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• New Expert Witness Protocol

Introduction

In June last year the Civil Justice Council published a new protocol for the instruction of experts to give evidence in civil claims. This protocol became effective on 5 September 2005 and replaces existing codes of guidance for expert witnesses.

The protocol applies to all experts who are instructed to give or prepare evidence for the purpose of civil proceedings but does not apply to experts who are only providing behind the scenes advice rather than giving expert evidence to a Court.

The guide is intended to assist in the interpretation of the Civil Procedure Rules and not to replace them. However, the guide is invaluable reading for anyone who acts as an expert witness in litigation or is involved in Court cases where expert evidence is to be given.

Some of the major points of guidance set out are as follows :-

• an expert must not serve the exclusive interest of those who retain them
• experts should not take it upon themselves to promote the point of view of the party's instructing them or engage in the role of advocate
• experts should assess the cost and time involved in the production of a document and whether its provision would be proportionate to the context of the case, unless the document appears to be essential
• discussions between experts must be proportionate to the value of the case and by telephone conference, letter or face to face as appropriate
• it is normally inappropriate for lawyers to be present at expert meetings.

The protocol also provides that where experts reach agreement on an issue the agreement shall not bind the parties unless the parties have expressly agreed to be bound. However, the guide goes on to say that the parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs.

The protocol gives circumstances in which experts should inform those instructing them of problems with the instructions for example instructions that are unacceptable because they require work outside the experts expertise, impose unrealistic deadlines or are insufficiently clear. Where such problems cannot be resolved, the expert may consider withdrawing from the case.

The protocol makes it clear that the Courts may take into account any failure to comply with the protocol when making orders as to costs, interest, time limits, and stay of the proceedings. The protocol states that the Court may consider whether to order a stay of the whole or any part of the proceedings pending compliance with the protocol.

The protocol also warns that any failure by experts to comply with the Civil Procedure Rules or Court Orders or any excessive delay by the expert may result in the party who instructed them being penalised in costs and possibly being debarred from using their expert evidence.

In the case of Phillips v Symes it was held that Courts may make orders for costs directly against experts who by their evidence caused significant expense to be incurred and did so in flagrant disregard of their duties to the Court.

Many of the provisions in the protocol are aimed at avoiding excessive costs being incurred with experts in claims of a moderate size. The protocol is to be welcomed as useful guidance to all experts and those who instruct them.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.