UK: Do The Courts Still Need Experts?

Whilst the answer to this question has to be yes, expect it to be less affirmative in the future. If you appear as an expert, you will be the exception if the level of expert work you undertake has not decreased since the advent of the Civil Procedure Rules ("the CPR") in April 1999. A reason why expert evidence is less prevalent now than it was, and why it is very likely to continue to be so, can be found in a comment in Lord Woolf ’s final report on Access to Justice, in which he said:-

Little doubt then what Lord Woolf ’s views are. Another leading Judge has been heard to comment that in his view the problem with expert evidence is that it is usually neither expert nor evident or, even when it is, it is generally irrelevant.

But surely, despite these somewhat swingeing attacks, there will always be areas on which the Court requires assistance and in order to understand issues in a case, the Court will need evidence from experts in the particular field? The answer has to be yes.

The balanced view to take is not that the Courts are intent on removing experts from the litigation process, so reducing the time spent in hearing trials and their cost, but rather they are trying to restrict the expert evidence which is given in Court to that which is both properly expert and is required to decide the issues in the case. The clear message being sent is that now and in the future, if you are giving evidence either on behalf of one party to the dispute or as the Court appointed single expert, you have to be sure that the area on which you are giving evidence is within your field of expertise, and also is a topic on which you are truly expert. Equally, if retaining an expert, it is crucial that the insurer or solicitor is satisfied that the expert retained has relevant experience, preferably both in the area in dispute and in giving evidence in Court.

The days of the polished Court performer who spends more time giving "expert" evidence in Court than actually undertaking work in the area in which he claims to be expert have gone. Lord Woolf himself deprecated a system of accreditation for experts which he saw as encouraging development of the "professional expert", who would be out of touch with the current practice in their field of expertise.

The risk for the "polished" as opposed to "practical" expert was brought home to me in a recent claim against a surveyor. The Claimant’s expert, after faring somewhat badly in cross examination, was asked by the Judge how much time he spent actually valuing the sort of property on which he had purported to give expert evidence. The answer given was less than 10% of his time. The expert instructed by this firm on behalf of the Defendant when asked the same question said that he spent over 90% of his time valuing the sort of property on which he had given expert valuation evidence. The point was starkly made. In that case, expert evidence was crucial to the outcome and the choice of expert significant in defeating the claim.

Although it is vitally important that in giving expert evidence you feel entirely comfortable with the subject matter of the area on which evidence is being given, it is also equally important that you should be aware of the requirements which, as an expert, the Court now places upon you. Those of you who have already given expert evidence will be aware of the guidelines given by Mr Justice Cresswell in the Ikarian Reefer [1993] 2 Lloyds Rep 68. I will not repeat those guidelines here but they apply equally to experts giving evidence now as they did when the Rules of the Supreme Court were in force, and anyone giving expert evidence for the first time would be well advised to study them.

At the time of writing this article, there is no one definitive Code of Guidance for Experts. Although on 20 December 2001 the Master of the Rolls, Lord Phillips, published The Code of Guidance for Expert Witnesses, this only had approval from the Expert Witnesses Institute and not from the Academy of Experts. The Academy of Experts has produced its own Code which has been in use for a couple of years. Hopefully, in the near future, this unsatisfactory situation will be resolved, but in the meantime I cannot see how an expert can reasonably be criticised if he prepares a report in line with the Code of Guidance published by the Master of the Rolls in December 2001. Reference to this Code should ensure that both the form, as well as the substance, of your report is in accordance with the CPR. If you are in any doubt, raise any queries with those instructing you.

A recent decision highlights the care required both in the instruction of experts and the preparation of their reports. It is a decision of Mr Justice Hart on 15 November 2001 in Morris & Others v Bank of India. Following CPR 35.10 an expert report has to contain a statement setting out all material instructions given and documents relied upon in the preparation of the report. In this matter, the expert report produced on behalf of the Defendant was defective because it did not contain a statement of the substance of all material instructions. Accordingly, it was open to the Court to order disclosure of the instructions given to the expert. The potential problem for the Defendant was that it was not clear whether the expert had been provided with draft witness statements in order to assist in the preparation of his report but, if he had, those draft witness statements would lose their privileged nature because they formed part of his instructions, and the Claimant would be entitled to see them. Precisely what the Claimant would be entitled to see would depend upon how the expert had been instructed. What this case highlights is the need for the expert’s instructing solicitor and the expert himself to be vigilant as to the nature of the instructions given, to avoid inadvertently giving the other party access to privileged documents.

Even before the advent of the CPR, there was a feeling that the judiciary was becoming tired of what it considered to be excessive and irrelevant expert evidence. If you have been involved in the past in a significant amount of expert work, it is likely that such work in the future will be less. You might find yourself the single Court appointed expert, rather than an expert acting on behalf of one of the parties to the dispute. Whether appointed by the Court or the parties, the key is to be entirely comfortable with the subject on which you are giving evidence and to have a clear understanding of the new criteria which apply under the CPR. A failure to comply with the CPR or giving the appearance of being uncertain in the area on which you are giving evidence will risk the censure of the Court and the likelihood that you will not be instructed by the Court and/or the parties to give expert evidence in the future.

Despite all this, the sea change which the architects of the CPR and the judiciary is seeking to instil in relation to expert evidence should not be viewed with disquiet. Those with true expertise in their practice areas will continue to be sought after to assist the parties and the Court. It is those with little expertise, or the "hired gun" who would incline his view to that which one party wanted to hear, who can expect to be weeded out in the future. Many would say that they should not have been put forward to the Court as capable of giving expert evidence in the first place.