Experts: The Rules, Recent Developments And Good Practices

Author:Miss Lisa Kingston
Profession:Fenwick Elliott LLP

This 39th issue of Insight (i) reviews the rules by which experts should abide in relation to the preparation of their reports and the giving of their evidence; (ii) considers recent developments in light of the Jackson Reforms; and (iii) provides practical pointers on how to make expert evidence effective.

Experts have been making the headlines a lot over the past 18 months. They have been criticised for being biased, lacking relevant experience (due to working more as experts than in their true professional calling), giving no coherent thought to the issues in the case, seeking to defend the indefensible, being argumentative and unrealistic, and advancing arguments which are based on theoretically possible causes, as opposed to agreed facts. This recent flurry of judicial criticism is of great concern, since in the construction industry in particular, disputes are usually very technical and expert evidence will often hold sway in determining the outcome of the case.

So how can you make expert evidence effective? Expert evidence can only be effective if experts are believable. Experts can only be believable if they abide by the various rules that govern them, and if they are perceived to be independent and accurate by the court. Failing this, their evidence is likely to be deemed to be unreliable, which may lead (either directly or indirectly) to an unsuccessful outcome.

The rules

The role of the expert witness

Essentially, the role of the expert witness is to help the court or tribunal understand complex technical issues in his chosen field, and to act independently when doing so. The role of the expert witness and his duties are dealt with in detail at Part 35 ("Experts and Assessors") of the Civil Procedure Rules ("CPR") and in the Practice Direction that supplements Part 35.

CPR 35.2(1) provides that an expert is:

"a person who has been instructed to give or prepare expert evidence for the purpose of proceedings". Section 13.1.1 of the Technology and Construction Court Guide describes expert evidence as:

"matters of a technical or scientific nature and will generally include the opinions of the expert". Experts' duties

Experts' duties are set out in CPR 35 and Practice Direction 35.

Rule 35.3 of the Civil Procedure Rules emphasises that the expert's primary duty is to help the court. This duty overrides any obligation the expert may have (or may perceive to have) to those instructing him, and experts therefore must not serve the exclusive interest of those who retain them. CPR 35.3 provides:

"(1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid." Under CPR 35.10(2), experts must include a statement at the end of their report confirming that they understand and have complied with the duty under CPR 35.3. CPR 35.3 is supported by Practice Direction 35 — Experts and Assessors, which states:

"2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 2.2 Experts should assist the court by providing...

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