Expert Library

One-Stop Shop for experts who want to stay informed

Factsheets

Unique to the UK Register of Expert Witnesses is our range of member factsheets (currently 70 available). They focus on important topics, including expert evidence, terms and conditions, getting paid and fees.

Your Witness

Published quarterly and distributed free to all member experts, Your Witness is the newsletter of the UK Register of Expert Witnesses.

Little Books

Lots of practical guidance for busy expert witnesses distilled from the experience of three decades of working within the field. Each book has been written as a handy reference to the practical aspects of expert witness work.

Court Reports

Analysis and explanation for member experts on key court cases, plus full access to the ICLR's (Incorporated Council of Law Reporting for England and Wales) case law search service for Professional experts.

Guidance for Experts

The Official CJC Experts’ Protocol providing guidance to experts, and those who instruct them, in civil cases in England and Wales.

Year Book

Our handy reference guide for busy expert witnesses published annually and free to all members. Includes all the current rules of court, practice directions and other legal guidance for all the courts.

External Reports & Rules

Ready access to important reports and court rules (including the civil, criminal and family courts) from official sources such as the Ministry of Justice and the Legal Aid Agency.

Articles

Links to published New Law Journal articles written by Chris Pamplin, J S Publications, on a range of expert witness issues.

Terminator

Online application (and Factsheet) to help member experts create personalised sets of terms of engagement based on the terms of engagement framework of the UK Register of Expert Witnesses.

Factsheetsin-depth analysis for busy expert witnesses

All Factsheets


Your Witnessquarterly newsletter of the UK Register of Expert Witnesses

Your Witness in 2018

    Issue 94   December:
    • We look at the potential use of the no property in a witness doctrine to allow parties who don’t instruct an expert witness to treat them as witnesses of fact, and in the process risk breaking that other key doctrine, equality of arms.
    • The procedure for a court to issue summary justice is well established. A recent case saw it used before the experts had even reported! The Court of Appeal did not approve.
    • The government’s push towards ‘digital courts’ risk access to justice. Here’s why.
    • Litigants in Person (LiPs) continue to cause problems in the courts. We think the time is coming when the government will need to invest to mitigate the worst aspects of the rapid growth in LiPs.
    • Who needs experts when you’ve got access to Wikipedia? The court, apparently! The Court of Appeal made some surprising comments about the use of Wikipedia in an appeal from the Immigration Tribunal.
    • Finally, there’s an update on the passage of the Civil Liability Bill and we ask for your help in identifying lawyers who may benefit from receiving a free copy of next edition of the printed Register.
    Issue 93   September:
    • Regrettable politicisation of the justice system - the cost-driven assault on the justice system continues
    • Experts on the carpet - fair process suggested before the court can criticise an expert
    • New guidance published for paediatric experts witnesses
    • Whiplash claims – role of expert witnesses in combating fraud
    • Revision to Criminal Procedure Rules for expert reports
    Issue 92   June:
    • GDPR Thoughts: Data Audits, Privacy Notices and Controller or Processor
    • Complex disclosure requirements in cases that involve massive amounts of electronic documents are an opportunity for expert witnesses
    • Does an expert witness's breach of duty in a criminal case render the conviction unsafe?
    • Beware of receiving unsolicited information about a case you have no dealings with - someone might be engaging in a dirty tricks campaign!
    • GDPR - the vital exemption all experts should know
    • GDPR - Legitimate interest may be a better legal basis than consent
    • GDPR - What happens to the Data Protection Act now GDPR is in force?
    Issue 91   March:
    • GDPR brief
    • When litigation involves sensitive commercial information, trade secrets or valuable scientific research, it poses particular problems with expert confidentiality
    • Dressing up fact as opinion can backfire
    • Are experts distinct from ‘the team’ when cost orders are involved?
    • There is a heavy burden on a party looking to change expert late in the day which, save in exceptional circumstances, will be difficult to discharge

Your Witness in 2017

    Issue 90   December: The recently introduced Pre-Action Protocol for Debt Claims appears to set up a Prevaricator’s Charter that makes securing overdue payment potentially more long winded. What can you do to minimise its impact on your cashflow? We also consider the coming into force in May 2018 of the new General Data Protection Regulation. While most experts are only minor data processors, many deal with very sensitive data so they will not be immune. How do you need to proceed? We end with the somewhat odd notion of the anonymous expert witness. What are the circumstances under which ‘the secret expert’ can exist? Also inside, we regret the Beeching-like dismantling of the legal aid system, one of the key reasons that debt claims now need their own Protocol, and we consider how best to deal with criticism in earlier proceedings of an expert’s work. Often very unfair, is there anything an expert can do to minimise the impact on credibility?
    Issue 89   September: In this issue we take a look at whether the report of an expert who is no longer able to act for a party has to be disclosed as a necessary condition of the party being able to appoint a new expert. It has become increasingly viewed as a requirement to be imposed by the court, but is that true? We also publish the results of our latest expert witness survey. If you are keen to know how others view the expert witness scene, including summary statistics on charging rates, this is the article for you. We ask can evidence an expert has studied in one case be reused if the expert is subsequently instructed in another action flowing from the same incident? What if the new instructing solicitor does not even know of existence of the evidence? We unpick the distinction between expert evidence that is opinion and that which is factual. The distinction may, at first glance, appear to be fairly academic, but there are some quite important consequences that flow from these different elements of the expert’s evidence. If forced to sue for your fee, we urge you to be careful who you sue - if you get the name wrong you could be on a sticky wicket. And finally we offer some words of caution to experts who undertake pro bono work for lawyers. Such commendable social justice instincts can backfire!
    Issue 88   June: Brexit remains a hot topic as Article 50 is finally triggered and the UK wheels like a slow dreadnought at the Battle of Jutland to face what is fast becoming the Grand Fleet of a belligerent European antagonist. While that manoeuvring takes place, we use the opportunity to look at what will be involved in disentangling the Gordian Knot that is EU law in the UK. Confidentiality relating to proceedings held in open court is seldom contentious because all documentation and judgments will generally be in the public domain. The same is not true of arbitration. With an increasing number of experts acting in such cases, it is worth reviewing the current position regarding confidentiality rights and obligations in arbitration. An over-eager judge stars in our case report from the Court of Appeal. The judge got so involved that he began to answer the questions that had been put to the expert by counsel in cross-examination! The question asked is: Did this have an impact on the safety of his final judgement? The justice system is keen to get us all in the hot-tub together - whether we want to or not! Our article looks at the benefits of hot-tubbing and what is holding things up. And finally, we ponder the proper response should you end up being approached by both sides in a case.
    Issue 87   March: Expert witnesses are busy people and have to juggle their available time as best they can. The courts, too, with increasingly overstretched resources, must endeavour to manage court time as efficiently as possible. But, what would you do if you found yourself warned for a whole 3 months! We consider the issue of trial windows, trial dates and how the witness summons can become a very blunt tool. Also inside this issue we report on an interesting side issue that arose in the Dr Squier case about whether disciplinary tribunals can refer to earlier trials in which the expert was criticised by the judge. Being instructed in a case when you have a connection with one of the parties needs to be handled with great care and openness. We discuss a recent case in which the expert fell down badly in this respect and stress the importance of early action to highlight any connection. It is a common enough experience for experts in the witness box to find the barrister ‘playing the man’ when they realise they have no way to undermine the evidence itself. It is, therefore, refreshing to hear that one judge, at least, has had more than enough of it.

Your Witness in 2016

    Issue 86   December: Publicly confronting dogma is a risky business that can have long-lasting consequences. The situation of Dr Squier is a case in point, an expert who challenged professional dogma on ‘shaken baby syndrome’ and has spent the past year or two defending herself in professional disciplinary proceedings. Apart from the revealing light her case casts on the GMC’s (in)ability to conduct its business effectively, it holds important lessons for any expert who believes professional conventional wisdom needs to be confronted. Also inside this issue we look at how you can deal with appeals from your instructing lawyer to change your report. While some such requests are perfectly valid, others are most certainly not. A growing market for medical experts is requests from employers for a medical report on an employee (or potential employee), we look at what issues this raises for the expert. A recent decision of Birmingham County Court has suggested that in some circumstances the court can order the disclosure of items such as draft documents, and even a solicitor’s attendance note of conversations with experts! If this principle is correct, it will ring alarm bells for experts and lawyers alike. Finally we responsed to a couple of helpline questions on instructions that suddenly involve a litigant in person, and on dealing with requests to defer billing for extended periods.
    Issue 85   September: In this issue we look at what awaits the expert witness in Brexit Britain. It’s early days, but the likelihood is that after the huge task of extraction is completed not much will have changed! We examine a case in which the medical expert got his role comprehensively wrong, and subsequently suffered at the hands of the GMC. Despite the furore caused by the publication in 2012 of a report by psychologist Jane Ireland, Evaluating Expert Witness Psychological Reports: Exploring Quality, the matter has come full circle. We recap events from 2012 before looking at recent developments at the Health and Care Professions Council as it exonerates Professor Ireland at a hearing in the summer. From time to time we become aware of articles written by expert members of the UK Register of Expert Witnesses. In this issue, we carry such a piece penned by retail fraud expert Richard Emery, in which he considers some of the problems in the way public funding is being used in the criminal courts. We round up with a quick look at some topical news.
    Issue 84   June: In this issue we look at a new complication for experts who undertake work for litigants in person – consumer law! Are you ready for on- and off-premises contracts and cancellation rights? We set out everything you need to know. We also investigate an interesting issue that arose when the police came knocking on an expert's door asking for a copy of a civil court report he had written because the CPS wanted to use it in criminal proceedings. And you may have heard about vulnerable witnesses who give evidence from behind a screen, but can an expert witness remain anonymous in proceedings? We find out. We also take a quick look at a case in which the expert got his role comprehensively wrong, and round up with a bit of topical news.
    Issue 83   March: In the last issue of Your Witness we reported on a High Court decision that gave guidance on the nature of admissible expert evidence. We now investigate a February 2016 Supreme Court judgment that has cast further light on the topic, particularly when the expert evidence to be adduced is of arguably questionable probative value or usurps the function of the court by giving an opinion on a point the court itself should determine. Next, we consider some current EU regulations that apply specifically to expert witnesses - particularly topical given the upcoming referendum. We continue by looking at two recently launched court schemes which are seeking to lessen the time and expense of trials. The emphasis on shortened and truncated procedures is likely to have a far-reaching impact on expert evidence... if, that is, these schemes work as the court intends. Finally, following a spate of Helpline enquiries on the topic, we summarise the court guidance for experts considering withdrawing from civil instructions.

Your Witness in 2015

    Issue 82   December: The relentless erosion of legal aid in England and Wales over the last two decades has resulted in a significant growth in alternative methods of funding for parties to litigation. The range of funding options on offer can be somewhat bewildering – not only for litigants, but for lawyers and other professionals too. Following a number of related queries from experts to our Register Helpline, in this issue we offer you a brief guide to what’s on offer. The exercise of the court’s wide powers to control the number of expert witnesses instructed in a case often gives rise to procedural challenges. Here we consider a recent Court of Appeal judgment when it heard a case against a refusal to permit expert evidence. We also review the compellability of expert witnesses. In theory, the law makes no distinction between witnesses of fact and expert witnesses, but in practice the courts exercise discretion in deciding whether an expert witness should be compelled to appear. And we revisit the question of experts keeping papers from old cases – what should you keep and for how long? And finally, how can a judge be compared with Goldilocks from the tale of the three bears? We strangle this particular simile to draw out the lessons from some recent judicial guidance on what constitutes a good expert report.
    Issue 81   September: In this issue we report briefly on the Government’s reaction to the latest piece of shenanigans from the medical reporting organisations, and alert you to an imminent consultation on proposals from the Department of Health that would see fixed expert fees in many clinical negligence claims. We also publish the results of our latest expert witness survey. If you are keen to know how others view the expert witness scene, including summary statistics on charging rates, this is the article for you. And we amplify on our short piece in the last issue on weasel words from instructing lawyers. Is a judge bound to accept expert opinion that has not been challenged during the proceedings? This very question was addressed recently by Mr Justice Foskett who found himself in no bind whatsoever! We finish with a report of the Court of Appeal explaining to the Legal Aid Agency that it is not within the Agency’s power to override the will of the Court when it comes to paying for expert evidence.
    Issue 80   June: In this issue we take a quick look at a problem that can occasionally arise with joint statements, before moving on to explain the latest government attempt to correct the litigation 'marketplace' in the high-volume, low-value road traffic accident personal injury sector – MedCo. This new system is supposed to prevent lawyers making money out of medico-legal reporting, but we conclude that it has a low chance of success. In an adversarial justice system, it can be argued that natural justice demands that each party should have a fair and equal opportunity to test the witness evidence. We ask how far this requirement should be allowed to override more practical concerns of the courts. We also conclude our two-part series looking at the role mathematical errors have played in court. Look out for the ‘Earth girdle’ – it demonstrates just how unhelpful our human intuition can be! And even though there’s an increasing focus on costs control by the courts, we report on a case in which fairness was allowed to trump parsimony. Our Helpline has inspired our final article which considers what an expert should do if an enquiry to instruct arrives from a party that has previously been on the other side of a case.
    Issue 79   March: In this issue we consider the question of just how easy it is to demarcate an expert’s area of expertise. With all the sanctions being piled on experts who step outside their area of expertise it is clear lawmakers think this an easy task. Is that true? We also have the first of a two-part series looking at the role mathematical errors have played in court. Despite the ubiquity of the various errors, most are easy to spot. Expert assessors are not that common, but the case of Cary provides useful insight into the role, and in particular on the assessor selection process. We round off with a quick look at medical expert revalidation, news of a valuable addition to the UK Register of Expert Witnesses Professional Indemnity Insurance scheme and a little guidance from the ‘debt recovery coal face’ about one set of weasel words lawyers love to offer experts!

Your Witness in 2014

    Issue 78   Dec: In this issue we work through the new Civil Justice Council guidance for experts, drawing out the key points for experts. We offer a refresher on the guidance that has not changed as well as an introduction to the areas that have. We also comment on the new Criminal Procedure Rules Part 33 practice direction that implements some of the Law Commission’s work on the admissibility of expert evidence in criminal cases. And we round off with some guidance on ‘scoping reports’ and an update on recent changes to the Civil Procedure Rules.
    Issue 77   Sept: In this issue we look at the latest efforts at the Ministry of Justice (MoJ) to grapple with personal injury claims that arise from road traffic accidents (so-called “whiplash” cases). This is the area of expert work that has been labelled the “sausage machine” because it commoditises the litigation process in this high-volume, low-value sector. Such commoditisation has been growing for more than a decade and gave rise to the medical reporting organisations (MROs). It appears, though, that the MoJ has finally decided that the MROs have had their day. In other developments, we take another look at the difficulties that can arise in selecting the right expert witness to instruct and, through a fond retrospective on the recently retired Lord Justice Ward, consider some of the dangers inherent in the large growth in the number of cases being conducted by litigants in person. We also offer some advice on how to guard against correspondence that is lost in the post, and ask for your feedback on the “hot tub” in civil litigation in England and Wales.
    Issue 76   June: In this issue we look back at the first year under the Jackson Reforms, and it hasn't been a happy year. We conclude by wondering if Jackson LJ will come to carry for the legal system the mantle Dr Beeching does for our rail system! The prohibition on expert witnesses giving an opinion on "the ultimate issue" is something that has been eroded over time. We look at what the antics of footballers can tell us about the current state of play. As a topic ever dear to many an expert witness heart, we get some advice from a debt expert who has spent a couple of years chasing lawyers for experts who are owed money. Finally, we take a very brief look at why it is so important for experts, and others, to understand the difference between the role of the expert advisor and that of the expert witness, and we reprise the Rules relating to answering questions under the Civil Procedure Rules.
    Issue 75   March: In this issue we follow up on the 2011 Law Commission report on the Admissibility of Expert Evidence in Criminal Cases. The Government has finally published its response and you can see the Age of Austerity written all over it! We also look at some of the expert witness issues that can arise in litigation that crosses EU member state borders. The determination of the judiciary to impose its collective will on cost reforms was emphatically marked with the Court of Appeal decision in the ‘Plebgate’ litigation. We look at that case and also reflect on the sanctions that are now in place when an expert report is delayed. Finally, we take a very brief look at some helpful guidance from the Forensic Science Regulator.

Your Witness in 2013

    Issue 74   December: In this issue we look at some new national standards for expert witnesses working in children cases and wonder if people are focusing on the wrong problem. We consider possible conflicts of interest that can arise when expert witnesses know the lawyer or the judge. We report on the use of expert opinion evidence from published sources, consider the implications of an expert witness who wishes to retire whilst a case is still wending its way through the court system and offer some thoughts from an experienced lawyer on how to avoid the bear traps when giving evidence.
    Issue 73   September: In this issue we conclude our two-part series on the role of the expert witness in Scotland by looking at terms of engagement. The adversarial system used in Scottish courts is not dissimilar to that employed in the courts of England and Wales, but there are differences about which an expert should be aware. We also report on our tenth expert witness survey. If you are keen to know how others view the expert witness scene, including summary statistics on charging rates, this is the article for you. We also look at a couple of issues around paying for expert reports that flow from the changed approach to public funding of cases.
    Issue 72   June: In this issue we start a two-part series on the role of the expert witness in Scotland. The adversarial system used in Scottish courts is not dissimilar to that employed in the courts of England and Wales but there are differences that an expert should know about. We also look at access to expert reports by parties who are not party to the litigation for which the report was prepared. Finally, we report on the latest moves by the Ministry of Justice to cut the amount it spends on expert witnesses.
    Issue 71   March: In this issue we take a long hard look at litigants in person. With the major legal aid cuts in April 2013 will come a big increase in the number of litigants who will try and run cases themselves. The prospects for expert witnesses instructed by such litigants is not promising! We also look at a key effect of the Jackson Reforms for expert witnesses in the form of cost budgets. We round off with a couple of articles on expert determination. The first looks at when it is proper for the expert to determine his or her own jurisdiction and the second shows this theory in practice. If you are thinking of expanding your expert repertoire to include expert determination, these articles are for you.

Your Witness in 2012

    Issue 70   December: In this issue we look at how the seemingly obvious requirement to select experts with the necessary skills, qualifications and experience can sometimes cause difficulties, particularly when it comes to deciding what weight to apply to the evidence adduced. We consider whether it always takes expert evidence to prove professional negligence and reprise the topic of whether an expert has to answer the questions put by another party. The difficulties created when a party wants to switch expert part way through a case are considered and we muse on whether Wales will soon create its own jurisdiction. Finally, the need to agree instructions at the outset is highlighted and we report on a legal attack upon a parsimonious decision on funding a family court report by the LSC.
    Issue 69   September: This issue is turned over almost entirely to the recently published revision of the Civil Justice Council’s Guidance for the instruction of experts to give evidence in civil claims. This document began life in 2005 when the Civil Justice Council took the initiative to establish a single, authoritative set of guidance for expert witnesses working under the Civil Procedure Rules (CPR) in England and Wales. This is the first major revision since 2005. Exactly when this new text will replace that currently appended to CPR 35 is not yet clear, so this is an early opportunity to get to grips with what is very likely to come into force in the coming months. We also look briefly at who pays for an expert witness answering questions put under CPR35.6 and what the Solicitors Regulation Authority has to say on what solicitors should tell clients about expert witness fees.
    Issue 68   June: This issue is turned over almost entirely to an expert witness’s terms of engagement. The recent changes wrought by Jones -v- Kaney together with moves on fees at the Ministry of Justice and Legal Services Commission, have made the need for an expert witness to have in place a proper contract more important than ever. A good set of terms won’t stop problems arising, but it will make clear what each party expects of the other and the contractual obligations. As a result, dealing with any problems that do arise will be much easier. We also summarise the Ministry of Justice litigation reforms.
    Issue 67   March: In this issue we look at the Family Justice Review final report and wonder if it is more about cutting costs than improving access to justice for some of the most vulnerable in society. We also report on some early results from the trial of concurrent expert evidence (or hot-tubbing as it is known). The difficulties that can arise when experts have prior knowledge about a piece of litigation or the parties are also considered. We also look at the National Taxing Team which deals with discretionary costs in criminal courts, introduce a new handbook from the Solicitors Regulation Authority, have a smile at the expense of psychologists and explain how expert witnesses in the UK Register of Expert Witnesses can get Your Witness on Kindle.

Your Witness in 2011

    Issue 66   December: In this issue we look at the ability others have to reuse expert witness reports from unrelated proceedings and report on two cases which have seen the Jones -v- Kaney judgment play an important role, in one case it meant a proper defence had to be raised by an expert witness and in another the fact the expert witness could now be sued was critical in the Court of Appeal rejecting an application. We also consider the admissibility of expert evidence that was prepared for someone who is no longer a party to a court case and take a first look at the recently published Family Justice Review as it relates to expert witness and at some Woolf-like reforms taking place in Scotland.
    Issue 65   September: In this issue we launch, in response to Jones -v- Kaney, the UK Register of Expert Witnesses Professional Indemnity Insurance Scheme, designed to offer expert witnesses top-quality cover at market-beating prices. We reveal the outcome of our ninth bi-annual expert witness survey and we consider a case that deals with whether prior knowledge of one of the parties, or some other aspect of the case, compromises an expert witness’s claim to independence. We look at the impact that discrediting an expert witness should have on past cases and we underline the important distinction between expert advisors and expert witnesses when a party decides to ditch one expert witness and seek the opinion of another. Finally, we report on a family court case that has an important message for all expert witnesses about what can and cannot be kept confidential.
    Issue 64   June: In this issue we take a long hard look at the Supreme Court decision in Jones v Kaney and consider some of its consequences, the decision-making process itself and some import considerations for expert witnesses under the new liability regime. We summarise the three different Statements of Truth that you need to use on reports for civil, family and criminal courts and introduce the new Family Procedure Rules Practice Direction 25A dealing with experts, which contains some helpful ammunition for experts trying to get their instructing lawyers in line. Finally, we preview a bespoke insurance scheme for experts in the UK Register of Expert Witnesses, announce a new LittleBook on marketing and enclose the latest survey form in our biannual series of surveys of the expert witness world.
    Issue 63   March: In this issue we welcome the arrival, after a decade-long gestation, of the Family Procedure Rules which come into force on 6 April 2011. They provide a single set of rules for family proceedings in high courts, county courts and magistrates’ courts in the style of the Civil Procedure Rules and contain little to surprise experts. We review a case in which the controversial Low Copy Number DNA technique – in which tiny amounts of DNA are processed – is declared sufficiently established to be admissible in court. We consider what to do if those who instruct you are trying to hide your report from the court, comment on guidance from the Crown Prosecution Service on ‘shaken baby’ cases and on the use of ‘likelihood ratios’ based on dodgy databases, and clear up some confusion over whether a recent tax tribunal case means experts no longer need to charge VAT on their reports.

Your Witness in 2010

    Issue 62   December: In this issue we look at the ‘ultimate issue’ rule – To what extent can expert witnesses give opinions on the facts the court has to determine? – and conclude it is virtually dead. We review a case in which the Court of Appeal looked at the way an expert at the Forensic Science Service (FSS) used a Bayesian approach ‘behind the scenes’ in coming to an opinion on how likely it was that a footmark came from the defendant’s shoe. The Court of Appeal ruled that such an approach was unsupportable, that the FSS was dabbling in pseudoscience and that the Forensic Science Regulator was wrong to promote the use of the approach across the board. We report on some recent guidance on the use of expert evidence from the Technology and Construction Court (often a trail-blazer on developments in procedure), and summarise the latest consultation from the Ministry of Justice on expert fees.
    Issue 61   September: In this issue we look at some Court of Appeal guidance on how juries should choose between experts who disagree in their opinions (and wonder just how its effectiveness can be tested when we don't know, and can't research, how juries make their decisions). We take a look at expert determination, a form of ADR that is growing in popularity. We review a case in which expert evidence on custom and practice in an industry played an important role, and we anticipate some of the arguments likely to play out at the Supreme Court when expert immunity comes under the spotlight in early January 2011.
    Issue 60   June: In this issue we look at the next stage in the Ministry of Justice attempt to get to grips with the cost of expert evidence paid out of public funds. We take a detailed look at the 'hot tub' system, developed in Australia, that Jackson LJ has recommended be tested over here. We consider the future for MROs given their last-minute reprise by Jackson LJ in his Review of Civil Litigation Costs, and we ask whether jurors are able to comprehend the technical expert evidence put before them.
    Issue 59   March: In this issue we look at a proposal to integrate experts more tightly into the Family Court process, review a recent case that deals with how an expert can express the strength of his opinion and report on a recent appeal involving the Low Copy Number DNA procedure in which once again the technique received the official seal of approval. We also summarise the developments in expert witness immunity as a new attempt to remove this important protection (important for litigants, not experts, that is) sees the matter heading to the Supreme Court and ask whether there is anything an expert can do to overturn the decision of a Determining Officer.

Your Witness in 2009

    Issue 58   December: In this issue we report back on the latest in our series of bi-annual expert witness surveys. We consider the proposals made by the Ministry of Justice to cap expert witness fees, and summarise our response to the MoJ, which predicts a serious impact on the supply of experts willing to undertake forensic work if the proposals are implemented without radical modification. We also report on three cases dealing with the introduction of fresh expert evidence in criminal appeals, and ask for your help in gathering information on the activities of professional regulators and on the judicial criticism of expert witnesses.
    Issue 57   September: In this issue we wrap up our coverage of the Law Commission consultation on pre-trial testing of expert evidence, we look at the history of and recent developments in clinical negligence case law (and find a relaxation in the burden of proof) and we take a first look at the MoJ's latest attempt to control expert fees. We also preview some rationalisation of the Criminal Procedure Rules, consider literature citation in expert reports and launch the latest in our series of bi-annual expert witness surveys.
    Issue 56   June: In this issue we look at new BMA guidance on terms of engagement for doctors, a jury foreman who has got himself into a spot of bother and a prosecution expert witness who appears to have missed the vital guidance contained in the CPS Disclosure Manual. However, we spend most of our time on the Law Commission consultation on its plan to introduce a pre-trial assessment of expert evidence in criminal trials, the problems it identifies, its proposals for change and our analysis of the likely efficacy of these proposals by reference to some key criminal test cases. Finally, we focus on data protection and the expert witness, and we muse on the thought that most readers of Your Witness are likely to be breaking the law!
    Issue 55   March: In this issue we take a look at the Forensic Science Regulator's consultation on the accreditation of forensic science practitioners, and include information about how to contribute. We also consider running an efficient business and how it could help you weather the economic turmoil and round off with a court report offering the Court of Appeal's thoughts on leading-edge science in the courtroom.

Your Witness in 2008

    Issue 54   December: In this issue we take a look at expert witness work and recessions - it isn't all bad news! We also look at debt recovery in Scotland with the aid of the Law Society of Scotland, deferred payment and its effect on income tax and some more attempts by the LSC to cut the amount it pays to experts. Finally, we have a clutch of court reports considering ear print evidence, how an expert dealt with a court ruling him 'inexpert' and the use of shadow experts in the Family Court.
    Issue 53   September: In this issue we take a look at the new GMC guidance for doctors undertaking expert witness work, how the way courts deal with potential bias in an expert witness has evolved in recent times and debt recovery in Scotland. We also look at what to do if a court makes a determination that you aren't an expert and review a clutch of court reports considering the relevance of expert opinion, challenging bias and waiver of privilege.
    Issue 52   June: In this issue we take a look at the admissibility of novel scientific evidence in criminal cases, the new Family Court Practice Direction for experts, some further developments in the Low Copy Number DNA profiling technique and the results of the review ordered by the Forensic Science Regulator.
    Issue 51   March: In this issue we take a look at some further guidance on how long experts should retain documents, what an expert can do when a lawyer goes bust, the Low Copy Number DNA profiling technique, and the trouble it finds itself in, and three court reports dealing with expert fees in the Lands Tribunals, the disregarding of inadequately prepared expert evidence and the proper place expert evidence holds in the evidential base of a case.

Your Witness in 2007

    Issue 50   December: In this issue we take a look at some unhelpful changes to the rules that govern the conduct of solicitors and at a further layer of regulation of expert witnesses being introduced by the Government. We consider how long experts should retain documents generated by an instruction and the role the expert witness has to play in the court's fact finding process. We ask whether fresh expert evidence can be grounds for reopening an appeal, and look at the consequences that can flow from a statutory body's failure, as opposed to a litigant's failure, to disclose expert evidence.
    Issue 49   September: In this issue we take a look at preliminary results of the latest in our series of expert witness surveys, the extent to which experts can control the scope of evidence in a case and what a judge must do if he wants to reject an expert's findings. We also look at a case that gives further judicial support for the right of an expert with a connection to a party being able to act as an expert witness. The cross-examination of SJEs and the role of experts in compromise agreements are also covered. Finally, we report on another medical reporting organisation (MRO) that has gone into liquidation (IMS of Richmond in Surrey) leaving thousands of doctors owed a total in excess of £4,000,000 - and offer guidance on how to bypass the MRO and seek redress direct from the instructing lawyer.
    Issue 48   June: In this issue we take a look at when exactly an expert's duty to the court begins, developments in the fitness to practise regime covering doctors, how to minimise problems that can arise when an instructing solicitor moves to another firm, the quality you should expect of the documents you receive as part of an instruction, how the judge should handle an expert's report that is clearly in error, and what can happen when an expert changes his opinion
    Issue 47   March: In this issue we take a look at the major differences between the jurisdictions in Scotland and England and Wales, the technical difference between experts giving opinion evidence as opposed to factual evidence, the growing opportunity for experts in risk assessment to provide expert evidence, the Government’s novel approach to using experts to increase the conviction rates in rape cases, a court report that re-examines the situation in which an expert is employed by one of the parties, and how causation can come into question in low-velocity RTAs. All in all, an eclectic mix of topics that hold the common thread of being centred on the use of expert witness evidence. We also announce the launch of 2 new Little Books for Experts: Expert Witness Fees and Expert Witness Practice in the Civil Arena.

Your Witness in 2006

    Issue 46   December: In this issue we take a look at the Court of Appeal judgment in the GMC -v- Meadow appeal, and the Chief Medical Officer’s (CMO) proposals for dealing with the problem of too few experts willing to offer their services to the Family Courts. While both articles are rooted in the medical arena, they have significance for all experts. The Court of Appeal decision on immunity will have important ramifications for all professionals. Likewise, the CMO's proposals for ‘opinion by committee’ represent a radical departure from the status quo. If adopted, we may well see the change filter across all disciplines as the courts alter the way they adduce expert evidence.
    Issue 45   September: Sherlock Holmes and the case of the missing humility - lessons for the 21st century from the Edwardian era • In court: etiquette and procedure • Experts and the ultimate issue • Adjudicator's discretion to disregard expert • What constitutes 'fresh evidence' • A guide to the courts of England and Wales • Testing frontier science
    Issue 44   June: Why has the Attorney General decided to intervene in the GMC’s appeal against Collins J? • The final text of the Criminal Procedure Rules - a missed opportunity? • Record, retain, reveal - guidance on disclosure for prosecution experts • A problem for experts claiming travel time in criminal cases resolved • Wollard -v- Fowler spells trouble for the MROs • Services for experts from the UK Register of Expert Witnesses
    Issue 43   March: Meadow -v- GMC - expert witnesses are now immune from disciplinary procedures initiated by anybody but the court • Fixed fees for experts on the cards • R -v- Campbell - court throws out prosecution over error in CV • MROs under fire as courts prevent lawyers recovering the MRO mark-up • Lord Carter’s Review on Legal Aid Procurement - a second helping • Criminal Procedure Rules - CrimPR Committee urged to go further • VAT on medico-legal work - HMRC urged to delay implementation

Your Witness in 2005

    Issue 42   December: Criminal Procedure Rules consultation • VAT on medico-legal reports consultation • Science on trial through the ages • Dangers in a CV • Lord Carter’s Review on Legal Aid Procurement • Earle -v- Centrica: disallowed MRO fees • McTear and the smoking statistic
    Issue 41   September: Meadow appeals GMC decision • LawyerLists service launch helps experts with their marketing to lawyers • Initial results from the Expert Witness Survey 2005 • CJC Experts Protocol - at last it’s official and we present it here in full and annotated!
    Issue 40   June: Accreditation or registration - CJC Forum report, Conclusions, Survey results and Action plan • Declining quality of solicitor instructions • Judicial discretion in appointment of experts • Is permission needed for a party to instruct and a second expert? • Should the trial judge read literature referred to in an expert’s report?
    Issue 39   March: The lesson of Barion Baluchi • The LSC Consultation: Accreditation, Price, Procedures • Survey on LSC Consultation • Joint & Several Liability • Court reports: party acting as the expert, when a witness of fact takes priority over the expert and more on the immunity of expert witnesses

Your Witness in 2004

    Issue 38   December: The LSC Consultation • Phillips -v- Symes - the potential for experts having to pay wasted costs in a legal action • The status of draft expert reports - can a party force their disclosure? • Judicial support for witness training • The dangers of ‘coaching’ - when does training go too far? • Money Claim Online - how to sue for your outstanding fees from the comfort of your armchair!
    Issue 37   September: Taking experts out of the court - is there a need to assess expert evidence ahead of the trial? • The substance of instructions - How much of one’s instructions need to be referenced in a report • The reluctant expert - things to consider when a report hasn’t been paid for • Getting paid III - enforcement • Letters
    Issue 36   June: Introduction to the new revetting system for experts listed in the Register • The reasons for ever shorter court timetables, the problems they’re causing and potential solutions • A guide to the use of experts in the legal systems of a number of our European neighbours • A final visit to the aftermath of the Court of Appeal decision in the Cannings case with a view to exploring whether it puts science on trial
    Issue 35   March: Another medico-legal reporting agency gets into trouble • Cot Death cases and experts - who will carry the can? • Coroner’s court reform - more work for experts • Agents - how experts can bypass the middleman • Copyright protection for experts • VAT for experts - including the up-coming introduction of VAT on medical reports

Your Witness in 2003

    Issue 34   December: Revalidation and the medical expert witness • Lawyer fees • Court reports, including The freedom to instruct, the discarded expert, letters of joint instruction • Exchanges from the e-wire - a solicitor’s personal responsibility for expert fees • Getting Paid II - when in dispute • Copyright for experts
    Issue 33   September: Report on the fifth in our series of two-yearly surveys of the expert witness world • Proceeds of Crime Act • Guidance on the thorny problem of getting paid • Preparing academics for the courtroom
    Issue 32   June: Why experts should keep their immunity • Expert survey 2003 • Digest, including Enron changes the rules, courts look again at delay, lawyers should prepare experts, the inadequate expert • Judicial criticism - the ARB exonerates the object of Judge Jacob’s wrath • The implications of the Sally Clark case for experts in child abuse cases • New horizons - new asbestos regulations look likely to create job opportunities for experts • Experts and legal privilege
    Issue 31   March: The importance of the Sally Clark appeal to experts • Focus on ADR • Court report - judges disregarding expert evidence • Electronic documents in evidence • Letters

Your Witness in 2002

    Issue 30   December: Is there property in an expert witness • Woolf - 4 years on • Irish caution • News
    Issue 29   September: ‘Agreed’ experts vs SJEs • Court report covering Factortame and contingent fees for experts • Letters • News • Conference and training update
    Issue 28   June: Disciplining experts • Selecting SJEs • Answering questions • Court reports • Letters • News • Training update
    Issue 27   April: Loads-a-Guidance! • CPR Part 35 changes • Sally Clarke • Court reports • CPR Protocol • News

Your Witness in 2001

    Issue 26   December: Expert witness survey 2001 • The eCast explained • The Auld Report • Copyrighted material and expert reports • News
    Issue 25   September: Expert agencies • Court report • Regulation: the CRFP stance • News and letters
    Issue 24   July: Regulation survey • Court reports • Letters
    Issue 23   April: Acting as an SJE - survey results • Court report • Usurping the judge • News and letters

Your Witness in 2000

    Issue 22   December: Experts’ immunity • Court reports • Conference reports
    Issue 21   October: The Human Rights Act and experts • Court reports (including justification for refusing inappropriate instructions) • Do experts still enjoy immunity? • News • Letters on the witness summons
    Issue 20   June: The witness summons • Small claims • CPR: The experts’ views • News
    Issue 19   April: News • Claimant/defendant instruction split • Mediation • Appealing CPR • Court report • Factsheets

Your Witness in 1999

    Issue 18   December: News • Medics as expert witnesses • Risk assessment and the new legal landscape • Conference reports
    Issue 17   September: Draft Code of Guidance for Experts • Expert witness survey 1999 • Risk assessments in experts’ reports • News and conferences • Criminal matters • Court reports
    Issue 16   June: OSS cop out • News • More on conditional fees • No win, no fee – and (?) no premiums • Accreditation... here we go again! • Services for experts • Court reports • Conferences and courses

Court Reports – leading expert witness-related cases at your fingertips

Read through the court cases of particular note to experts. Cases tend to cluster around the early 2000s simply because at this time the courts were busy honing the interpretation of the Civil Procedure Rules.

Professional level experts have full access to the complete case law search service of the Incorporated Council of Law Reporting for England and Wales. ICLR.3 opens up a vast archive of official law reports and UK legislation with Government-grade search technology. If you are a registered member, log in to check whether you have free access.

Anglo Group plc -v- Winther Brown & Co. Ltd and BML (Office Computers) Ltd [2000]Judge Toulmin recasts the Cresswell principles of expert evidence in the light of the CPRBaron -v- Lovell [1999]Failure to exchange an expert’s report in time is a good ground for disallowing it altogetherBrown & Another -v- Bennett & Others [2001]A litigant cannot resort to the procedural device of a witness summons to escape paying an expert witness for giving evidence in courtCarlson -v- Townsend [2001]Agreed experts, jointly selected under a pre-action protocol, are not the same as SJEs, and their reports are the sole property of the instructing partyDaniels -v- Walker [2000]Instructing a party-appointed expert after a single joint expert has reported is acceptable. The case also raised interesting issues on the Human Rights Act 1998Field -v- Leeds City Council [2000]An expert witness is not disqualified from giving evidence by being an employee of one of the partiesGareth Pearce -v- Ove Arup Partnership Ltd & Others [2001]Referal of an expert witness to his professional body for breach of duty under CPR 35Goulden -v- Wilson Barca (a firm) [2000]Solicitors acting for legally aided clients in criminal proceedings are not precluded by law from paying an expert’s fee and expenses for giving evidence in courtHopkins & Others [1988]Judicial support for the right of experts to make cancellation chargesJones -v- Kaney [2011]The immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished; that does not extend to the absolute privilege in respect of claims in defamation, nor does it undermine the immunity of other witnesses in respect of litigationLiverpool Roman Catholic Archdiocesan Trustees Inc. -v- Goldberg [2001]An expert can provide expert evidence on behalf of a friend, a colleague, employer or client – but must expect his independence to come under detailed scrutinyLucas-v-Barking, Havering & Redbridge Hospital NHS Trust [2003]The Court of Appeal reaffirms that the obligation of an expert is to ‘state the substance of all material instructions, whether written or oral, on the basis of which the report was written’ Matthews -v- Tarmac Bricks & Tiles Ltd [1999]Expert witnesses must be prepared to meet court requirements on their availability for trial, or be ready to explain why they cannot
Mutch -v- Allen [2001]Written questions (CPR 35.6) may, with the agreement of the courts or the parties, go beyond clarification. Experts should never make the decision on whether or not to deal with written questions – that decision is for the instructing solicitorNational Justice Compania Naviera SA -v- Prudential Assurance Co Ltd (The Ikarian Reefer) (No. 1) [1993]Mr Justice Cresswell’s classic statement of the duties of an expert witnessPeet -v- Mid-Kent Healthcare Trust [2002]One-to-one communication with an SJE is never permissible. SJEs should avoid telephone contact with the partiesPhillips -v- Symes [2004]The Court of Appeal asked whether expert witnesses need immunity from a costs application against them as a furtherance of the administration of justice and took the view that such a safeguard was not needed and allowed an expert witness to be joined as a respondent in an action for costsR (Factortame Ltd & Others) -v- Secretary of State for Transport, Local Government & the Regions (No 8) [2002]Expert witnesses should not have any financial interest in a case in which they are instructed. This means experts must not accept payment terms that depend on the outcome of the caseRaiss -v- Paimano [2001]Under CPR, the courts are still showing no inclination to diminish the expert’s right to immunity to suitRe N - BCM (Children) [2002]Trial judges must be expected to give reasons for rejecting expert evidenceRollinson -v- Kimberley Clark Ltd [2000]A solicitor should not instruct an expert who is known not to be available to attend courtSage -v- Feiven [2002]‘There is no property in a witness’ - unless the witness in question has already been instructed as an ‘agreed’ expert (i.e. pre-action)Stanton -v- Callaghan [1998]Experts are entitled to immunity from suit ‘to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice’Stevens -v- Gullis [2000]An expert’s failure to comply with CPR resulted in his client losing the opportunity of pursuing a claim and being saddled with some very expensive legal feesVogel -v- Leeds District Magistrates Court [2005]Is the discretion of the Determining Officer to pay experts’ travel time claims in criminal cases fettered? No, but the system is still pretty fetid!

Guidance for the instruction of experts in civil claims 2014

Downloads
You can download the CJC Guidance
in Adobe Acrobat PDF format.
CJC Protocol in PDF format CJC Guidance 2014

This revised guidance from the Civil Justice Council (CJC) leaves much of the original guidance in place but adds some new material in areas that have changed, or been introduced, since 2007. A review of this 2014 version (which works through the full document offering a refresher on the unchanged guidance and an introduction to the new areas) is available in Your Witness 78.

 

Introduction

1. The purpose of this guidance is to assist litigants, those instructing experts and experts to understand best practice in complying with Part 35 of the Civil Procedure Rules (CPR) and court orders. Experts and those who instruct them should ensure they are familiar with CPR 35 and the Practice Direction (PD35). This guidance replaces the Protocol for the instruction of experts in civil claims(2005, amended 2009).

2. Those instructing experts, and the experts, must also have regard to the objectives underpinning the Pre‐Action Protocols to:‐

  1. encourage the exchange of early and full information about the expert issues involved in the prospective claim;
  2. enable the parties to avoid or reduce the scope of the litigation by agreeing the whole or part of an expert issue before proceedings are started; and
  3. support the efficient management of proceedings where litigation cannot be avoided.


3. Additionally, experts and those instructing them should be aware that some cases will be governed by the specific pre-action protocols and some may be“specialist proceedings” (CPR 49) where specific rules may apply.

Selecting and Instructing experts

The need for experts

4. Those intending to instruct experts to give or prepare evidence for the purpose of civil proceedings should consider whether expert evidence is necessary, taking account of the principles set out in CPR Parts 1 and 35, and in particular whether “it is required to resolve the proceedings” (CPR 35.1).

5. Although the court's permission is not generally required to instruct an expert, the court's permission is required before an expert’s report can be relied upon or an expert can be called to give oral evidence (CPR 35.4).

6. Advice from an expert before proceedings are started which the parties do not intend to rely upon in litigation is likely to be confidential; this guidance does not apply then. The same applies where, after the commencement of proceedings, experts are instructed only to advise (e.g. to comment upon a single joint expert’s report) and not to prepare evidence for the proceedings. The expert’s role then is that of an expert advisor.

7. However this guidance does apply if experts who were formerly instructed only to advise, are later instructed as an expert witness to prepare or give evidence in the proceedings.

8. In the remainder of this guidance, a reference to an expert means an expert witness to whom Part 35 applies.

Duties and obligations of experts

9. Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code. However when they are instructed to give or prepare evidence for civil proceedings they have an overriding duty to help the court on matters within their expertise (CPR35.3). This duty overrides any obligation to the person instructing or paying them. Experts must not serve the exclusive interest of those who retain them.

10. Experts should be aware of the overriding objective that courts deal with cases justly and that they are under an obligation to assist the court in this respect. This includes dealing with cases proportionately (keeping the work and costs in proportion to the value and importance of the case to the parties), expeditiously and fairly (CPR 1.1).

11. Experts must provide opinions that are independent, regardless of the pressures of litigation. A useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by another party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates or mediators.

12. Experts should confine their opinions to matters which are material to the disputes and provide opinions only in relation to matters which lie within their expertise. Experts should indicate without delay where particular questions or issues fall outside their expertise.

13. Experts should take into account all material facts before them. Their reports should set out those facts and any literature or material on which they have relied in forming their opinions. They should indicate if an opinion is provisional, or qualified, or where they consider that further information is required or if, for any other reason, they are not satisfied that an opinion can be expressed finally and without qualification.

14. Experts should inform those instructing them without delay of any change in their opinions on any material matter and the reasons for this (see also paragraphs 64-66).

15. Experts should be aware that any failure to comply with the rules or court orders, or any excessive delay for which they are responsible, may result in the parties who instructed them being penalised in costs, or debarred from relying upon the expert evidence (see also paragraphs 89-92).

The appointment of experts

16. Before experts are instructed or the court’s permission to appoint named experts is sought, it should be established whether the experts:

  1. have the appropriate expertise and experience for the particular instruction;
  2. are familiar with the general duties of an expert;
  3. can produce a report, deal with questions and have discussions with other experts within a reasonable time, and at a cost proportionate to the matters in issue;
  4. are available to attend the trial, if attendance is required; and
  5. have no potential conflict of interest.

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

  1. the capacity in which the expert is to be appointed (e.g. party appointed expert or single joint expert);
  2. the services required of the expert (e.g. provision of an expert's report, answering questions in writing, attendance at meetings and attendance at court);
  3. time for delivery of the report;
  4. the basis of the expert’s charges (e.g. daily or hourly rates and an estimate of the time likely to be required, or a fixed fee for the services). Parties must provide an estimate to the court of the costs of the proposed expert evidence and for each stage of the proceedings (R.35.4(2);
  5. travelling expenses and disbursements;
  6. cancellation charges;
  7. any fees for attending court;
  8. time for making the payment;
  9. whether fees are to be paid by a third party;
  10. if a party is publicly funded, whether the expert’s charges will be subject to assessment; and
  11. guidance that the expert’s fees and expenses may be limited by the court (note expert’s recoverable fees in the small claims track cannot exceed £750: see PD 27 paragraph 7 ).

18. When necessary, arrangements should be made for dealing with questions to experts and discussions between experts, including any directions given by the court.

19. Experts should be kept informed about deadlines for all matters concerning them. Those instructing experts should send them promptly copies of all court orders and directions that may affect the preparation of their reports or any other matters concerning their obligations.

Instructions

20. Those instructing experts should ensure that they give clear instructions (and attach relevant documents), including the following:

  1. basic information, such as names, addresses, telephone numbers, dates of incidents and any relevant claim reference numbers;
  2. the nature of the expertise required;
  3. the purpose of the advice or report, a description of the matter(s) to be investigated, the issues to be addressed and the identity of all parties;
  4. the statement(s) of case (if any), those documents which form part of disclosure and witness statements and expert reports that are relevant to the advice or report, making clear which have been served and which are drafts and when the latter are likely to be served;
  5. where proceedings have not been started, whether they are contemplated and, if so, whether the expert is being asked only for advice;
  6. an outline programme, consistent with good case management and the expert’s availability, for the completion and delivery of each stage of the expert’s work; and
  7. where proceedings have been started, the dates of any hearings (including any case/costs management conferences and/or pre-trial reviews), the dates fixed by the court or agreed between the parties for the exchange of experts' reports and any other relevant deadlines to be adhered to, the name of the court, the claim number, the track to which the claim has been allocated and whether there is a specific budget for the experts’ fees.

21. Those instructing experts should seek to agree, where practicable, the instructions for the experts, and that they receive the same factual material.

Acceptance of instructions

22. Experts should confirm without delay whether they accept their instructions.

23. They should also inform those instructing them (whether on initial instruction or at any later stage) without delay if:

  1. instructions are not acceptable because, for example, they require work that falls outside their expertise, impose unrealistic deadlines,or are insufficiently clear. Experts who do not receive clear instructions should request clarification and may indicate that they are not prepared to act unless and until such clear instructions are received;
  2. they consider that instructions are insufficient to complete the work;
  3. they become aware that they may not be able to fulfil any of the terms of appointment;
  4. the instructions and/or work have, for any reason, placed them in conflict with their duties as an expert. Where an expert advisor is approached to act as an expert witness they will need to consider carefully whether they can accept a role as expert witness; or
  5. they are not satisfied that they can comply with any orders that have been made.

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

25. Where an expert identifies that the basis of his instruction differs from that of another expert, he should inform those instructing him.

26. Experts should agree the terms on which they are to be paid with those instructing them. Experts should be aware that they will be required to provide estimates for the court and that the court may limit the amount to be paid as part of any order for budgeted costs (CPR 35.4(2) and (4) and 3.15).

Experts’ Withdrawal

27. Where experts’ instructions are incompatible with their duties, through incompleteness, a conflict between their duty to the court and their instructions, or for any other reason, the experts may consider withdrawing from the case. However, experts should not do so without first discussing the position with those who instruct them and considering whether it would be more appropriate to make a written request for directions from the court. If experts do withdraw, they must give formal written notice to those instructing them.

Experts’ right to ask court for directions

28. Experts may request directions from the court to assist them in carrying out their functions (CPR 35.14), for example, if experts consider that they have not been provided with information they require. Experts should normally discuss this with those who instruct them before making a request. Unless the court otherwise orders, any proposed request for directions should be sent to the party instructing the expert at least seven days before filing any request with the court, and to all other parties at least four days before filing it.

29. Requests to the court for directions should be made by letter clearly marked“expert’s request for directions” containing:

  1. the title of the claim;
  2. the claim number;
  3. the name of the expert;
  4. why directions are sought; and
  5. copies of any relevant documentation.

Experts’ access to information held by the parties

30. Experts should try to ensure that they have access to all relevant information held by the parties, and that the same information has been disclosed to each expert in the same discipline. Experts should seek to confirm this soon after accepting instructions, notifying instructing solicitors of any omissions.

31. If a solicitor sends an expert additional documents before the report is finalised the solicitor must tell the expert whether any witness statements or expert reports are updated versions of those previously sent and whether they have been filed and served.

32. Experts should be specifically aware of CPR 35.9. This provides that, where one party has access to information that is not readily available to the other party, the court may direct the party who has access to the information to prepare, file and copy to the other party a document recording the information. If experts require such information which has not been disclosed, they should discuss the position with those instructing them without delay, so that a request for the information can be made, and, if not forthcoming, an application can be made to the court.

33. Any request for further information from the other party made by an expert should be in a letter to the expert’s instructing party and should state why the information is necessary and the significance in relation to the expert issues in the case.

Single joint experts

34. CPR 35.7-8 and PD 35 paragraph 7 deal with the instruction and use of joint experts by the parties and the powers of the court to order their use. The CPR encourage the use of joint experts. Wherever possible a joint report should be obtained. Single joint experts are the norm in cases allocated to the small claims track and the fast track.

35. In the early stages of a dispute, when investigations, tests, site inspections, photographs, plans or other similar preliminary expert tasks are necessary, consideration should be given to the instruction of a single joint expert, especially where such matters are not expected to be contentious. The objective should be to agree or to narrow issues.

36. Experts who have previously advised a party (whether in the same case or otherwise) should only be proposed as single joint experts if the other parties are given all relevant information about the previous involvement.

37. The appointment of a single joint expert does not prevent parties from instructing their own experts to advise (but the cost of such expert advisors will not be recoverable from another party).

Joint instructions

38. The parties should try to agree joint instructions to single joint experts, but in default of agreement, each party may give instructions. In particular, all parties should try to agree what documents should be included with instructions and what assumptions single joint experts should make.

39. Where the parties fail to agree joint instructions, they should try to agree where the areas of disagreement lie and their instructions should make this clear. If separate instructions are given, they should be copied to the other instructing parties.

40. Where experts are instructed by two or more parties, the terms of appointment should, unless the court has directed otherwise, or the parties have agreed otherwise, include:

  1. a statement that all the instructing parties are jointly and severally liable to pay the experts’ fees and, accordingly, that experts’ invoices should be sent simultaneously to all instructing parties or their solicitors (as appropriate); and
  2. a copy of any order limiting experts’ fees and expenses (CPR35.8(4)(a)).

41. Where instructions have not been received by the expert from one or more of the instructing parties, the expert should give notice (normally at least 7 days) of a deadline for their receipt. Unless the instructions are received within the deadline the expert may begin work. If instructions are received after the deadline but before the completion of the report the expert should consider whether it is practicable to comply without adversely affecting the timetable for delivery of the report and without greatly increasing the costs and exceeding any court approved budget. An expert who decides to issue a report without taking into account instructions received after the deadline must inform the parties, who may apply to the court for directions. In either event the report must show clearly that the expert did not receive instructions within the deadline, or, as the case may be, at all.

Conduct of the single joint expert

42. Single joint experts should keep all instructing parties informed of any material steps that they may be taking by, for example, copying all correspondence to those instructing them.

43. Single joint experts are Part 35 experts and so have an overriding duty to the court. They are the parties’ appointed experts and therefore owe an equal duty to all parties. They should maintain independence, impartiality and transparency at all times.

44. Single joint experts should not attend a meeting or conference that is not a joint one, unless all the parties have agreed in writing or the court has directed that such a meeting may be held. There also needs to be agreement about who is to pay the experts’ fees for the meeting.

45. Single joint experts may request directions from the court (see paragraphs28-29).

46. Single joint experts should serve their reports simultaneously on all instructing parties. They should provide a single report even though they may have received instructions that contain conflicts. If conflicting instructions lead to different opinions (for example, because the instructions require the expert to make different assumptions of fact), reports may need to contain more than one set of opinions on any issue. It is for the court to determine the facts.

Cross-examination of the single joint expert

47. Single joint experts do not normally give oral evidence at trial but if they do, all parties may ask questions. In general, written questions (CPR 35.6) should be put to single joint experts before requests are made for them to attend court for the purpose of cross-examination.

Experts’ reports

48. The content of experts’ reports should be governed by their instructions and general obligations, any court directions, CPR 35 and PD35, and the experts’ overriding duty to the court.

49. In preparing reports, experts should maintain professional objectivity and impartiality at all times.

50. PD 35, paragraph 3.1 provides that experts’ reports should be addressed to the court and gives detailed directions about their form and content. All experts and those who instruct them should ensure that they are familiar with these requirements.

51. Model forms of experts’ reports are available from bodies such as the Academy of Experts and the Expert Witness Institute and a template for medical reports has been created by the Ministry of Justice.

52. Experts’ reports must contain statements that they:

  1. understand their duty to the court and have complied and will continue to comply with it; and
  2. are aware of and have complied with the requirements of CPR 35 and PD 35 and this guidance.

53. Experts’ reports must also be verified by a statement of truth. The form of the statement of truth is:

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”

54. The details of experts’ qualifications in reports should be commensurate with the nature and complexity of the case. It may be sufficient to state any academic and professional qualifications. However, where highly specialised expertise is called for, experts should include the detail of particular training and/or experience that qualifies them to provide that specialised evidence.

55. The mandatory statement of the substance of all material instructions should not be incomplete or otherwise tend to mislead. The imperative is transparency. The term “instructions” includes all material that solicitors send to experts. These should be listed, with dates, in the report or an appendix. The omission from the statement of ‘off-the-record’ oral instructions is not permitted. Courts may allow cross-examination about the instructions if there are reasonable grounds to consider that the statement may be inaccurate or incomplete.

56. Where tests of a scientific or technical nature have been carried out, experts should state:

  1. the methodology used; and
  2. by whom the tests were undertaken and under whose supervision, summarising their respective qualifications and experience.

57. When addressing questions of fact and opinion, experts should keep the two separate. Experts must state those facts (whether assumed or otherwise) upon which their opinions are based; experts should have primary regard to their instructions (paragraphs 20-25 above). Experts must distinguish clearly between those facts that they know to be true and those facts which they assume.

58. Where there are material facts in dispute experts should express separate opinions on each hypothesis put forward. They should not express a view in favour of one or other disputed version of the facts unless, as a result of particular expertise and experience, they consider one set of facts as being improbable or less probable, in which case they may express that view and should give reasons for holding it.

59. If the mandatory summary of the range of opinion is based on published sources, experts should explain those sources and, where appropriate, state the qualifications of the originator(s) of the opinions from which they differ, particularly if such opinions represent a well-established school of thought.

60. Where there is no available source for the range of opinion, experts may need to express opinions on what they believe to be the range that other experts would arrive at if asked. In those circumstances, experts should make it clear that the range that they summarise is based on their own judgement and explain the basis of that judgement.

Prior to service of reports

61. Before filing and serving an expert’s report solicitors must check that any witness statements and other experts’ reports relied upon by the expert are the final served versions.

Conclusions of reports

62. A summary of conclusions is mandatory. Generally the summary should be at the end of the report after the reasoning. There may be cases, however,where the court would find it helpful to have a short summary at the beginning, with the full conclusions at the end. For example, in cases involving highly complex matters which fall outside the general knowledge of the court the judge may be assisted in the comprehension of the facts and analysis if the report explains at the outset the basis of the reasoning.

Sequential exchange of experts’ reports

63. Where there is to be sequential exchange of reports then the defendant’s expert’s report usually will be produced in response to the claimant’s. The defendant’s report should then :

  1. confirm whether the background set out in the claimant’s expert report is agreed, or identify those parts that in the defendant’s expert’s view require revision, setting out the necessary revisions. The defendant’s expert need not repeat information that is adequately dealt with in the claimant’s expert report;
  2. focus only on those material areas of difference with the claimant’s expert’s opinion. The defendant’s report should identify those assumptions of the claimant’s expert that they consider reasonable (and agree with) and those that they do not; and
  3. in particular where the experts are addressing the financial value of heads of claim (for example, the costs of a care regime or loss of profits), the defendant’s report should contain a reconciliation between the claimant’s expert’s loss assessment and the defendant’s, identifying for each assumption any different conclusion to the claimant’s expert.

Amendment of reports

64. It may become necessary for experts to amend their reports:

  1. as a result of an exchange of questions and answers;
  2. following agreements reached at meetings between experts; or
  3. where further evidence or documentation is disclosed.

65. Experts should not be asked to amend, expand or alter any parts of reports in a manner which distorts their true opinion, but may be invited to do so to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. Although experts should generally follow the recommendations of solicitors with regard to the form of reports, they should form their own independent views on the opinions and contents of their reports and not include any suggestions that do not accord with their views.

66. Where experts change their opinion following a meeting of experts, a signed and dated note to that effect is generally sufficient. Where experts significantly alter their opinion, as a result of new evidence or for any other reason, they must inform those who instruct them and amend their reports explaining the reasons. Those instructing experts should inform other parties as soon as possible of any change of opinion.

Written questions to experts

67. Experts have a duty to provide answers to questions properly put. Where they fail to do so, the court may impose sanctions against the party instructing the expert, and, if there is continued non-compliance, debar a party from relying on the report. Experts should copy their answers to those instructing them.

68. Experts’ answers to questions become part of their reports. They are covered by the statement of truth, and form part of the expert evidence.

69. Where experts believe that questions put are not properly directed to the clarification of the report, or have been asked out of time, they should discuss the questions with those instructing them and, if appropriate, those asking the questions. Attempts should be made to resolve such problems without the need for an application to the court for directions, but in the absence of agreement or application for directions by the party or parties, experts may themselves file a written request to court for directions (see paragraphs 28-29).

Discussions between experts

70. The court has the power to direct discussions between experts for the purposes set out in the Rules (CPR 35.12). Parties may also agree that discussions take place between their experts at any stage. Discussions are not mandatory unless ordered by the court.

71. The purpose of discussions between experts should be, wherever possible, to:

  1. identify and discuss the expert issues in the proceedings;
  2. reach agreed opinions on those issues, and, if that is not possible, narrow the issues;
  3. identify those issues on which they agree and disagree and summarise their reasons for disagreement on any issue; and
  4. identify what action, if any, may be taken to resolve any of the outstanding issues between the parties.

They are not to seek to settle the proceedings.

72. Where single joint experts have been instructed but parties have, with the permission of the court, instructed their own additional Part 35 experts, there may, if the court so orders or the parties agree, be discussions between the single joint experts and the additional Part 35 experts. Such discussions should be confined to those matters within the remit of the additional Part 35 experts or as ordered by the court.

73. Where there is sequential exchange of expert reports, with the defendant’s expert’s report prepared in accordance with the guidance at paragraph 63 above, the joint statement should focus upon the areas of disagreement, save for the need for the claimant’s expert to consider and respond to material, information and commentary included within the defendant’s expert’s report.

74. Arrangements for discussions between experts should be proportionate to the value of cases. In small claims and fast-tracks cases there should not normally be face to face meetings between experts: telephone discussion or an exchange of letters should usually suffice. In multi-track cases discussion may be face to face but the practicalities or the proportionality principle may require discussions to be by telephone or video-conference.

75. In multi-track cases the parties, their lawyers and experts should cooperate to produce an agenda for any discussion between experts, although primary responsibility for preparation of the agenda should normally lie with the parties' solicitors.

76. The agenda should indicate what has been agreed and summarise concisely matters that are in dispute. It is often helpful to include questions to be answered by the experts. If agreement cannot be reached promptly or a party is unrepresented, the court may give directions for the drawing up of the agenda. The agenda should be circulated to experts and those instructing them to allow sufficient time for the experts to prepare for the discussion.

77. Those instructing experts must not instruct experts to avoid reaching agreement (or to defer doing so) on any matter within the experts' competence. Experts are not permitted to accept such instructions.

78. The content of discussions between experts should not be referred to at trial unless the parties agree (CPR 35.12(4)). It is good practice for any such agreement to be in writing.

79. At the conclusion of any discussion between experts, a joint statement should be prepared setting out:

  1. issues that have been agreed and the basis of that agreement;
  2. issues that have not been agreed and the basis of the disagreement;
  3. any further issues that have arisen that were not included in the original agenda for discussion; and
  4. a record of further action, if any, to be taken or recommended, including if appropriate a further discussion between experts.

80. The joint statement should include a brief re-statement that the experts recognise their duties (or a cross-reference to the relevant statements in their respective reports). The joint statement should also include an express statement that the experts have not been instructed to avoid reaching agreement (or otherwise defer from doing so) on any matter within the experts’ competence.

81. The joint statement should be agreed and signed by all the parties to the discussion as soon as practicable.

82. Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound (CPR 35.12(5)). However, parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs.

83. Since April 2013 the court has had the power to order at any stage that experts of like disciplines give their evidence at trial concurrently, not sequentially with their party’s evidence as has been the norm hitherto: PD 35 paragraphs 11.1-11.4 (this is often known as “hot–tubbing”). The experts will then be questioned together, firstly by the judge based upon disagreements in the joint statement, and then by the parties’ advocates. Concurrent evidence can save time and costs, and assist the judge in assessing the difference of views between experts. Experts need to be told in advance of the trial if the court has made an order for concurrent evidence.

Attendance of experts at court

84. Those instructing experts should ascertain the availability of experts before trial dates are fixed; keep experts updated with timetables (including the dates and times experts are to attend), the location of the court and court orders; consider, where appropriate, whether experts might give evidence via video-link; and inform experts immediately if trial dates are vacated or adjourned.

85. Experts have an obligation to attend court and should ensure that those instructing them are aware of their dates to avoid and that they take all reasonable steps to be available.

86. Experts should normally attend court without the need for a witness summons, but on occasion they may be served to require their attendance (CPR34). The use of witness summonses does not affect the contractual or other obligations of the parties to pay experts' fees.

87. When a case has been concluded either by a settlement or trial the solicitor should inform the experts they have instructed.

Experts and conditional and contingency fees

88. Payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In ex parte Factortame (no8) [2003] QB 381 at [73], the court said ‘we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement’.

Sanctions

89. Solicitors and experts should be aware that sanctions might apply because of a failure to comply with CPR 35, the PD or court orders.

90. Whether or not court proceedings have been commenced a professional instructing an expert, or an expert, may be subject to sanction for misconduct by their professional body/regulator.

91. If proceedings have been started the court has the power under CPR 44 to impose sanctions:

  1. cost penalties against those instructing the expert (including a wasted costs order) or the expert (such as disallowance or reduction of the expert fee) (CPR 35.4(4) and CPR 44).
  2. that an expert’s report/evidence be inadmissible.

92. Experts should also be aware of other possible sanctions

  1. In more extreme cases, if the court has been misled it may invoke general powers for contempt in the face of the court. The court would then have the power to fine or imprison the wrongdoer.
  2. If an expert commits perjury, criminal sanctions may follow.
  3. If an expert has been negligent there may be a claim on their professional indemnity insurance.

Articles published in other journals

2018

Playing by the rules: experts’ duty of candour 19 November 2018
NLJ 2018 Experts duty of candour

Chris Pamplin explains how the courts might handle experts who appear to have failed in their duty.

Who should bear the cost of expert’s mistakes 17 August 2018
NLJ 2018 Who should bear the cost

Is a crown expert witness part of the team or independent? Chris Pamplin looks at the costs implications.

A race against time 12 October 2018
NLJ 2018 A Race Against Time

Are the courts softening their approach to late changes to experts? Chris Pamplin reports.

Confidentiality too far? 1 June 2018
NLJ 2018 Confidentiality too far

Chris Pamplin considers the question of expert confidentiality and trade secrets

2017

Expert selection. 10 November 2017
NLJ 2017 Expert selection

When instructing a new expert, is disclosure of an earlier report inevitable? Dr Chris Pamplin reports

The ‘over-eager’ judge. 11 August 2017
NLJ 2017 Over eager judge

Dr Chris Pamplin looks at how far a judge can go in taking a proactive role towards experts in proceedings

Confronting dogma Pt1. 7 April 2017
NLJ 2017 Confronting dogma Pt1

Chris Pamplin looks for the lessons to draw from an expert witness who spoke against perceived wisdom and got into deep water

Experts talk back. 13 October 2017
NLJ 2017 Experts talk back

Dr Chris Pamplin analyses the results of the 2017 UK Register of Expert Witnesses’ expert witness survey

Confronting dogma Pt2. 7 July 2017
NLJ 2017 Confronting dogma Pt2

Post-Squier, Chris Pamplin reflects on the use of previous judgments in disciplinary proceedings

The Brexpert witness. 24 February 2017
NLJ 2017 Brexpert Witness

Chris Pamplin takes a broad view of the possible implications for expert witnesses of Britain’s exit from the EU

2016

Trading standards. 11 November 2016
NLJ 2016 Consumer Law

Chris Pamplin looks at how greater exposure to litigants in person is also exposing expert witnesses to consumer law

A civil report in the dock. 12 August 2016
NLJ 2016 Civil Expert in the Dock

The issues that can arise when a report written in contemplation of civil proceedings gets drawn into criminal proceedings

Witness headaches. 16 April 2016
NLJ 2016 An Ill Expert

What can happen if an expert witness is prevented from attending for bona fide reasons?

NLJ_2016_Flexible_Trials. 16 September 2016
NLJ 2016 Flexible Trials

Dr Chris Pamplin looks at the impact of flexible trials on expert witness work

The anonymous expert. 1 July 2016
NLJ 2016 The Anonymous Expert

Should expert witnesses always be named?

2015

A costly clash. 20 November 2015
NLJ 2015 LAA Ignores Court Order

Consideration of a case where the Legal Aid Agency thought it could override the will of the court

Maths on trial (Pt 1). 6 June 2015
NLJ 2015 Maths Pt1

Dr Chris Pamplin looks at some common mathematical errors that have led courts astray, and how to avoid them

Compare & Contrast (Pt 1). 23 January 2015
NLJ 2015 EP Pt1

Dr Chris Pamplin explains why the new guidance for experts should be required reading for all expert witnesses and those who instruct them

Maths on trial (Pt 2). 14 August 2015
NLJ 2015 Maths Pt2

Dr Chris Pamplin looks at some common mathematical errors that have led courts astray, and how to avoid them

Compare & Contrast (Pt 2). 27 February 2015
NLJ 2015 EP Pt2

Dr Chris Pamplin continues his exploration of the new guidance for experts

2014

A matter of opinion. 24 January 2014
NLJ 2014 3rd Hand Evidence

Is expert opinion produced outside the court process admissible?

A foreign affair. 19 September 2014
NLJ 2014 Cross Border PI Claims

Chris Pamplin looks at some of the expert witness issues that can arise in litigation that crosses EU member state borders.

Game Over. 4 July 2014
NLJ 2014 Ultimate Issue

Are experts now able to tackle the ultimate issue?

Backlash on whiplash. 19 November 2014
NLJ 2014 Whiplash

Chris Pamplin looks at recent moves by the Ministry of Justice to control the whiplash claims industry and MROs

2013

Switching Experts. 21 June 2013
NLJ 2013 Switching Experts

Chris Pamplin considers what can be done when the expert’s opinion changes.

Balance of Power. 27 September 2013
NLJ 2013 Balance of Power

Chris Pamplin looks at whether the court can override an expert determination decision.

The best fit. 19 April 2013
NLJ 2013 The Best Fit

Chris Pamplin considers how easy it is to choose the right expert.

Expert Analysis 18 October 2013
NLJ 2013 Expert Analysis

Dr Chris Pamplin shares the top line results of the 2013 UK Register of Expert Witnesses survey

2012

Cause & effect. 23 November 2012
NLJ 2012 But For Test

Chris Pamplin looks back at clinical negligence case law and finds a relaxation in the burden of proof.

The heat is on. 20 July 2012
NLJ 2012 Hot Tub Trial

Chris Pamplin reports on some initial findings about expert evidence given concurrently from the ‘hot tub’

Relative values. 27 April 2012
NLJ 2012 FJR

Dr Chris Pamplin takes a hard look at the expert witness-specific recommendations from the Family Justice Review

Getting in line. 28 September 2012
NLJ 2012 Revised EP

Chris Pamplin considers revised guidance for expert witnesses and those who instruct them.

No wizards or wands. 29 June 2012
NLJ 2012 Psychologists

Chris Pamplin and Bernard Kat clarify the meaning of the term ‘psychologist’

Full disclosure? 27 January 2012
NLJ 2012 Pre Action Disclosure

Chris Pamplin debates the disclosability of pre-action expert reports

2011

In confidence? 25 November 2011
NLJ 2011 Confidentiality

Chris Pamplin looks at the extent to which an expert witness’s evidence might be affected by earlier exposure to information

Supreme Court experts? 8 April 2011
NLJ 2011 Immunity

Chris Pamplin reflects on the decision in Jones v Kaney and predicts some unintended consequences

Expert analysis. 4 November 2011
NLJ 2011 Survey

Chris Pamplin highlights changes and contrasts in the expert witness market

2010

Time to jump? 24 September 2010
NLJ 2010 Immunity

Is the end in sight for expert witness immunity? Dr Chris Pamplin considers the evidence

Approach with care. 29 January 2010
NLJ 2010 MoJ Fee Capping

Dr Chris Pamplin explains how to save money without damaging the supply of expert witnesses

What’s the crack? 18 August 2010
NLJ 2010 Cracking Brinkmanship

Chris Pamplin analyses a case of cracking brinkmanship

2007

Limiting the evidence. 26 October 2007
NLJ 2007 Limiting The Evidence

What is the expert’s role in gathering and presenting evidence? Chris Pamplin reports.

2005

Bearing false witness: the regulatory effect. 18 November 2005
NLJ 2005 Bearing False Witness

Chris Pamplin shines the spotlight on ‘false’ expert evidence cases, but finds that proposed changes to the regulation of expert witnesses may still leave the courts fumbling in the dark with scientific opinion

Don’t shoot the messenger. 25 February 2005
NLJ 2005 LSC

Chris Pamplin reviews the LSC proposals on the use of experts in publicly funded cases and argues that, if implemented, they would add to the ongoing erosion of access to justice for the most vulnerable in society

© J S  Publications 1988–2018