The new ‘Guidance for the instruction of experts in civil claims 2014’[1] replaces the ‘Protocol for the Instruction of Experts to give Evidence in Civil Claims’[2].  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 a recent conference of medico-legal experts that only a handful had ever read it and that the vast majority confessed to never having done so, some 9 months 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.  The paragraphs of the old Protocol have been re-ordered, which some will find a useful aid to comprehension, and a few new issues are addressed, while some issues previously addressed in it, but also covered by the Practice Direction, have been deleted.  Whether the consequence will be that the Guidance is now read more enthusiastically and diligently 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” (para 10).

 Instructions to experts should now include details of any “specific budget for the experts’ fees” (para 20g)  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” (para 26) in accordance with CPR[3] 35.4(2) and CPR 3.15 (costs management orders).  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” (para 17d) 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 (para 17k).

Interestingly, but of little likely application, the prohibition on experts’ payments being contingent on the nature of their evidence or the outcome of a case has been watered down, in the light of ex parte Factortame (No 8)[4], to being something which is “strongly discouraged” (para 88), although this author would strongly advise against such an arrangement.  The acknowledgement in the Protocol, that an agreement to delay payment of the expert’s fees until after the conclusion of the case is permissible, has been removed – perhaps because it is now such a common provision.

Instructions

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” (para 21).  Further “where an expert identifies that the basis of his instructions differs from that of another expert, he should inform those instructing him” (para 25).

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” (para 30).  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 (para 32) 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” (para 33).

Applications for court directions

There is very limited evidence of experts themselves applying to the court for directions.  However in addressing the making of such applications, the Guidance gives an example of a situation which might call for it, “if experts consider that they have not been provided with information they require” (para 28).

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” (para 31).  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” (para 61).

Sanctions

Inevitably, in the post Jackson reforms world[5], the issue of potential court sanctions for breaches of order, rules and timetables is now extended to a 4 paragraph section of its own (paras 89 – 92).  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 (para 90) as well as the potential court sanctions, including for contempt, perjury and negligence. To aid experts, instructions should have attached relevant documents (para 20) 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” (para 20g).

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 at para 63 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”.  This should result in a clear statement of the areas of disagreement between the parties’ experts and the reasons for the disagreement, and the different resulting valuations, greatly facilitating the parties in any negotiations and the judge in identifying the real issues in the case.

Written questions

The Guidance contains similar provision in relation to written questions to experts to those in the Protocol (paras 67 – 69).  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 (Protocol para 16.3).  It maybe that this was felt to be for the lawyer and not the expert to object to.  However the expert is subject to the general obligation, referred to above, to deal with the case proportionately (para 10) and so presumably should raise any concerns about excessive time which might be involved in providing answers.

The opportunity was not taken in the Guidance to give any guidance as to the form in which the reply to questions should be given, and in particular to encourage experts to provide in one document the questions asked and the answers provided, so as to reduce the unfortunate practice of experts failing to respond to the precise question asked.

Joint discussion

The guidance on joint discussion (paras 70 to 82) is essentially unchanged.  Presumably for reasons of emphasis, the contents of PD[6] 9.1 and 9.2, are restated in the Guidance, that “discussions are not mandatory unless ordered by the court” and that the experts “are not to seek to settle the proceedings”.  The provisions under the Protocol, that the parties’ lawyers should not be present unless agreed or ordered by the court and setting out the lawyers very limited role, has been deleted, but remain at PD 9.4 and 9.5.

It should be noted that a new para 80 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.

Concurrent evidence

The new concurrent evidence provisions (aka “hot-tubbing”)  are dealt with at paragraph 83.  This 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.  Para 87 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.

Conclusion

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.  It is to be hoped that the introduction of the new Guidance will encourage all of those involved to read and inwardly digest what is undoubtedly useful guidance, and so enable them confidently to sign off on the compulsory statement at the end of every expert report that the expert is aware of the requirements within it[7].

[Who or what is medico-legal minder?  Terms and conditions apply]

[1] The Guidance came into force on 1^st December 2014 and is available through a search at http://www.judiciary.gov.uk .

[2] The Protocol was an appendix to the Practice Direction to Part 35 of the Civil Procedure Rules .  The Guidance is incorporated by reference.

[3] Civil Procedure Rules 1998

[4] [2008] QB 381 at 73

[5] The so-called ‘Jackson Reforms’ introduced to the Civil Procedure Rules from April and July 2013

[6] The Practice Direction to Part 35 of the Civil Procedure Rules 1998

[7] PD 3.2(9)(b)