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Expert Witnesses at Conferences with Counsel: A Practical Guide
- Apr 5, 2024
- Latest Journal
The starting point is the Guidance for the instruction of experts in civil claims by the Civil Justice Council. The purpose of this Guidance is to assist experts, litigants and those instructing experts to understand best practice in complying with Part 35 of the Civil Procedure Rules (CPR) and court orders.
Counsel should ensure compliance with this Guidance, but experts should also read them to ensure that they are aware of the provisions that impact them.
Let’s look at the basics.
What is a conference with counsel?
A conference (sometimes referred to as a ‘’Con’’) simply means a meeting (in person or remotely) with the barrister who has been instructed by a solicitor to advise on or be the advocate in a case. There may be two barristers if the case warrants this, a KC who will advocate at the hearing and a Junior Counsel or just a Junior Counsel. The solicitor conducting the case will be there and sometimes assistants and trainees.
What is the purpose of a conference with counsel?
Under CPR 35.1, those intending to instruct experts to give or prepare evidence for the purpose of civil proceedings, should consider whether expert evidence “...is required to resolve the proceedings”. One of the first questions that counsel will consider is whether an expert is needed. The determining factor is whether the court will need the explanation/ opinion of an expert on the issues of a case to enable them to make an informed judgment.
While the court’s permission is not generally required prior to the instruction of an expert, it is, required before an expert’s report can be relied upon or before an expert can be called to give oral evidence (CPR 35.4).
Counsel will consider whether the right expert has been instructed for the case. This will involve ensuring that the instructing solicitor(s) have conducted proper due diligence in the selection of the expert. Remember that the instruction of an expert is issue specific and therefore, they need to have the right qualifications and experience for the issue(s) in dispute. Instructing an unsuitable or unqualified expert can have potentially detrimental consequences for a case – see the recent case of Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2161 (Pat).
Counsel will examine the qualifications and experience of an expert, considering their field and knowledge as well as the skills they possess for the role (i.e. writing a court compliant report, giving oral evidence, dealing with cross examination, and having a good working knowledge of the relevant law and procedure). Undertaking regular expert witness training will provide reassurance to instructing solicitors, particularly as many cases settle before trial. While an expert may have written many reports, they may not have reached the point of giving evidence in a courtroom. The way an expert handles questions at the conference will also help counsel form a view of their performance at trial.
Counsel should make sure the expert is up-to-date in their practice and be wary of retired experts or those with limited experience.
Before the conference ends, counsel must ensure they understand the expert evidence. This will assist them in preparing cross-examination of the other side’s expert and will also give the instructing solicitor(s) a better insight into whether the matter is likely to settle before or during trial. In addition, if counsel understands the technical issues, then it is likely that a judge will as well.
When does a conference take place?
There are several phases during the litigation process where a conference with counsel may take place. Please note that conferences will need to pass the tests of being reasonable and proportionate (see section below on 'Getting paid for the conference').
The following are phases in the litigation process where conferences might take place:
- Pre-action: looking at the merits of the claim and advising the client, in settlement discussions.
- Issue and statement of the case: preparation of particulars.
- Disclosure.
- Expert evidence: identifying and engaging suitable expert(s), reviewing draft and approving report(s), dealing with follow-up questions from experts, considering opposing experts’ reports, considering meetings of experts and preparing an agenda for the meetings.
- Trial preparation.
- Trial.
- ADR and settlement.
Preparing for the conference
Preparation for the conference is key. The agenda will depend on which phase of the litigation process is taking place.
There should always be a clear purpose. The attendees should set an agenda and schedule for the meeting depending on the number of attendees. Practical arrangements will normally be coordinated by the instructing solicitor, including organising a convenient time and place for a physical meeting or call-in details for remote conferences. It is advisable to check your internet connection and device in advance of dialling in to avoid unnecessary delay. All relevant materials should be made available. It goes without saying that all attendees should have read the appropriate material thoroughly and have prepared a list of questions or matters they wish to raise.
Do both the expert and the lawyers understand the duties and obligations of experts?
Experts 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 (CPR 35.3). This duty overrides any obligation to the person instructing or paying them.
The Guidance states that: “Experts must not serve the exclusive interest of those who retain them and 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.”
Although counsel is entitled to probe and question what the expert says at the conference, they may not seek to change the evidence provided. The last thing counsel wants is for the expert to change their opinion in the courtroom. It is their duty to make sure the expert is clear on the evidence and knows if there are grey areas in their opinion. The expert must indicate if there is a range of opinion.
Essentially, counsel want to test the expert’s qualifications and experience on the issues and then test the opinions expressed. Counsel should explain to the expert that these same areas will be tested in court by cross-examination.
Getting to the issues
The whole thrust of the CPRs is to narrow the issues in dispute. Therefore, the options of discussions between experts and putting questions to the other sides’ expert should be discussed in detail.
Counsel will want to answer the following two questions:
- What are the matters that are material to the disputes that require expert opinion?
- Do these matters lie within the expert’s area of expertise?
Much of the conference will focus on these two questions and the expert should expect some difficult questioning. They should not take this personally but must do all they can to satisfy counsel.Counsel should be careful to avoid mock cross-examination on the issues as this could verge on coaching, which of course is prohibited by law. If there are questions or issues which fall outside their expertise, it is the duty of the expert to raise this immediately.
35.4 of the CPRs requires that when parties apply for permission to instruct an expert, they must:
- provide an estimate of the costs of the proposed expert evidence.
- identify the field in which expert evidence is required.
- Identify the issues that the expert evidence will address.
Permission, if granted, shall be in relation only to the expert named or the field identified. The court may specify issues that the expert evidence should address and may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party. It is important that the issues are identified from a costs point of view. But narrowing the issues will also be helpful for discussions between experts, case pleadings and cross-examination.
Has the expert seen all the relevant evidence?
Counsel should make sure that the expert has been provided with all the appropriate evidence.
As the Guidance says: “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.”
Counsel should remind the expert to inform those instructing them without delay of any change in their opinions on any material matter and the reasons for this. Counsel should advise on whether the expert should be formally instructed if he has not been prior to the conference. No doubt the instructing solicitor will have established these matters, but counsel should confirm that the expert is fully aware of them.
The solicitor will normally have agreed the terms of appointment, including timing of reports, charges, cancellation fees etc. So, these matters should not concern counsel.
The Guidance states:
“Before experts are instructed or the court’s permission to appoint named experts is sought, it should be established whether the experts:
a) have the appropriate expertise and experience for the particular instruction;
b) are familiar with the general duties of an expert;
c) 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;
d) are available to attend the trial, if attendance is required; and
e) have no potential conflict of interest.”
Going through the expert’s report
The expert’s report forms the backbone of their evidence. It should not be served until counsel has advised. The Guidance provides helpful information about the form of the report. This should be read carefully.
Instructing solicitors and counsel should ensure that reports comply with all requirements and should point out any discrepancies. They should not, however, influence the report - see Pickett v Balkind [2022] EWHC 2226 (TCC) where it was revealed that an expert witness had sent a draft of the joint statement to counsel, and had received comments back for consideration (and inclusion in the final version). Expert reports must contain statements determining that the expert understands their duty to the court and has complied with the CPRs. Most importantly, the expert must sign the statement of truth.
Does the report set out all material instructions?
The report should also set out all material instructions sent by the instructing solicitor.
Counsel should check that the instructions are accurate, as the Guidance states: “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.”
Prior to filing and serving an expert’s report, instructing solicitors must check that any witness statements /other experts’ reports relied upon by the expert, are the final served versions. Counsel should ensure that this has occurred, as expert opinion may change in light of later evidence.
The Guidance further states: “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.”
Counsel should remind the expert of these detrimental outcomes.
Getting paid for the conference
A conference with counsel may well be a fully justifiable cost but judges are strict when it comes to costs and budgeting.
The impact of the reasonable and proportionate rule can be seen for example in BNM v MGN Limited [2016] EWHC B13 (Costs) where the successful party claimed costs of £241,817. Following a line-by-line assessment of what were reasonable costs to bring the case, this sum was reduced to £167,389. However, it was concluded that even this was twice the sum that would be proportionate to the case, and the costs were reduced further to £84,855.80.
Experts must ensure that any estimate of fees for the purposes of costs budgeting, including a conference with counsel, is accurate, detailed, and transparent. Also, that it provides valid reasons for the need for a conference. Include likely contingencies, for example, work relating to the clarification and amendment of reports, further reports, examinations, and tests that may become necessary because of the other side’s expert evidence or what transpires from the conference. It is helpful to get the estimate right to begin with. However, where the original budget is likely to be exceeded, an application to review the budget can be made.
Under CPR 3.15, the court can make a costs management order to control recoverable costs.
Record keeping
As is good practice in any professional meeting, careful notes should be kept of the conference including the date, start and finish times, who was present and what was said. It is also good practice at the end of the conference to run through any action steps, noting who is responsible and when the actions are to be completed.
Conclusion
A conference between the expert and counsel is an important stage in the litigation process. Both lawyers and experts should prepare carefully to ensure conferences are as effective as possible. Many problems ranging from professional embarrassment to criminal proceedings can be avoided if a conference is conducted properly.
Mark Solon, Bond Solon