CODE OF GUIDANCE ON EXPERT EVIDENCE UNDER THE CIVIL PROCEDURE RULES 1998 (CPR)

 

Preamble

In framing this Code, the working party has taken account of the Civil Procedure Rules 1998 and the Practice Directions as they exist on 1 January 2000 and any case law on their interpretation. The Code of Guidance is designed to help those who instruct experts (and those instructed) in all cases where CPR applies. It is intended to facilitate better communication and dealings both between the expert and the instructing party and between the parties and as such is drawn in general terms so as to provide guidance for every court and every type of civil litigation.

Assistance from an expert may be needed at various stages of a dispute and for different purposes, the expert performing a different role in each of these respects. The duty to the court and the duty to act in the best interests of the party instructing the expert (including the expert's advisory role) will differ depending upon the context. When preparing a report for use in evidence at court or when giving oral evidence, however, the expert has an overriding duty to the court. The expert remains under a duty to comply with any relevant professional code of ethics. The court is likely to take into account adherence to the Code of Guidance in exercising its discretion as to costs.

PART I: EXPERTS

Advice and Report

For the purpose of this Code a distinction is drawn between: experts who
are instructed to act solely in an advisory capacity (advice); and
asked to give or prepare evidence for the purpose of court proceedings (report).

"Advice" in the context of this Code of Guidance refers exclusively to things said and done (including any draft report) by the expert with out the litigation process i.e. before Part 35 comes into play, on the grounds that the "advice" attracts legal professional privilege/litigation privilege; the "advice" would not be disclosable.

Experts who are instructed by solicitors on behalf of their client to provide advice owe a duty to the client; in the event that the matter proceeds to litigation the expert's overriding duty is to the court. If the expert becomes a Part 35 expert, to the extent that the expert continues to act also in an advisory capacity, the overriding duty to the court renders any relevant "advice" including that given pre litigation disclosable.

Appointment

Those intending to appoint experts ought to consider whether the appointment is appropriate, taking account of the principles set out in Parts 1 and 35 of CPR, for which the following factors ought to be considered:

Terms of appointment

Terms of appointment should be agreed at the outset and should include:

Payment

Payments contingent upon the nature of the expert evidence given in legal proceedings, or upon the outcome of a case, must not be offered or accepted. To do otherwise would contravene the expert's overriding duty to the court and would contravene the Law Society's "Guide to the Professional Conduct of Solicitors."

Deferment of payment

Agreement to delay payment of an expert's fee until after the conclusion of the case is permissible as long as the amount of the fee does not depend on the outcome of the case.

Instructions

Experts should be kept informed regularly about any deadlines for the preparation of their advice or reports, and about any timetable for proceedings or any changes there to.

Those instructing experts should ensure that they give clear instructions, including the following:

Experts who do not receive clear instructions should request clarification and indicate that they are not prepared to act unless and until such clear instructions are received.

Those instructing experts should consider whether their expertise is relevant to the issue on which their opinion is sought.

Experts must neither express an opinion outside the scope of their field of expertise, nor accept any instructions to do so.

Experts' duties

It is the duty of experts:

Before disclosure of any report, the expert should be given the opportunity to review, and if necessary, revise the contents of the report.

Content of report

In providing a report experts:

Information

All experts' advice and reports should contain the following information, except that subparagraphs 7 - 9 inclusive apply only to reports:

  1. academic and professional qualifications;
  2. a statement of the source of instructions and the purpose of the advice or report;
  3. a chronology of the relevant events;
  4. a statement of the methodology used, in particular what laboratory or other tests (if any) were employed, by whom and under whose supervision;
  5. details of the documents or any other evidence upon which any aspects of the advice or report is based;
  6. a summary of conclusions reached;
    and in the case of experts' reports only:
  7. a statement setting out the substance of all instructions (whether written or oral). The statement should summarise the facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;
  8. a declaration that the report has been prepared in accordance with this Code; and
  9. a statement of truth, as required by Part 35, Practice Direction 1.4.

Fact and opinion

In addressing questions of fact and opinion in any advice or report experts should keep the two separate and discrete.

Factual evidence

Where there are facts in dispute, experts:

Procedure

Following completion of the report, experts should be:

Questions for experts

A party may put questions to another party's expert about that expert's report:

Conferences and discussions

The parties and their lawyers should seek to reach agreement about, and consider taking steps to clarify the issues by way of:

The parties, their lawyers and experts should cooperate to produce concise agendas for any discussion between experts, which should, so far as possible:

The discussion may take place face to face or by any other appropriate means proportionate to the circumstances of the case and the Court track. Lawyers for the parties will not usually be present at such discussions unless the experts so request.

If there has been a discussion, a statement of the areas of agreement and disagreement should be prepared and agreed promptly between the experts, usually before the discussion is concluded. This statement may have to be produced to the court, but shall not be binding on the parties.

Those instructing experts must not give, and experts must not accept instructions not to reach agreement at such discussions on areas within the competence of experts.

Attendance at trial

The use of available audio-visual facilities should be relied upon to avoid unnecessary attendance at court.

Those instructing experts should inform them whether attendance at trial will be required, and if so inform them of the date and venue fixed for hearing of the case. In applying to fix dates for the trial, those instructing experts should, as far as possible, take account of the convenience of experts.

Experts must take all steps to ensure availability to attend court, if and when required, but should be alerted to the fact that a solicitor may need to serve a witness summons in the event of difficulties.

PART II: SINGLE JOINT EXPERT

Where parties have agreed to, or the court directs the joint instruction of a single joint expert:

Fairness and transparency

Parties and single joint expert's should observe the following:

The single joint expert:

PART III: ASSESSORS

Preamble

The following guidance is subject to section 70(1) of the Supreme Court Act 1981 and section 63 of the County Courts Act 1984 respectively, and Article 6(1) of the European Convention on Human Rights, as it appears in schedule 1 to the Human Rights Act 1998.

Appointment

A party may at the outset of the proceedings, if it thinks it would be useful for the court to do so, apply to the court for the appointment of a person of skill and experience to provide an expert opinion on any matter to which the proceedings relate, either in lieu of the parties' experts or in addition to the parties' experts.

Where the parties' experts engage in discussions pursuant to Rule 35.12 or paragraphs 21 (b) and 22 above, the parties may request the court to appoint an assessor to preside over the discussions.

In requesting the court to appoint an assessor(s) the requesting party should indicate:

Any party requesting the court to appoint an assessor(s), for the purpose of assisting the court to decide any matter which involves expert opinion, shall notify other parties in writing of such request. Other parties so notified may submit to the court within 14 days their views on the proposed appointment.

Role and function of the assessor

Parties may question the assessor(s) in like fashion to CPR Part 35.6; the assessor(s) to file answers with the court and the parties within 28 days.

Where there remains a conflict of expert opinion between the assessor(s) and any party's experts, any party may apply to the court for permission to call experts to give oral evidence.

 

 

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