss with the person instructing them if there is information required which is not readily available to their side but also told that any request they might make for further information from the other side should be made in a letter to their own instructing lawyer and the letter should “state why the information is necessary and the significance in relation to the expert issues in the case”.
Documents referred to in expert reports
Confusion often seems to arise as to which version of witness statements and other expert reports an expert has had sight of. A new paragraph states that “if a solicitor sends an expert additional documents before the report is finalised the solicitor must tell the expert whether any witness statements or expert reports are updated versions of those previously sent and whether they have been filed and served”. And in relation to a completed expert’s report, it is sensibly provided that “before filing and serving an expert’s report solicitors must check that any witness statements and other experts’ reports relied upon by the expert are the final served versions”.
Inevitably, in the post Jackson reforms world, the issue of potential court sanctions for breaches of order, rules and timetables is now extended to a 4 paragraph section of its own. It is made clear that the risk of being debarred from relying on expert evidence in the case of a failure to comply with rules or orders is not limited any longer only to “extreme cases”. Experts, and those instructing them, are reminded of the potential for a “sanction for misconduct by their professional body/regulator” whether or not proceedings have been commenced as well as the potential court sanctions, including for contempt, perjury and negligence. To aid experts, instructions should have attached relevant documents and include, where proceedings have been started, not only the dates of any hearings (including any case management conferences and/or pre-trial reviews), but also of any costs management conferences and of “the dates fixed by the court or agreed between the parties for the exchange of experts’ reports and any other relevant deadlines to be adhered to”.
Sequential exchange of experts’ reports
Sometimes the court will order the sequential exchange (as opposed to reciprocal or mutual exchange) of experts’ reports, such as commonly occurs with quantum experts in personal injury claims but will more rarely occur in the case of clinical experts. New guidance states how in such cases the second (normally defendant’s) report should be structured, confirming whether the background as set out in the claimant’s report is agreed, failing which it should identify the areas of disagreement “setting out the necessary revisions”. “It should not repeat information that is adequately dealt with in the claimant’s expert report”. It should then go on to “focus only on those material areas of difference with the claimant’s expert’s opinion” and “should identify those assumptions of the claimant’s expert that they consider reasonable (and agree with) and those that they do not”. Finally, “the defendant’s report should contain a reconciliation between the claimant’s expert’s loss assessment and the defendant’s, identifying for each assumption any different conclusion to the claimant’s expert”.
The Guidance contains similar provision in relation to written questions to experts to those in the Protocol. While experts are instructed to discuss with their instructing lawyer if they believe questions are not properly directed to the clarification of the report or have been asked out of time, no longer are they encouraged to do so if the questions are considered disproportionate.
The guidance on joint discussion is essentially unchanged. “Discussions are not mandatory unless ordered by the court” and that the experts “are not to seek to settle the proceedings”.
It should be noted that a new paragraph requires “a brief re-statement that the experts recognise their duties (or a cross reference to the relevant statements in their respective reports)” and also “an express statement that the experts have not been instructed to avoid reaching agreement (or otherwise defer from doing so) on any matter within the experts’ competence”. This useful provision should put an end to the improper manipulation of the joint discussion process by lawyers who are trying to maintain a stronger negotiating position than their expert can realistically support.
The new concurrent evidence provisions (aka “hot-tubbing”) concludes, reassuringly for experts, that “experts need to be told in advance of the trial if the court has made an order for concurrent evidence”.
Notification of conclusion of case
A common complaint of experts (and barristers) is that they are not told if a claim has been concluded. It now provides that “when a case has been concluded either by a settlement or trial the solicitor should inform the experts they have instructed”. There is no obligation to tell the expert the outcome, or, for example, whether the expert’s evidence was useful in achieving the outcome, but this does enable an expert who is entitled to be paid only on the conclusion of the case to have some indication when to start pursuing her fees.
There will not be any great excitement amongst lawyers or experts at the introduction of the new Guidance in replacement for the Protocol, and in itself it is unlikely to result in any significant improvement in the practice when obtaining and providing expert evidence, although the new provisions in relation to joint discussions are important. However a number of provisions, if followed, will assist experts in their work and will equip them better to manage their relationship with the instructing lawyer.
Giles is a barrister specialising in personal injury, disease and clinical negligence claims. Giles is co-author of a manual for medico-legal experts and those instructing them, Writing Medico-Legal Reports in Civil Claims – an essential guide.