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Introduction
The aim of this talk is to review the first 9
months' experience of the new Civil Procedure Rules relating to
expert witnesses.
Before the new rules came into effect fears were
expressed that the Courts would impose single joint experts even in
cases where both parties considered that the case was not suitable
for the appointment of a single joint expert. It was also feared
that instead of trial by Judge, we would move towards a system of
trial by expert. Have these fears proved justified? How have the new
Rules been working in practice? Is it too soon to form a provisional
view on whether on balance the reforms relating to expert witnesses
have been beneficial?
I am going to assume that you are aware in general
terms of the reforms which have been introduced, and will discuss
points which may arise when experts are instructed under the new
Rules.
I should mention that of course there can be no
universal practice which all Judges will apply to every case.
Different judges may decide things differently. But all the Judges
are required to have in mind the same overriding objective (CPR 1.1), so in principle the practice should not
differ dramatically from one case to the next.
The main points I am going to cover are as follows:
what cases are suitable for the appointment of a single expert
practical problems which can occur when a single joint expert
is appointed
where separate experts are appointed, the differences between
an expert's report prepared under the old rules and a report
prepared under the new rules
the extent to which an expert witness is immune from legal
proceedings
whether on balance the reforms have been beneficial.
In the course of this talk I will be referring to
the draft Code of Guidance for Experts which has been
prepared by the Working Party under the chairmanship of Sir Louis
Blom-Cooper QC (this can be seen on the Internet at
http://www.open.gov.uk/lcd/civil/procrules_fin/expwitfr.htm). A
revised draft of this Code is currently with Sir Richard Scott,
Vice-Chancellor, and Lord Woolf before being presented to the Civil
Justice Council. In due course the Code will become a Practice Direction.
Is a case suitable for the appointment of a
single joint expert?
The first question the Court will consider is
whether the case requires expert evidence at all. If not, permission
to rely on expert evidence will not be granted.
Assuming expert evidence is required, how is the
question of whether there should be a single expert or separate
experts to be approached?
This is how the matter is dealt with at paragraphs
H2.4-2.6 of the Commercial Court Guide:
"..... cases in the Commercial Court frequently
are of a size and of a complexity or nature such that the use of
single joint experts is not appropriate. In such cases, parties
will generally be given permission each to call one expert whom
they have retained in each field requiring expert evidence. In
this Guide these experts are called "separate experts". On
occasion there will be questions about appropriate fields of
expertise, and the Court will have to resolve such questions.
....There is, however, no presumption in the Commercial Court in
favour of single joint experts.. And where in an appropriate case
the parties wish to instruct separate experts a direction in
favour of a single joint expert may possibly be infrequently made.
In some cases the appointment of a single joint expert to carry
out an examination at the very beginning of a case may be
appropriate. But even here the Commercial Court recognises that
the use of separate experts may bring greater advantage, not least
in providing the facility for each party to take separate expert
advice. However in such a case whenever possible joint inspections
by both experts are to be encouraged. .... Occasionally in a
complex commercial case where a meeting of separate experts is
likely to involve unusual difficulties or complexities the use of
a single joint expert may be combined with the use of (separate)
experts retained by the parties. Here the function of the single
joint expert might be, not to report or give evidence, but to
chair and facilitate meetings of separate experts."
The Chancery Guide (at paragraph 6.11) quotes what
Lord Woolf wrote in his Final Report, Access to Justice:
"I do not think it would be appropriate to
specify particular areas of litigation where a single expert
should or should not be used. There are in all areas some large,
complex and strongly contested cases where the full adversarial
system, including oral cross-examination of opposing experts on
particular issues, is the best way of producing a just result.
That will apply particularly to issues on which there are several
tenable schools of thought, or where the boundaries of knowledge
are being extended. It does not, however, apply to all cases. As a
general principle, I believe that single experts should be used
wherever the case (or the issues) is concerned with a
substantially established area of knowledge and where it is not
necessary for the Court directly to sample a range of opinions.
The expert's duty to the Court will require him to set out in his
report his view of the range of possible opinions. Too often under
the present regime the experts are in fact agreed upon the range
of opinion, but their reports only set out the extreme positions."
There is no equivalent Guide for the Technology and
Construction Court ("TCC"). But what Judge Humphrey Lloyd QC said at
the SCL talk in London in June 1999 was similar to the approach of
the Commercial Court. According to the published notes he said this:
"the prospects for a single joint expert in the TCC are not high".
The Editors' notes to the White Book (35.7.1) make
the point that there is no presumption either way as to whether a
single expert should be appointed.
The actual experience in the TCC since April 1999
has been rather different from what had been expected a year ago.
What has in fact happened is that there has been a greater than
expected willingness on the part of the parties in TCC cases to
propose the appointment of a single joint expert themselves. This is
what Judge Bowsher QC said at a meeting of TECBAR on 8 December
1999:
"... since the CPR came into force, I and my
colleagues and many Court Users have been struck by the
willingness of solicitors to propose the appointment of a single
expert in suitable cases, and by the willingness of opponents to
accede to such proposals."
On the other hand, as was expected, Judges are
willing to accept that the appointment of a single joint expert is
not suitable in cases where there is a crucial, complex,
hotly-contested issue, with a range of possible opinions. As Judge
Bowsher QC put it: "Where there is a conflict of principle, justice
usually requires that each party should be able to call an
independent expert." For example, one can imagine that defendants in
professional negligence cases might very well prefer there to be
separate experts, so that they have their own expert who can,
provided that he is giving his honest, independent view, set out
clearly the case for saying that there has been no breach of
professional duty.
In an article in the Construction Law Journal
(1999) 15 CLJ 335, Dyson J suggested that a single joint expert may
be suitable in the following types of case:
where the sums at stake in the litigation are small in
relation to the costs likely to be incurred
where the expertise consists of personal judgment or "feel"
derived from experience (such as valuation evidence)
where the evidence which the Court needs to have explained is
relatively uncontroversial, or
where the issue is relatively peripheral to the case.
Other examples would be issues of quantification of
loss (e.g. variations, loss and expense claims) and dilapidations
cases.
In some cases it may be appropriate for the more
controversial issues to be dealt with by separate experts and the
less controversial issues to be dealt with by a single joint expert.
It is not necessarily a sufficient objection to the
appointment of a single expert that the parties have already
instructed separate experts (Chancery Guide 6.13).
Paragraph 5 of the Practice Direction provides that where the court
has directed that the evidence on a particular issue is to be given
by one expert only but there are a number of disciplines relevant to
that issue, a leading expert in the dominant discipline should be
identified as the single expert. He should prepare the general part
of the report and be responsible for annexing or incorporating the
contents of any reports from experts in other disciplines.
Cases where a single joint expert is
appointed
Experience in the last 9 months has shown that
there are number of respects in which practical difficulties can
occur, and can lead to complications which would be unlikely to
occur if separate experts were appointed:
difficulties in selecting the single expert
securing a commitment to meet the single expert's fees
difficulties agreeing the scope of the report
problems in obtaining information required in order to enable
the single expert to report
difficulties in arranging site visits or tests
communications with the parties
representations made by the parties to the single expert.
a) Selecting the single expert
There can be delays and protracted correspondence
if the parties cannot agree on the identity of the single expert.
This is particularly the problem if the field of expertise is a
narrow one, and a number of the potential experts have a conflict of
interest.
It may be easier for parties to agree on the
identity of the single expert before litigation has started and
before one party has already instructed its own expert. If
necessary, the Court can be asked to select one name from a
short-list of three, or a professional body can be asked to nominate
the single expert.
The Editors' notes in the White Book (35.7.1) refer
to the possibility of the expert already appointed by one party
being appointed as single joint expert. It may be rare for this
course to be taken, but if it is taken there are some practical
points to consider:
The party which originally instructed the expert may wish to
protect itself (as far as possible) against the risk of past
communications with the expert ceasing to be covered by legal
professional privilege.
That party might want to ask for a contribution to the fees
incurred for work already carried out.
That party might want continued access to other
members of the experts firm for advice in relation to the
litigation, if satisfactory information barriers can be established,
to avoid confidential information reaching the single joint expert.
b) Remuneration
Unless the Court otherwise directs, both parties
are liable for the single expert's fees and expenses (CPR 35.8(5)). This is of course subject to any
order for costs which may be made at the conclusion of the case. But
the single expert will be well-advised to make express arrangements
in relation to the method of charging and manner of payment. This is
particularly so where there is a possibility that part of his work
may be considered to fall outside the issues directed by the Court
to be referred to him.
The expert should ensure that he has a letter of
appointment which covers the matters set out in paragraph 3 of the
draft Code of Guidance.
c) The scope of the single expert's report
It is most desirable that the questions to be
referred to the single expert are agreed by the parties (Commercial Court Guide H2.8, draft Code of Guidance 26(a)), and of course there
is a requirement that the parties must help the Court to further the
overriding objectives (CPR 1.3). However delays can occur while the
parties try to reach agreement on the questions. CPR 35.8(1) makes clear that each instructing
party may give instructions to the expert, so it may be possible to
proceed with two lists of questions instead of an agreed list. It is
of course necessary that each party should send to the other party a
copy of its own instructions to the single expert.
The questions should where possible be closed
questions, requiring a clear answer one way or another. If a
question is not sufficiently precise, there is the possibility that
the expert will give an inconclusive answer.
d) Obtaining necessary information
Parties instructing a single joint expert may not
have as much incentive to supply the necessary information to the
expert, and this can lead to delays, causing problems where the
timetable is short.
In cases of serious delay or stubbornness, an order
for the information to be supplied can be sought under CPR 35.9, which confers on the Court power to
direct a party to provide to the other party information which is
not reasonably accessible to the latter.
e) Site visits, tests
One party may drag its feet in arranging a date and
time for a joint site visit or test.
f) Lines of communication
The expert should take care to be fair to both
sides and to be seen to be fair to both sides. In general it is
desirable that communications should be in writing, so they can be
copied to other parties. But face-to-face meetings with one party
may be necessary, e.g. if the expert needs to obtain detailed
information or carry out tests.
The parties' legal advisers need to consider
beforehand whether they are happy for a meeting to take place with
only one party present. They won't want to learn about such
discussions after they have happened. If arrangements have to be
made over the telephone to set things up, that could be an occasion
when discussions take place in the absence of the other party.
It is possible for a single expert to attend a
conference with counsel, but the other party should be given the
opportunity to attend that part of the conference.
Confidential discussions between a single expert
and a party are not practical, as the single expert must be free to
tell the Court about all his dealings with the parties. For this
reason, it may not be appropriate for the single expert to try to
act as a neutral mediator.
g) Making representations to the single
expert
If a party wishes to ensure that the single expert
has full details of all the arguments available to support its case,
it is desirable that this information should be provided to the
expert before he has reported. Once he has made up his mind and
communicated his opinion to the parties, he is less likely to be
receptive to such representations.
In many cases all that is required is a short
letter of instructions, but protracted correspondence could occur if
the parties find it necessary to prepare responses, or even
counter-responses, to the other side's representations.
The parties may want to instruct their own experts
to assist with this exercise if they do not have the necessary
expertise in-house, but the costs of doing so may not be recoverable
from the losing party. Where they do instruct additional experts of
their own, it will still often be the case that overall costs are
lower than they would have been if there had been separate experts
instead of a single expert: if as a result of the single expert's
report the trial can take place without any experts attending and
giving oral evidence, the trial itself should be shorter and less
costly.
Other points
It is not necessary for a single expert to send the
parties a draft of his report before finalising it. But in an
appropriate case he may wish to send to the parties for their
comments the non-contentious first part of his report, dealing with
the facts, the assumptions he is making, and the questions he is
going to answer.
Once the parties receive the report, what can they
do if they consider it to be unsatisfactory? They may find it to be
inconclusive and requiring clarification, or they may consider that
it is wrong on an important point.
In the first instance, the parties should send
their comments to the single expert for him to consider, using the
procedure for written questions in CPR 35.6.
If this does not deal sufficiently with the point,
the Court must in my view have a discretion to give further
directions. It would not accord with the overriding objective that
cases must be dealt with fairly and justly that a party should be
unable to take any steps at all to put right a genuine error in the
report of a single joint expert. The dispute remains a dispute to be
tried by a Court, and not by a single expert. The Court might direct
that the single expert should attend the trial for
cross-examination. Traditionally, the normal rule would be that a
party can only cross-examine a witness called by the other party,
but this may have to change in order for the new system to operate
fairly - Lord Woolf considered that cross-examination of the single
expert might be possible (Final Report 13.17); the editors of Phipson on
Evidence (15th Edn), paragraph 37-39, agree. Alternatively, the
Court might give the parties permission to call expert evidence from
separate expert witnesses. CPR 3.1(7) gives the Court power to revoke
previous orders, and the Editors' notes to the White Book refer to
this power in the context of a single expert's report (35.7.1). If
there is a real risk that the cross-examination would show that the
single expert's evidence was unreliable, giving permission prior to
the trial to call other expert evidence may be preferable to having
to adjourn the trial so that further expert evidence may be
obtained.
If the Court considers that a party has wrongly
asserted that the single expert has wrong, it may decide to apply a
sanction in costs.
Cases where separate experts are appointed
It has always been necessary to consider whether
the proposed expert witness is in a position to give evidence which
is seen to be independent and objective. This is all the more so
now, in view of the requirement that the expert must confirm that he
has complied with his overriding duty to the Court. For this reason,
a claims consultant who has already participated in negotiations
with the other party might not be a suitable person.
It is important that the expert is sent a clear
letter of instructions, so that there is no doubt about what he is
being asked to do, and so that a copy may be disclosed to the other
party if this is required. Under CPR 35.10(3) the expert is required to set out the
substance of all material instructions, whether written or oral, on
the basis of which the report was written. In General
Mediterranean Holdings S.A. v Patel [1999] 3 All ER 673, Toulson
J. held that CPR 48.7(3), requiring disclosure of privileged
material in connection with applications for wasted costs orders,
was outside the rule-making power contained in the Civil Procedure
Act. He considered that the position in respect of CPR 35.10 was
different, and that 35.10 could not be attacked in this way, but his
views on this point may be challenged in a future case.
There have been fears that the requirement to
disclose instructions to experts may mean that legal professional
privilege no longer applies to any communications with the
expert. However the abolition of all privilege in respect of
communications with expert witnesses was a provisional
recommendation in Lord Woolf's Interim Report which he withdrew in
his Final Report (paragraphs 13.31-33).
Nonetheless, in cases where the proposed expert has
already given advice to the party instructing him before he is asked
to provide an expert's report, consideration should be given to the
possibility that in compliance with his overriding duty to the Court
he may be required to disclose that advice, particularly if it is
inconsistent with his report. The decision to deploy the expert's
report in evidence might arguably be a waiver of the legal privilege
which would otherwise apply to such advice (cf General
Mediterranean Holdings S.A. v Patel [1999] 3 All ER 673, at page
694a-c).
In order to avoid risks relating to disclosure of
instructions and advice, in some cases a party may wish to appoint
two experts, one to prepare the expert's report and to remain at
arms' length from the party and its legal advisers, and the other to
give advice on the merits of the case and to provide input on what
should go into the expert's report.
There is no inflexible requirement that an expert
cannot be an employee of one of the parties (Field v. Leeds City Council, The Times 18
January 2000). In a relatively small case there may be significant
cost savings if the parties can use their in-house personnel rather
than outside professionals. The Court may however need to be
satisfied that the proposed experts have a sufficient understanding
of their duty to the Court.
Just as in cases where a single expert is
appointed, it is desirable to agree the questions for the experts
with the other side. That can achieve significant saving of costs.
It may help to avoid reports which address different issues, so that
a further round of reports is required. It may avoid the need for
supplementary questions under CPR 35.6.
Where one party has access to information which is
not reasonably accessible to the other party, the latter may apply
for an order for disclosure under CPR 35.9.
As under the old Rules, the Court has power to
order that experts' reports should be served sequentially rather
than simultaneously. This may save costs where the nature of the
claimant's case is not spelt out in detail in its Particulars of
Claim.
The contents of experts' reports
There are detailed provisions on this in CPR 35.10, paragraph 1 of the Practice Direction and paragraphs 10-15 of the draft Code of Guidance. I am not going to list all
these points, but will draw attention to the following:
The expert must confirm that he understands his duty to the
Court and has complied with it (CPR 35.10(2)).
The report must be addressed to the Court (PD 1.1).
The report must be verified by a statement of truth in the
form "I believe that the facts I have stated in this report are
true and that the opinions I have expressed are correct." (PD 1.4).
Where there is a range of opinion on the matters dealt with in
the report he must summarise the range of opinion (PD 1.2(5)).
An expert witness should state the facts or assumptions upon
which his opinion is based, and if a stated assumption is, in the
opinion of the expert witness, unreasonable or unlikely he should
state that clearly (Commercial Court Guide H2.12).
An expert witness must express any qualification of, or
reservation to, his opinion (draft Code of Guidance 12(b)).
An expert witness must not be asked to, and must not amend,
expand or alter any part of the report in a manner which distorts
the experts' true opinion (draft Code of Guidance 12(d)).
An expert witness may be invited to amend, or expand a report
to ensure accuracy and internal consistency, completeness and
clarity (draft Code of Guidance 12(e)).
It has always been a requirement that the expert
should express his own independent views (Cala Homes v. Alfred
McAlpine Homes [1995] FSR 818, 841-844, The Ikarian Reefer
[1993] 2 Lloyd's Rep. 68, 81). The new Rules express this more
powerfully, and in a manner designed to inhibit parties from putting
pressure on their experts, and to assist the expert in resisting
such pressure if pressure is applied.
Where an expert fails to express his own
independent view there are the following risks:
points may have to be conceded, either in discussions between
experts or in cross-examination
evidence which would have been accepted if it had been
expressed more cautiously may be rejected
an over-stated opinion on a minor point may damage credibility
on a major point
if a judgment criticising an expert is publicised, the
expert's reputation may suffer, and his prospects of being
instructed, and believed, in future cases may be damaged
if he gives over-optimistic advice, that may prevent a
sensible settlement being reached and there is a risk that he will
be sued for negligence (see below).
There has been one reported case since April 1999
in which an expert was considered to have failed in his duty to act
impartially. In Stevens v. Gullis [1999] BLR 394, the Court of
Appeal upheld an order debarring the defendant from calling his
expert witness where the report did not comply with the requirements
of the Practice Direction and the expert had refused to
sign a joint memorandum of the points agreed at the meeting between
experts.
The requirement to be independent means that it is
not appropriate for an expert witness to be instructed on a
conditional fee basis (paragraph 4 of draft Code of Guidance, Guidance from Judicial Committee of the Academy of
Experts at http://www.academy-experts.org/contingency.htm, Guide
to the Professional Conduct of Solicitors section 20.11). If an
expert were to be appointed on this basis, that could affect the
weight to be given to his evidence (Sesa Goa v. A/S Bulk of
Slimna, Coleman J 3 December 1997, [1999] NLJ 1760).
If an expert witness changes his mind after his
report has been exchanged, he must tell those instructing him and
ensure that the other side and, if appropriate the Court, are
informed (The Ikarian Reefer).
Written questions
Under CPR 35.6 an expert must answer written questions
about his report, provided that
written questions may be put once only,
must be put within 28 days of service of the report, and
must be for clarification only, unless the Court gives
permission or the other party agrees.
It is not difficult to anticipate that parties may
try to stretch the scope of the word "clarification". The Commercial Court Guide has this to say (paragraph
H2.28):
"The Commercial Court will pay close attention to
the use of this procedure (especially where separate experts are
instructed) to ensure that it remains an instrument for the helpful
exchange of information. The Court will not allow it to interfere
with the procedure for an exchange of professional opinion at a
meeting of experts, or to inhibit that exchange of professional
opinion. In cases where (for example) questions that are oppressive
in number or content are put, or questions are put (without
permission) for any purpose other than clarification of an expert's
report, the Court will not hesitate to disallow the questions and to
make an appropriate order for costs against the party putting the
questions."
If the expert fails to answer these questions, the
party instructing him may be barred from relying on his evidence,
and may fail to recover the fees and expenses of that expert from
other parties.
Pending the order for costs at the conclusion of
the case the cost of answering the questions is to be met by the
party by whom the expert was appointed (Practice Direction 4.3).
This procedure is especially useful in fast-track
cases where there is usually no cross-examination of expert
witnesses, but it is narrower in scope than a right to conduct a
written cross-examination of the opposing expert.
Applying for directions
Under CPR 35.14 an expert witness may apply to the Court
for directions. It is perhaps more likely that a single expert may
want to take this course. This may be appropriate where
he needs more time
he needs more information
he considers that he has been given inappropriate instructions
he considers that improper pressure is being put on him.
The Commercial Court Guide (paragraph H2.17) warns
against the risk of an expert accidentally informing the Court
about, or about matters connected with, communications or potential
communications between the parties which are without prejudice or
privileged. The expert may properly be privy to the content of these
communications because he has been asked to assist the party
instructing him to evaluate them.
Expert's discussions
CPR 35.12 provides as follows:
"(1) The court may, at any stage, direct a
discussion between experts for the purpose of requiring the
experts to --
(a) identify the issues in the proceedings; and
(b) where possible, reach agreement on an issue.
(2) The court may specify the issues which the
experts must discuss.
(3) The court may direct that following a
discussion between the experts they must prepare a statement for
the court showing --
(a) those issues on which they agree; and
(b) those issues on which they disagree and a
summary of their reasons for disagreeing.
(4) The content of the discussion between the
experts shall not be referred to at the trial unless the parties
agree.
(5) Where experts reach agreement on an issue
during their discussions, the agreement shall not bind the parties
unless the parties expressly agree to be bound by the agreement."
It is usual in the TCC for orders under (1) and (3)
to be made, with a direction that discussions should take place
before reports are exchanged. The purpose is to narrow the issues,
with a view to shortening the trial. The purpose is not to confer on
the experts authority to conduct settlement negotiations binding on
the parties. It is usually better if lawyers are not present (draft Code of Guidance 20), as it may inhibit free
discussion, but there is no rule against the presence of lawyers or
parties.
The legal advisers may not tell the expert that he
cannot reach agreements without the approval of those instructing
him (Robin Ellis Ltd v. Malwright Ltd [1999] BLR 81, (1999)
15 Const L J 141, draft Code of Guidance paragraph 22). If a party
does not agree with a concession made by his expert he faces a
difficulty. In practice, once such a concession has been made, the
party is usually faced with the choice of accepting the views of the
expert or applying to the Court for permission to instruct a new
expert (Stanton v. Callaghan [1999] 2 WLR 745, 755); the
court may not show much sympathy. There could however be cases where
it is possible to rebut expert opinion with first-hand evidence of
fact (e.g. as to the date a tree was planted, per Judge Bowsher QC
in Ellis v. Malwright at (1999) 15 Const L J 150). There
could be a costs sanction where the refusal of a party to accept the
views of his expert lengthens the trial (White Book 35.12.1).
If one side's expert is pleased with the level of
agreement which has been reached, he should aim to get the joint
statement signed at the meeting itself (to avoid the risk of changes
of mind). If on the other hand he has had to make concessions, he
may want to ask for time to reflect on how the concessions should be
expressed.
It may be necessary for more than one meeting to
take place. In Robin Ellis Ltd v. Malwright Ltd there were 17
meetings, and also telephone conversations and correspondence.
Discussions between experts are dealt with at
paragraphs 18-22 of the draft Code of Guidance, including guidance on
circulation of agendas.
Immunity of expert witnesses
The question of immunity of expert witnesses was
considered by the Court of Appeal in detail in the case of
Stanton v Brian Callaghan [1999] 2 WLR 745, [1999] BLR 172,
(1998) 62 CLR 1. In that case the plaintiff's expert agreed at the
experts' meeting that a less expensive remedial scheme was
appropriate. The plaintiff alleged that in reaching this agreement
the expert acted negligently. The Court of Appeal struck out the
claim on the ground that public policy required that expert
witnesses should be able to reach agreement at meetings between
experts without fear of being sued for negligence, and that the
expert witness was immune from such a claim. The Court of Appeal
drew a distinction between the activities of giving advice on the
merits of a claim at the outset of a case on the one hand, and
providing an expert's report at a later stage on the other hand. The
case may however leave scope for an argument that an expert witness
acted negligently in giving over-optimistic advice at the outset of
the case, at the time when he was doing no more than giving advice
as to the merits of a proposed claim.
The trial
Unless the Court orders otherwise, the expert
evidence is given in a written report (CPR 35.5(1)), and the expert need not attend the
trial. In the TCC it is usual for the Court to give permission for
the experts to give oral evidence, unless the parties agree that
this is not necessary. In fast-track cases the experts do not attend
the trial unless the Court decides that it is necessary for them to
do so in the interests of justice.
It is conceivable that a party who has been given
permission for an expert to give oral evidence may decide to rely on
the written report without calling the expert as a witness at the
trial. The Rules do not expressly confer on the other party a right
to cross-examine, but it is likely that the Court would take account
of a refusal to tender the expert for cross-examination in assessing
the weight o give to the expert's evidence.
Assessors
CPR 35.15 contains a power for the Court to
appoint assessors.
The role of an assessor is to assist the Court
rather than to provide expert evidence. Although the parties will
see a copy of the assessor's report if the Court obtains such a
report, they will not have the opportunity to question the assessor
at the trial (Practice Direction 6.4).
Paragraph 33 of the draft Code of Guidance states that the assessor
may be questioned under CPR 35.6. This seems inconsistent with paragraph
6.4 of the Practice Direction, which states that the assessor
may not be cross-examined or questioned. CPR 35.6 refers expressly
to single experts but not to assessors.
Conclusions
It is generally considered that the new Rules have
done much to enable experts to fulfil their proper role as impartial
experts, as opposed to advocates hired by their respective clients.
The expert is less likely to be pressurised to write a favourable
report, and if he is pressurised it is easier for him to resist that
pressure.
Single joint experts are being used more widely
than expected, generally with the agreement of parties, but there
can in practice be complications in following this course.
Timetables under the new Rules are likely to be
shorter, though the parties can still apply for extensions of time.
Have the reforms been beneficial? It appears that
the new system does work well in most cases, but in the few cases
where complications occur the new system may turn out to be more
expensive. The most important benefits are the greater stress on
objectivity and the cost savings in cases suitable for the
appointment of a single expert.
Clive Freedman, Barrister
3 Verulam Buildings,
London
1 February 2000
© Clive Freedman, February 2000
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