Expert Witnesses Engaged by Solicitors

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

Advice refers to the work of the expert other than during court proceedings - in this context experts owe a duty to the client/solicitor - whereas if the dispute proceeds to litigation and a report is required the expert's overriding duty is to the court. In the case of advice, the expert has a duty to explain the strengths and weaknesses of the client's case; in a report for the court the expert's duty is to cover the issues in dispute relevant to his/her area of expertise and to provide for the court the range of professional/expert opinion on the key issues in an impartial way.

Acceptance of instructions
  1. Experts should ensure that they receive clear instructions from solicitors (in writing unless this is not practical).
  2. Instructions should be accepted only in matters where the expert:
    (a) has the knowledge, experience, expertise, qualifications, or professional training appropriate for the assignment;
    (b) has the resources to complete the assignment within the time scales and to the standard required.
  3. Experts should not accept instructions if they are not able to prepare a report, deal with written questions, and hold discussions with other experts within a reasonable time, having regard to the timetable of the case. A time scale for the production of the report should be agreed at the outset. Notice of delay should be given as soon as possible.
  4. Experts should make clear to solicitors what can and cannot be expected on completion of the assignment and in particular, as soon as possible after being instructed, they should identify any aspects of a commission with which they are unfamiliar, or not competent to handle, or on which they require or would like further information or guidance.
  5. If any part of the assignment is to be undertaken by parties other than the individual instructed, then: (a) prior agreement must be obtained from the instructing solicitors; (b) the names of the individuals to be engaged and details of their experience and qualifications must be given.
  6. Where a firm has been instructed, the names of the individuals to be assigned to the project and details of their experience and qualifications must be given on request.

    Terms of Business
  7. Experts should provide Terms of Business for agreement prior to the acceptance of any instructions. These should include: (a) the basis of the expert's charges i.e. the daily or hourly rates or alternatively an agreed reasonable fee for the project or services, and an estimate of the time likely to be required; treatment of traveling time; any traveling or other expenses or disbursements; the time for delivery of the report and for making payment, including any special provisions where the case is legally aided or where the fees are to be paid by a third party; (e) arrangements for dealing with questions on the report and for discussions between experts and the costs of this work; (f) rates for attendance at court and any provision for payment in the event of late notice of cancellation of a court hearing. Experts should not accept payment for services contingent upon the nature of the evidence or the outcome of the case: - to do otherwise would contravene the expert's overriding duty to the court. However, agreement to accept delayed payment of the expert's fee until the conclusion of the case is permissible as long as the amount of the fee does not depend upon the outcome.
  8. The Civil Procedure Rules give the court the power to limit the amount of an expert's fee which may be recoverable from another party; this would not affect the expert's contract with the instructing party.

    Professional conduct
  9. Experts must comply with the Code of Conduct of any professional body of which he/she is a member.

  10. The identity of the client or any information about the client acquired in t hp course of the commission shall not be disclosed by the expert except where consent has been obtained from the client or where there is a legal duty to disclose.

  11. Experts will disclose to solicitors at the start of each project any personal or financial or other significant circumstances which might influence work for the client in any way not stated or implied in the instructions, in particular:
    (a) any directorship or controlling interest in any business in competition with the client;
    (b) any financial or other interest in goods or services (including software) under dispute;
    (c) any personal relationship with any individual involved in the matter;
    (d) the existence but not the name of any other client of the expert with competing interests.
  12. Any actual or potential conflict of interest must be reported to the solicitor as soon as it is raised or becomes apparent and the assignment must be terminated.
  13. It is the duty of an expert to maintain professional objectivity and impartiality when advising a party, preparing a report for proceedings and when giving oral evidence in court.

  14. Experts should consider whether there is a need to see the client, visit a site, etc, and if so, agree the practical arrangements with the solicitor in advance.
  15. In the case of medical reports:
    (a) if the doctor has treated the patient before, ensure that the patient's consent has been obtained to the release of the information contained in the notes and that such consent is informed consent;
    (b)if the doctor has not treated the patient before, ensure that the patient's consent is obtained to the examination and to the disclosure of their records to the doctor; and, where practicable, consent of the other doctors involved in the care of the patient should be obtained before releasing information held by them.

    Preparation of the report
    A report prepared for court proceedings should be addressed to the court.:
  16. 16. The report should cover:
    (a) basic information such as names and dates;
    (b) the source of the instructions and the purpose of the report; if the report is for use in proceedings it must include a statement of the substance of the instructions, both written and oral, on the basis of which the report was written and which are material to the opinions expressed. The court has the power to order disclosure of the actual instructions to the court and to the other party but only where there are reasonable grounds for believing that the statement of the instructions in the report may be inaccurate or misleading;
    (c) the history of the matter;
    (d) the methodology used in investigation;
    (e) the documents referred to in the preparation of the report and/or any evidence upon which the report is based;
    (f) facts ascertained;
    (g) inferences drawn from the facts, with reasoning;
    (h) the expert's opinion, with any qualification or reservation. If the report is for use in proceedings and there is a range of opinion on some or all of the matters dealt with, the expert should summarise the range and give reasons for his own opinion;
    (i) the conclusions, cross-referenced to the main text;
    (j) summary of the expert's qualifications and experience;
    (k) all reports for use in court proceedings must contain a declaration that the expert understands his duty to the court and has complied with that duty and must be verified by a statement of truth as follows: " I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct" .
  17. Matters of fact and opinion should be clearly distinguished. Where there are facts in dispute the expert should not express a view unless because of his/her particular expertise he/she perceives one set of facts as being improbable, when reasons should be given. Instead the expert should express separate opinions on each set of facts in dispute. An expert should not express an opinion in a report on any matter outside the scope of his/her field of expertise. Plain English should be used and any technical terms explained, in the text or a glossary, annexed or be readily accessible to be produced when required. Experts should be aware that any documents referred to in a report disclosed in proceedings may be subject to disclosure.
  18. Experts should find out from the instructing solicitor whether there are copies of any original material prepared by the expert for the case, and upon which he relies should be annexed to the report. Copies of other reference or technical material referred to should be either documents to which reference should not be made, usually on grounds of privilege.
  19. Experts should also be aware that they may be invited by the solicitor to amend or expand a report for the purposes of completeness, clarity, readability, or to ensure factual accuracy or consistency, but not to change, withdraw or omit statements of fact or opinion which are relevant to the issues in the case.
  20. If new evidence comes to light subsequent to disclosure of the expert's report to the other party or the Court, which leads the expert to modify his opinion, the expert should promptly advise the solicitor.
  21. Experts should be aware that the Civil Procedure Rules allow parties to put written questions of clarification to experts on their reports within 28 days of receipt, to which the expert should reply within 28 days. The questions and the answers will form part of the expert's report for the trial.

    Single joint experts
  22. The Civil Procedure Rules intend that where possible matters requiring expert evidence in court should be dealt with by a single expert, rather than by two experts separately instructed by the parties. The court has the power to direct that evidence on an issue is to be given by one expert only. Where the parties cannot agree who should be that expert the court may select the expert from a list prepared by the parties or direct that the expert be selected in another way e.g. by the President of the appropriate professional body. The expert may receive joint instructions or separate instructions from each party. The parties will usually be liable "jointly and severally" for a single expert's fees, unless the parties/expert agree otherwise. When a single joint expert needs to see a client, or visit a site, the expert's conduct should be determined by the principles of fairness and transparency. If the single expert is asked to attend a conference with one party's Counsel an opportunity should be offered to the other party's solicitor to attend the same part of the conference. A single joint expert should set out in his report clearly the issues which are of particular concern to the respective parties, the questions raised by the parties and the expert's answers/opinions. If the single expert experiences any difficulties in complying with the court's wishes he may apply in writing to the court for directions without giving notice to any party.

    Discussions between experts
  23. Experts may be instructed by the court, or invited by the parties/solicitors to discuss or meet with other parties' experts, with a view to reaching agreement on the whole or aspects of the expert evidence, or narrowing the areas of disagreement. The discussion may take place face to face or, for economy of time and costs and when appropriate, by telephone. Experts should ensure that the parties/solicitors draw up a clear agenda for the meeting, preferably 7 days in advance and that the experts are given specific questions to discuss/answer. Discussions between experts should be limited to factual and/or opinion issues within the expert's expertise; legal liability is not a matter for experts to discuss or decide. The experts should, without delay and if possible at the meeting, prepare and sign a note of the main points of agreement/disagreement reached.

    Availability for court and attendance at trial
  24. An expert should be aware that when agreeing to prepare a report for court, he/she may be called to give oral evidence. The expert should take all reasonable steps to ensure he/she will be available to attend court if and when required, but should be aware that the solicitor may need to serve a witness summons in the event of real difficulty.
  25. When giving evidence at court, the role of an expert is to assist the court, and remain independent of the parties. Experts should give evidence in an objective and impartial way, and confine that evidence to matters within their competence relevant to issues in dispute.

    Complaints procedure
  26. Experts should provide a procedure for resolving complaints by solicitors.,including the following:
    (a) at the start of the assignment, the expert must give the solicitor client the name of the person to contact in the event that they are dissatisfied with the service provided;
    (b) in the event of a complaint being made, the expert should tell solicitor what the procedure will be for resolving the complaint, and give them the names and address of any professional or trade bodies of which the firm or the individuals assigned to the commission are members;
    (c) in the event of allegations relating to an expert's failure to to the above Code of Practice or any breach of their contract with the instructing solicitors, The Law Society and Sweet & Maxwell reserve the right to exclude such an expert from any future edition of the Directory of Expert Witnesses.

    References to the Directory
  27. An expert listed in the Directory may describe themselves as so listed and may use the term 'checked', but may not refer to this listing as II qualification or describe themselves as approved, accredited, or recommended by The Law Society or by Sweet & Maxwell.

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