7. RULES
7.1 The general rules are found in CPR Part 35, the attached practice direction and several of the pre-action protocols (including the recently implemented Practice Direction on Pre-Action Conduct). Additional guidance for specialist courts are found in the Admiralty and Commercial Courts Guide (section H2 and Appendix 11), Technology and Construction Court Guide (section 13), Chancery Guide (chapter 4) and Queen’s Bench Guide (section 7.9).
7.2 In implementing Lord Woolf's suggested reforms to rein in the costs of expert evidence, the CPR impose a duty on the court to restrict expert evidence to that which
52 When the same document is before the court in more than one place (and sometimes in my experience many times over in different bundles) this is not only a huge waste of paper and costs. It also makes life difficult both for the judge and counsel, who may wish to annotate key documents during the course of the evidence; such annotations become spread around the trial bundle.
53 I.e. deleting the references to page numbers in an earlier superseded bundle and substituting page numbers in the new trial bundle.
Chapter 42: Witness statements and expert reports is reasonably required to resolve the proceedings.54 The court has the power to
control the evidence: no party may use expert evidence without its permission.55 The court will consider the overriding objective when deciding whether to give permission and an expert will be allowed in circumstances where it is considered that the professional or technical knowledge of the expert will be of value to the court on matters which are or may be outside its expertise.
7.3 Where expert evidence is permitted the expert may be required to:
(i) prepare a report on the relevant issues, in accordance with the requirements set out in the CPR;
(ii) respond to one round of questions on his report from the other party;
(iii) attend a meeting with any other expert to try to narrow the issues/reach agreement (the discussions are without prejudice);
(iv) prepare a joint report with the other expert setting out (a) the issues they agree upon and (b) the issues upon which they are unable to agree and why they do not agree (this is disclosable); and
(v) attend court to be cross-examined on his evidence.
7.4 The CPR codified the expert's duty to help the court.56 In other words, although generally instructed by a single party, the expert is independent and must act impartially to assist the court in resolving the case justly rather than for the benefit of the instructing party. To this end, the instructions from a solicitor to the expert must be appended to the expert report. An expert may be appointed by one or all parties. Although experts are remunerated for their time and expenses, due to their independence, there is no question of them being paid on a conditional or contingency fee basis. This is not to say there is no concern about the level of fees paid to experts. CPR rule 35.4(4) allows the court to limit the amount of the experts’
fees recoverable from the other party. I understand that few practitioners have experience of this provision being used. If the proposals for cost management set out in chapter 48 below find favour, then the provisions of CPR rule 35.4(4) may be brought into more extensive use.
7.5 Directions relating to expert evidence are usually given during the first case management conference. Section D of the Allocation Questionnaire should be completed if permission for expert evidence is required. Some query whether this is the right time for the use of expert evidence to be addressed. The Commercial Court has trialled an approach that delays permission for expert evidence until after the list of issues has been judicially settled. Others, particularly in personal injury and clinical negligence cases, argue that even the first CMC is too late to consider the need for expert evidence, as the claimant will by that stage already have obtained any expert evidence deemed necessary (and since most of these cases settle before trial, there are unlikely to be any adverse consequences for the claimant of having done so).
7.6 Single joint expert. This is an expert witness who is instructed by all of the parties in a case to give evidence on a particular issue or issues. The parties may agree to appoint a single joint expert or it may be directed by the court.57 CPR Part 35 and the accompanying practice direction deal extensively with the instruction and use
54 CPR rule 35.1.
55 CPR rule 35.4.
56 CPR rule 35.3 and Part 35 Practice Direction, paragraph 1.1.
57 CPR rule 35.7(1).
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of joint experts by the parties and the powers of the court to order their use. The use of joint experts is encouraged. A single joint expert is engaged and paid jointly by the parties, whether instructed jointly or separately. An agreed expert is paid for and instructed by one party, but all parties have agreed to the identity of that expert.
Where appointed, the single joint expert's report usually has a major impact on a case and can lead to early settlement.
7.7 Single joint experts are most commonly appointed in fast track cases, as the costs of two experts may be disproportionate. In small claims it is rare for permission to be given for any expert reports to be adduced, the proportionality argument being even stronger. A single joint expert will only usually be used in multi-track cases if the subject matter is either (a) not a central issue or (b) relatively uncontroversial. In other circumstances it is rare for a single joint expert to be appointed, particularly against the parties' wishes. However, some practitioners have noted a modest increase in the court's willingness to direct the use of single joint experts in lower value multi-track cases.
8. OVERVIEW OF THE PHASE 1 SUBMISSIONS
8.1 Expert evidence has been identified in the Phase 1 submissions as a substantial, and ever increasing, cost of litigation. All those who addressed expert evidence within their submissions were fairly critical, and many appeared to think that expert evidence is more of a costs burden than witness statements. However, the majority of submissions were silent on expert reports.
8.2 The criticisms made in the submissions were:
x A failure to identify the correct issues (presumably, this means on the part of the lawyers);
x The perceived difficulty for a judge to rule that a claimant cannot rely upon evidence obtained prior to the first CMC;
x An overwhelming failure to impose the use of a single joint expert;
x Delay caused by unrealistically short deadlines in the timetable;
x An inability to contact the opposing expert;
x Prevaricating tactics in relation to the experts' meeting;
x An inability for the parties to agree expediently an agenda for the experts' meeting;
x The expense of obtaining the attendance of an expert at trial (this will be looked at in chapter 44).
8.3 Recently, the LTWP has also raised concerns about the costs and relevance of the expert evidence brought before the court. To address those concerns they are encouraging:
x the court to give permission for expert evidence only after the list of issues have been finalised which includes a list of the issues that the experts should address;
x the sequential exchange of reports (so that both reports address the same issues and hopefully in the same order);
Chapter 42: Witness statements and expert reports x the meeting of experts to be held after exchange of reports but prior to the service
of any supplementary reports. A list of the issues upon which the experts agree and disagree should still be produced after the meeting;
x giving directions to limit the length of the reports (on the basis that this is in the interest of the parties and the court).
9. EXPERT COSTS INCURRED PRE-ISSUE
9.1 For some time the pre-action protocols relating to housing disrepair, disease and illness, clinical negligence and personal injury have contained guidance on the instruction of experts pre-issue. In all other proceedings the Practice Direction on Pre-Action Conduct (“PDPAC”) will now apply. It encourages the use of a single joint expert or an agreed expert.
9.2 I am told that in personal injury litigation pre-action liaison over selection of experts is often not working well. In industrial deafness cases even the scope of the required expertise may be contentious. The remedies for this problem appear to be twofold. First, the courts must investigate non-compliance with paragraph 2.14 of the Pre-action Protocol for Personal Injury Claims and impose sanctions for breaches: e.g. disallowing expert evidence or the costs of such evidence. Secondly, proper liaison over selection of experts must be a key part of the “new process” which is being developed for personal injury claims (see chapter 26).
9.3 The new PDPAC contains provisions requiring the parties to consider whether an expert needs appointing to help resolve their differences and, if so, points the parties towards agreeing an expert. If the parties do not agree that a single joint expert is appropriate, the party seeking the expert evidence should provide the opponent with a list of one or more experts in the relevant field of expertise whom the party would like to instruct. The other party then has 14 days to lodge a written objection to any or all of the experts listed. If there are any acceptable experts, one of these should be instructed. If not, the initiating party may instruct an expert of choice. The PDPAC makes clear that “both parties should bear in mind that if proceedings are started the court will consider whether a party has acted reasonably in instructing (or rejecting) an expert”.
9.4 It remains to be seen whether these provisions will have any impact on the way that litigation is conducted. The perceived reluctance of the court to impose sanctions for protocol breaches (discussed further in chapter 43) may mean that these changes are not effective in the short-term. Others note that even if the PDPAC is followed, permission of the court is still required to adduce the evidence at court.
If such permission is obtained but the instructing party subsequently wants to use a different expert at trial, not only may these initial costs have been wasted, but this initial report will still be disclosable.
10. WHEN SHOULD EXPERT REPORTS BE OBTAINED?
10.1 There are various alternatives being mooted about the most appropriate time for the court to consider giving permission for the use of expert evidence. Currently, in most cases, the position is that the court will give directions at the first CMC.
10.2 The LTWP think it is better to postpone the granting of permission for expert evidence until after disclosure and, potentially, exchange of witness statements.
Chapter 42: Witness statements and expert reports
Their reasoning is that this allows the issues to be more clearly identified and narrowed and therefore the experts need only be instructed on issues that will really be in dispute.
10.3 The TCC Guide suggests that the court should be provided with estimates of the experts' costs before providing permission.58 It also suggests that the parties should, prior to the CMC and at any other pre-trial stage, give consideration to any appropriate or necessary test, inspections, sampling or investigates that could be undertaken jointly or in collaboration with other experts. Any such measure should be preceded by a meeting of the relevant experts at which an appropriate testing or other protocol is devised.59 These rules would seem to be an embodiment of Lord Woolf's suggestion that the experts should be encouraged to communicate at the earliest possible stage.60 However, in practice, it seems that the courts (all courts, not just the TCC) rarely encourage such collaboration.
10.4 In discussions with my judicial assistant, some defendant practitioners have criticised claimant solicitors for having obtained expert reports (in some cases, several reports) before the defendant has been informed of the claim. If an expert report has been obtained on a particular issue which is admitted by the defendant at the first opportunity, upon any settlement the defendant will still end up paying the costs of that report even though there was no need for the report to have been procured.
10.5 In the right circumstances, an early expert report can be the key to the parties reaching a settlement. However, in other cases premature instruction of experts may lead to wastage of costs. One issue, upon which I should welcome comment and debate during Phase 2, concerns the timing of instructing experts. In particular, could the cost rules be recast in a manner which would (a) encourage parties to co-operate in relation to appointing experts and (b) encourage the appointment of experts at an appropriate time?
11. THE EXPERT REPORT
11.1 Irrelevant content. A problem identified by Lord Woolf was the inclusion of irrelevant material in the expert report. The submissions received during the Phase 1 indicate that this is still a problem. Several suggest that the tendency for an expert to set out the facts of the case at the start of their report simply adds to costs without achieving anything. My judicial assistant has subsequently raised this point with a number of commercial practitioners, who have commented that such background is required to ensure that it is clear to the court and the other party that the expert has based his report on the correct facts and underlying assumptions. Some may not find this argument compelling.
11.2 Written questions. CPR rule 35.6 provides that a party may put written questions to an expert instructed by another. Unless permission is given (by the other party or the court), the questions must only be aimed at clarifying the report and they may only be asked once. The expenses of this exercise are initially borne by the instructing party, but this does not affect any decision by the court about which party ultimately bears the expert's costs. The responses will be treated as part of the expert's report. If any question is left unanswered the court may order that the evidence cannot be relied upon and/or the fees and expenses of that expert will be
58 TCC Guide paragraph 13.2.2.
59 TCC Guide paragraph 13.3.4.
60 Lord Woolf's Final Report, chapter 13, page 48.
Chapter 42: Witness statements and expert reports irrecoverable from the other party. As far as I am aware, this process works
satisfactorily61 and is cost effective.
11.3 Timetabling. Several submissions mentioned that insufficient time is being built into the litigation timetable for expert evidence to be compiled properly. I should be interested to hear whether this is the experience of most court users.
12. THE EXPERTS' MEETING AND JOINT REPORT
12.1 Experts' meetings. These were introduced by Lord Woolf as a means of encouraging the experts to narrow the issues between them and to eliminate the peripheral issues. He suggested the agenda should be set by the court.62 In practice it seems that the parties are usually left to agree the agenda themselves.
12.2 The purpose of the discussions at the experts’ meeting should be, wherever possible, to:
(i) identify and discuss the expert issues in the proceedings;
(ii) reach agreed opinions on those issues, and, if that is not possible, to narrow the issues in the case;
(iii) identify those issues on which they agree and disagree and summarise their reasons for disagreement on any issue; and
(iv) identify what action, if any, may be taken to resolve any of the outstanding issues between the parties.63
12.3 There is little comment in the submissions as to whether the experts’
meetings usually achieve these aims. My own experience as a “consumer” of expert evidence is that expert meetings have been extremely effective in narrowing technical or expert issues.64 I can recall cases where hours, or even days, of court time have been saved as a result of constructive discussion and agreement at expert meetings.
My judicial assistant has spoken to a number of solicitors and counsel about the effectiveness of expert meetings and has received mixed responses. Even those who thought that they can be useful commented that it may require a series of meetings, rather than a single meeting, for issues to be narrowed down. This obviously adds to the costs of the exercise.
12.4 In the discussions with my judicial assistant it was also mentioned that experts are busy people with competing interests. They may live abroad. Despite the solicitors’ best efforts, it can be quite difficult to pin all of the experts down so that a meeting can be held. This can cause delays to the timetable. The logistics of holding the meeting can also prove to be expensive, if video conferencing needs to be set up or attendees flown in from abroad.
61 In a recent report (7/12/2007) the Experts Committee of the CJC expressed the view that CPR rule 35.6 struck the right balance.
62 Lord Woolf's Final report, chapter 13, paragraph 45.
63 As set out in paragraph 18.3 of the CJC's “Protocol for the Instruction of Experts to give evidence in civil claims”, June 2005.
64 I note that the Experts Committee of the CJC regards experts meetings as generally satisfactory, although they will be proposing a more prescriptive procedure for setting the agenda for such meetings.
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12.5 The LTWP has recommended that expert meetings should be retained. In patent litigation, on the other hand, I understand that it is rare for expert meetings to be held.
12.6 Subject to any comments which may be made during Phase 2, it seems to me that the costs involved in expert meetings are worthwhile. However, there may be categories of case (e.g. complex international disputes) where such meetings may be dispensed with, leaving the experts to liaise as appropriate by telephone or email.
13. SCHEMES FOR CONSIDERATION IN FAST TRACK RTA, EL, AND PL CASES 13.1 The greatest concerns were raised in relation to the costs associated with expert reports in fairly straightforward road traffic accident (“RTA”), employer’s liability (“EL”) and public liability (“PL”) cases. I understand that the costs incurred on the reports can be up to or more than the amount being claimed in damages. A number of suggestions have been made during Phase 1, which are aimed at reducing those costs. Two of the suggestions were as follows:
(i) One suggestion was the use of accredited experts. If only experts who are known to provide truly impartial (rather than claimant or defendant sympathetic) opinions are accredited, this would enable the more straightforward cases to be resolved with only one expert report having been obtained.
(ii) A proposal set out by a clinical defence organisation in its submission was:
“We would welcome consideration of a scheme whereby single experts, jointly instructed, but paid for by defendants, binding defendants but not claimants, might be appropriate for claims identified as low value (to be defined) by both parties from inception. Whether claimant lawyers were paid fixed or variable fees, only on success or otherwise, could all be considerations but claimants could be guaranteed a decision, with explanations, the determining evidence, and an offer, if appropriate, without any financial risk or detriment to their option to
“We would welcome consideration of a scheme whereby single experts, jointly instructed, but paid for by defendants, binding defendants but not claimants, might be appropriate for claims identified as low value (to be defined) by both parties from inception. Whether claimant lawyers were paid fixed or variable fees, only on success or otherwise, could all be considerations but claimants could be guaranteed a decision, with explanations, the determining evidence, and an offer, if appropriate, without any financial risk or detriment to their option to