Woolf - a year on - The use of experts

Introduction

Lord Woolf’s Civil Procedure Rules change dramatically the role of experts in civil proceedings. Under the former Rules of the Supreme Court it was possible for cases to become a battle between experts, who could exert considerable control over the timetable of the case and the length of the Court hearing. Experts tended to be diametrically opposed in viewpoint, and largely intractable.

The new rules

The CPR aim to change this. No longer are the parties allowed experts as of right. Expert evidence may only be called with the Court’s permission and experts’ first duties are owed to the Court rather than the parties. Their reports must state clearly all of their material instructions and the Court has the power to order that one joint expert be appointed rather than one expert for each party. This last point has been the subject of considerable criticism, generally on the ground that it is unrealistic. If the parties’ positions allowed of only one expert view, then arguably they ought not to be litigating in the first place, and yet the CPR have stopped short of removing parties’ rights to litigate freely.

A cautionary story

The most dramatic illustration of the Court’s powers under the new rules appeared in Stevens v R J Gullis [1999] 44 EG 143. The claimant had carried out building works at Mr Gullis’s premises in Mid-Glamorgan and sued for payment of part of his fee. Mr Gullis counterclaimed for defective and incomplete work and delay in completion. Each party had an expert, and the Court ordered that the experts were to meet to identify the areas on which they agreed or disagreed. They were to record their discussions in a memorandum for the Court and then each was to produce a formal report of his own opinion. The defendant’s expert attended the meeting, but failed to respond properly to the drafting of the memorandum for the Court. Eventually he was ordered to comply with the requirement, upon pain of being barred from giving evidence. Still he failed to comply, and was duly barred. The Judge then ruled that, as the expert’s evidence was the linchpin of the defendant’s counterclaim, the entire counterclaim fell over. The defendant was not permitted to instruct a new expert. This decision was upheld on appeal.

Disclosure

Another aspect of the rules on the use of experts which is causing concern is the requirement that experts must, in making their reports to the Court, disclose “the substance of all material instructions, whether written or oral, on the basis of which the report was written.” It was initially thought that this might mean that instructions to experts were no longer privileged. There were also worries that it might not be possible to send experts a complete set of documents about a case lest they referred in their reports to documents unfavourable to the party instructing them. However, it is important to realise that the requirement only applies to instructions supplied for the purpose of the report prepared for the Court, and an expert only becomes an expert with a duty to the Court once the Court has ordered that he or she should be appointed. It is therefore possible for parties to consult experts prior to their appointment by the Court and for the instructions given to the expert for the purpose of that initial consultation to remain privileged.

Conclusion

The role of experts has changed. Expert evidence is only permitted to be adduced with the permission of the Court and the expert’s first duty is to the Court itself and not the party instructing the expert. Experts’ failings to obey the directions of the Court can have unhappy consequences for the parties and it is therefore vital to ensure that experts are properly briefed about their new responsibilities. Experts are now required to disclose the substance of all material instructions in their reports, which may mean that certain documents used in instructing them will lose their privilege. Care must be taken when considering the basis of instructions to an expert.

For further information contact Tim Hardy, Head of the Commercial Litigation and Dispute Resolution group on +44 (0)20 7367 3000 or e-mail
[email protected] for further information.