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The Civil Justice Council's ("CJC") guidance on the instruction of experts in civil claims (the "Guidance") formally came into effect on 1 December 2014. The Guidance replaces the CJC Protocol for the Instruction of Experts (the "Protocol"), which was annexed to Practice Direction 35 of the Civil Procedure Rules.
The overriding difference between the Protocol and the Guidance is that the latter mirrors the changes to civil litigation introduced by the April 2013 Jackson reforms, recognising the courts' increased focus on costs management.
The Jackson effect - costs considerations under the Guidance
Some of the key provisions in the Guidance relating to costs are:
- An express reference to the requirement under CPR 35 for a party to provide a costs estimate in relation to any proposed expert evidence.
- A new provision stating that the terms of an expert's appointment should normally include guidance that the expert's fees and expenses may be limited by the court.
- Where a party appoints its own expert in addition to a single joint expert, the Guidance provides that fees for that expert will not be recoverable from the other party. This differs from the Protocol, which stated that the costs may not be recoverable.
- A reference to the court's power to order "hot-tubbing"; a practice whereby experts from the same discipline give evidence at the same time and in each other's presence. The Guidance endorses this practice, stating that "Concurrent evidence can save time and costs, and assist the judge in assessing the difference of views between experts".
The following new provisions are also worth noting:
- Where a solicitor sends an expert additional documents before the report is finalised, there is now a requirement for the solicitor to tell the expert whether any witness statements or expert reports forming part of such documentation are updated versions of those previously sent, and whether they have been filed and served.
- Before filing and serving an expert report, solicitors must now check that any witness statements and other expert reports relied upon by the expert are the final served versions.
- New guidance is provided where there is to be a sequential exchange of reports. The defendant's report should not repeat information adequately dealt with in the claimant's report but should focus on the material areas of difference with the claimant's report. There is also a specific suggestion that the defendant's report contains a "reconciliation" between the claimant's and the defendant's loss assessments.
- When a case is concluded, whether via settlement or trial, the solicitor should inform the experts they have instructed.
The full Guidance can be viewed here.