New Guidance from Civil Justice Council – Instructing Expert Witnesses

  • Litigation

Since 1 December 2014, new guidance on the instruction of experts in civil claims has been implemented.  The new guidance highlights the existing requirements concerning expert duties under CPR 35 and PD 35 and reinforces the underlying requirement of independence.

The new guidance reflects the Jackson reforms which were introduced in April 2013. The full guidance can be located here but several key provisions are outlined below:

The new document titled “Guidance for the Instruction of Experts in Civil Claims 2014” replaces the “Protocol for the Instruction of Experts to give Evidence in Civil Claims” which was annexed to PD 35. The new Guidance is now included by way of a website address at paragraph 1 of PD 35.

The new guidance highlights that the terms of an expert’s appointment should include a provision that the court has the power to limit the costs paid towards the expert’s fees and expenses. Although, where a party appoints their own expert in addition to a single joint expert, the new Guidance explains that the cost of such an expert will not be recoverable from another party.

An expert’s report must contain a statement that he or she is aware of and has complied with the requirements of CPR 35, PD 35 and the new guidance.

Before filing and serving an expert report, parties are now required to check that any witness statements and other expert reports relied upon by the expert are the final served versions.

In accordance with the principles of independence and objectivity, 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.  However, once an experts’ Without Prejudice meeting has been held, it is permissible for an expert to change their mind and later amend their report.

The new guidance features the court’s power to order “hot-tubbing” which has been effective since April 2013. “Hot-tubbing” is a method of giving evidence when experts of like disciplines give evidence at trial simultaneously, rather than sequentially, and the court chairs a discussion between them.

Experts should be aware that sanctions might apply for non-compliance with CPR 35 and PD 35. In more extreme cases, an expert could face contempt of court leading to a fine or imprisonment.