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How to prepare expert witness evidence
- Nov 16, 2022
- Latest Journal
Where legal cases are technically complicated there may be a need for experts to provide opinion evidence. This can be in relation to agreed facts or facts in dispute between the parties. The law in relation to expert evidence is not straightforward and this article is designed and intended to be a walk through some of the issues which experts need to consider.
Expert Advisor v Expert Witness: on what basis are you being instructed?
Very often in the early stages of a claim a party to intended litigation is not looking for an expert to prepare a CPR Part 35 compliant report but is looking for a steer or an orientation opinion on how a claim or a defence could be formulated. If an expert is instructed to prepare such a report then this person is an expert advisor. It is permissible in due course to act as an expert witness.
If instructed as an expert advisor then it is important to note the following:
• The expert advisor owes duties to the party instructing him not to the court
• Instructions to an expert advisor are generally privileged (and therefore the opposing party cannot see them)
• The fees paid to an expert advisor are not generally recoverable from the opposing party if the claim is successful
• If the expert advisor is subsequently instructed as an expert witness then do ask the instructing solicitor to send new instructions at that stage.
Expert witness: has the court given consent for you to act?
As a proposed expert you may be asked to provide to your instructing solicitor significant information about your instruction. This is because an expert can only give evidence if the court has given permission for that expert to give evidence. CPR 35.4 states as follows:
"(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –
(a) the field in which expert evidence is required and the issues which the expert evidence will address; and
(b) where practicable, the name of the proposed expert.
(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.
(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party."
In all but the most straightforward of cases, each party will appoint their own expert. The first Case Management Conference is usually where directions will be given as to the expert evidence that can be given. Typically the Order will include:
• A definition of the area of expertise.
• What issues the expert is permitted to give evidence on.
• Dates for expert evidence to be served
• When the experts to each side should meet and prepare their joint statement
It is important that experts are consulted ahead of the Case Management Conference and that experts provide accurate details as to their expertise, experience and availability. Experts may be called as witnesses at trial and cross examined by the other party. If details in relation to expertise or experience are inaccurate then these may be teased out during cross examination and adversely affect the credibility of that witness.
In addition it is important as an expert witness to remember that an expert witness owes their duty to the court not to the party instructing them. If inaccurate information is given as to availability and as a result the court timetable has to be amended this may have implications for the expert (set out in more detail below).
The Expert Report: what should the Expert Report consist of?
It is for the expert to decide on the contents and format of the report. However there is guidance available to experts.
The letter of instruction should set out what the expert is expected to report on. If the letter of instruction is not sufficiently clear then an expert should seek guidance from those instructing him/her/them.
CPR35 and the associated Practice Direction also sets out what is expected of an expert:
CPR 35.10 states:
“(1) An expert’s report must comply with the requirements set out in Practice Direction 35.
(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written”
Practice Direction 35, paragraph 3, gives guidance on the content and provides that the report must:
“(1) give details of the expert's qualifications;
(2) give details of any literature or other material which has been relied on in making the report;
(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are within the expert's own knowledge;
(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;
(6) where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinions; and
(b) give reasons for the expert's own opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give an opinion without qualification, state the qualification; and
(9) contain a statement that the expert –
(a) understands their duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014”
In addition experts need to be aware of specialist guidance which may be available. For instance, the Technology and Construction Court has issued guidance in relation to expert evidence and the reports should:
• Be as short as is reasonably possible.
• Keep quotes from documents as short as possible.
• Identify where opinions/data emanated from.
As already mentioned an expert owed their duty to the court not to the party instructing them. The High Court recently addressed this issue and the need for experts to act independently of the party instructing them in Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) (also known as the Chirk Nuisance Group Litigation). In that case the Claimants' expert had consulted with and sought the opinion of the solicitor representing the Claimants in relation to matters being discussed in the joint expert discussions and the joint statement including views on the draft version of the joint statement. The Senior Master took the view that this was a serious transgression and revoked permission for the Claimants to rely on that expert in the litigation. The Senior Master said:
"It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence."
Experts should therefore not involve their instructing solicitor on the content of their report or the joint discussions/joint report. Experts should note however that it would be open to a solicitor to request the amendment of a joint statement if there are concerns that the court may misunderstand or may be misled by the joint statement. This is very exceptional and if such a concern is raised then this would normally be raised with all the experts involved and not simply directed at one expert.
Expert Evidence: what guidance can an expert seek from the court?
If an expert requires assistance in carrying out their function as expert they can apply to the court asking for directions under CPR35.14. This provision is rarely used and even the longest serving judges only recall the provisions being used on a handful of occasions. However it was utilised in the case of Mustard v Flower [2019] EWHC 2623 (QB). This was a personal injury case and the Master ruled that the expert did not need to answer the lengthy and voluminous questions which had been posed by the Claimant's solicitor. It is worth noting the observation made by the Master:
“I have never before encountered a set of questions to experts even remotely approaching the scale and complexity of these and I have never known questions to provoke letters to the court from an expert or group of experts phrased in terms such as the present. (Indeed, letters of any kind from experts to the court seeking directions under CPR rule 35.14 are very rare. I consulted the longest serving Master, Master Yoxall, on this matter. He had received questions from an expert on just two occasions in 18 years.)”
Trial: Giving Evidence
The vast majority of cases do not proceed to trial so giving evidence in court is unusual. If as an expert you are not used to giving evidence then it may be helpful to ask your instructing solicitor to explain the hearing process and set out the logistics. This could involve explaining how evidence will be given, for instance, remotely if the trial is to take place online or alternatively run through how evidence will be given in person, in a court room. Hopefully this will remove any nervousness.
It would be prudent for an expert to request a copy of the trial bundle and ensure that he/she/they are familiar with the bundle and know where the expert reports are in the bundle.
In addition an expert should re-visit their report, any other expert reports and the joint statement to ensure that they are fully familiar with the reports so that they can explain to the court, their opinion, their views on other expert reports and why they stand by the conclusions they reached.
When giving evidence experts should try not to argue with counsel for the other party or lose their temper. It is essential that an expert remains calm and collected. It is likely that any cross examination will not relate to the expertise of an expert (as any inability to opine on a subject should have been flushed out at the first Case Management Conference) and is more likely to focus on any inconsistencies in the expert report or concessions made in the joint statement. Experts should be alert to this and consider how they may answer questions that take them down that road.
It is important only to answer the question which has been asked and not to try and second guess what counsel is wanting to hear. In addition experts should not give answers to questions which were not asked or expand answers into an essay to see off anticipated questions. If a question is not understood or clarification is needed, an expert can always pause matters and ask counsel to re-frame the question, repeat the question or provide the clarification needed.
We would suggest that you hear the evidence of the other party if possible. There may be issues which arise out of that evidence that you need to incorporate into your own.
Do request to know the outcome of the case and to see the Judgment. In the event that the case is lost there may be a need to evaluate what the Judge says in relation to the expert evidence in case that may be relevant for any appeal.
Expert Witness: who do you owe a duty of care to?
The case of Jones v Kaney [2011] UKSC 13 establishes that an expert giving evidence does not have immunity and may be sued. Lord Dyson said:
“[The expert’s] duty to the client is to perform his function as an expert with reasonable skill and care. This includes a duty to perform the overriding duty of assisting the court. Thus the discharge of the duty to the court cannot be in breach of duty to the client. … If [the expert] gives an independent and unbiased opinion which is outside the range of reasonable expert opinions, he will not be in breach of his duty to the court … but he will be in breach of the duty owed to his client.”
Since the case of Jones v Kaney was decided there have been cases where experts have been criticised when they have given evidence and leading on from that where a party could sue his or her expert.
Examples are:
X and Y (Delay: Professional Conduct of Expert) [2019] where the expert had failed to meet deadlines because of the expert’s personal circumstances.
Riva Properties Limited v Foster + Partners Limited [2017] EWHC 2574 (TCC) where the Defendant’s expert was criticised with the judge saying that the expert’s approach had “no intellectual justification whatsoever” and was “wholly flawed … verging on nonsense”.
Concluding Comments
Giving expert evidence is not always a straightforward process and if the expert gets it wrong then there may be regulatory or legal consequences. Experts therefore need to ensure that they are aware of the requirements relating to the content of their report, the scope of their duties and seek appropriate assistance either from those instructing them or from the court when required.
Nichola Evans
Ward Hadaway
2nd October 2022