A witness to great change

Paul Clements reports on how the Civil Procedure Rules are affecting the way solicitors instruct expert witnessess. Paul Clements is head of litigation and dispute resolution at Radcliffes.

Part 35 of the Civil Procedure Rules has created a completely new environment for the production and admissibility of expert evidence in civil litigation.

The most innovative provisions of Part 35 provide that the expert owes their duty to the court and that duty overrides any obligation to the party that has instructed them. Also, the expert’s report must contain a statement setting out the substance of all material instructions they have received.

There are many other distinctions and novelties to the new rules, but these provisions alone are fundamental to the material change in the way solicitors can and should instruct experts and adduce their evidence to the court. It makes for an interesting environment for solicitors in terms of how they work with their instructed experts and in the way they have to advise their clients on the use that can be made of expert evidence.

The provision for disclosure of the expert’s instructions in the body of their report immediately attacks the previously understood element of privilege attaching to instructions and communications passing between solicitor and expert. Coupled with the requirement that an expert can only give evidence on issues that are relevant, this places a burden on solicitors at the earliest possible stage not only to select the expert whose evidence they intend to adduce and identify the precise issues on which they will advise, but to understand that the expert is duty bound to set out the nature and detail of their instructions in their report.

Therefore great care needs to be taken in framing those instructions. Similarly, given the expert’s overriding duty to the court, it is unlikely to be helpful to the client if instructions are subjectively slanted towards their case.

Many clients will have difficulty with the fact that an expert is no longer someone of a seemingly independent nature who will go in to court and tenaciously argue the client’s position for them, or who can address non-central issues.

Part 35.9 provides that where a party has access to information which is not reasonably available to the other party, the court may direct them to prepare and file a document recording that information and serve a copy of that document to the other party.

At least conceptually, this potentially provides the mechanism for a party which considers that the opposing solicitor has provided their expert with unnecessarily slanted instructions, to apply to the court for an order that the entirety of those written instructions be disclosed. A wise litigating lawyer will no longer fool themselves that they can say what they like to the expert and neither the other side nor the court will ever see their comments.

It is not simply enough to advise the client and prepare them for the fact that the expert has a duty to explain their professional opinions to the court without bias and that the client may no longer expect the expert inevitably to side with the client. A solicitor has a duty under Part 35 to explain carefully and clearly to the expert that their obligation is to the court and not to the client.

Many experts still operate, at least conceptually, under the old agendas, and solicitors need to take great care whenever instructing an expert to explain the new procedures. Equally, a solicitor needs to be aware of the client’s sensitivities and it can be a difficult task to explain to a client that they may not see their expert as someone who will, inevitably, produce the perfect argument tailored to the client’s needs, simply because they, at least initially, are paying the bill.

In the US, of course, such ideas of a seemingly even-handed approach by the solicitor in the discharge of their duties as a litigator on behalf of the client, are seen as something of an anathema.

Most clients, however, will understand the position, provided the litigating solicitor further discharges their duties and explains to the client the penalties that may befall them if the expert is instructed in an unnecessarily slanted way and produces uneven evidence.

Quite apart from the customary penalties on costs, which underpin many of the provisions of the CPR, the client runs the risk of simply not being able to rely on that expert evidence at all. Balanced evidence of which the court takes notice is preferable to no expert evidence at all.

It is no secret that the part of the old civil litigation procedures which Lord Woolf disliked the most were those relating to expert evidence.

There is equally no doubt that Part 35 brings about a major change in the way litigation is conducted, which will require all solicitors to reassess the way they advise their clients about the methods of adducing expert evidence and the way they instruct their experts and bring forward their opinions before the court.