New protocol for the instruction of experts

On 27 June 2005 the Civil Justice Council launched a Protocol for the Instruction of Experts to give evidence in civil claims. The Protocol helpfully consolidates best practice and will be an indispensable guide to those acting as and using experts.

The recently issued Protocol for the Instruction of Experts applies to any steps taken by experts, or those who instruct them, in civil proceedings on or after 5 September 2005. It was drafted by Mr Justice Bean and His Honour Judge Nic Madge for the Civil Justice Council and is endorsed by The Master of the Rolls.

The Protocol "offers guidance to experts and to those instructing them in the interpretation of, and compliance with, Part 35 of the Civil Procedure Rules (CPR 35) and its associated Practice Direction (PD 35) and to further the objectives of the CPR in general". It is intended to give clear guidance as to what experts and those instructing them are expected to do in civil proceedings.

The form of the Protocol starts with a brief introduction as to its aim and application. It makes it clear that, while giving guidance, the existence of the Protocol does not remove the obligation on experts and those instructing them to be familiar with CPR 35 and PD 35. The Protocol then addresses the duties of experts: the overriding duty to help the court on matters within their expertise, not to act as mediators or to trespass on the role of the court in deciding the facts, to be independent (and suggests that a test of independence would be that the expert would express the same opinion if instructed by the opposing party), and so on. This section ends with a warning that, if an expert fails to comply with the CPR or any court orders, or if they cause any excessive delay, the imposition of a costs order against the party instructing the expert is only one sanction available. In addition, a court may make a costs order directly against that expert witness if by their evidence they cause, "in flagrant and reckless disregard of their duties to the Court", significant expense to be incurred. A stern warning indeed.

The Protocol then guides the reader through the process of instructing experts and giving expert evidence. A brief outline of the matters addressed is as follows:

Appointment of experts

Firstly, the Protocol underlines that instructing parties should consider whether expert evidence is needed (e.g. by asking whether the evidence relates to a matter which is in dispute) and whether a single joint expert is appropriate. A checklist details matters to be established before appointing an expert, such as appropriate expertise and experience, and practical matters, such as availability for trial. The Protocol emphasises, with examples, that terms of appointment should be agreed at the outset and stresses that conditional or contingency fees for expert evidence are prohibited. The Protocol provides that experts require clear instructions and again elaborates with examples.

The Protocol then turns to experts' rights and obligations, requiring experts to promptly confirm whether or not they accept instructions and to inform instructing parties if certain circumstances arise e.g. the work conflicts with their expert duties. The Protocol considers the instances in which an expert should consider withdrawing from a case (for instance, in the event of a conflict between their duty to the court and their instructions). It outlines that experts may ask the court for directions regarding the performance of their role and offers guidance on how to do this.

Expert reports

The Protocol gives guidance as to the contents of an expert's report and stresses the importance of professional objectivity. PD 35.2.2 sets out a list of what an expert report must contain and the Protocol addresses the majority of the items on the list and gives detailed guidance as to what is required for each item. For instance, the Protocol suggests that, where tests of a scientific or technical nature are carried out, the report must state the methodology used and give details of who carried them out. It states that experts should distinguish between questions of fact and opinion and between known and assumed facts. Where there is a range of opinion, experts are asked to explain and, where appropriate, give details of any published sources relied on. It adds that a summary of conclusions is mandatory and refers the reader to model forms of reports for further guidance.

Where experts need to amend their reports the Protocol provides that the experts cannot distort their true opinion but may amend to ensure matters such as accuracy. On the subject of written questions put to experts during the proceedings, the Protocol provides that experts are under a duty to provide answers to questions properly put and a failure to do so may lead to sanctions against the instructing party and to a potential bar on using the report.

Joint experts

The Protocol also addresses single joint experts (the norm in small and fast track claims) and states that parties should try and agree joint instructions to such experts. Guidance is provided on the conduct of the single joint expert e.g. keeping instructing parties informed of material steps they may take. A section follows on the court's power to direct discussions between experts and sets out the purpose of these discussions. The Protocol concludes by highlighting that experts have an obligation to attend court and outlines the steps to be taken by instructing parties to ensure this.

The Protocol replaces two codes produced by the Expert Witness Institute and the Academy of Experts. It is welcomed as a single point of reference for guidance and is essential reading for both those instructing experts and the experts themselves.

If you have any queries with regard to this article please contact either Emma Schaafsma on [email protected] or on 020 7367 2811, or Laura Wood on [email protected] or on 020 7367 2677.