The case for changing the conduct of experts

A spate of recent cases have helped to set out further guidelines for experts. Amina Somers, partner responsible for technology & construction at Irwin Mitchell’s London office, acted for BML. Amina Somers reports.

Lord Woolf, in his interim report, said that two of the major generators of unnecessary costs in civil litigation were uncontrolled discovery and expert evidence.

In his final report, Lord Woolf said of expert evidence: “A large litigation support industry, generating a multimillion pound fee income, has grown up among professions such as accountants, architects and others and new professions have developed. This goes against all principles of proportionality and access to justice. Many potential litigants do not even start litigation because of the advice they are given about costs, and in my view this is as great a social ill as the actual cost of pursuing litigation.”

The present system exaggerates the adversarial role of the expert, and this helps neither the court nor the parties. As the Court of Appeal recently remarked in the case of Abbey National Mortgages Plc v Key Surveyors Nationwide Ltd: “For whatever reason, and whether consciously or unconsciously, the fact is that expert witnesses, instructed on behalf of parties to litigation, often tend to espouse the cause of those instructing them to a greater or lesser extent. On occasions they become more partisan than the parties.”

Lord Woolf’s views are reflected in Part 35 of the Civil Procedure Rules (CPR), which says that it is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person who instructs or pays them.

In Stevens v Gully one of the experts refused to sign a joint memorandum after a without prejudice meeting. He appeared unclear of his duties to the court even though he had been provided with a copy of Practice Direction 35.

The Court of Appeal held that the decision not to allow the expert to give expert evidence was correct. It also decided that the expert should not be allowed to give factual evidence, depriving the instructing party of adducing its expert evidence at trial.

The commonly accepted analysis of the role of an expert was summarised by Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Company Ltd, in which he stated that the duties and responsibilities of expert witnesses in civil cases included the following:

Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced by the exigencies of litigation.

An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.

An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

An expert witness should make it clear when a particular question or issue falls outside his expertise.

If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

If, after exchange of reports, an expert witness changes his view on a material matter, having read the other side’s expert report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

Where expert evidence refers to photographs, plans, calculations or analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as exchange of reports.

In a recent case in which my firm acted, Winther Browne v BML (Office Computers), Judge Toulmin QC went further, redefining the role of expert witnesses. The way the experts conducted themselves led him to extend the established analysis of the role of experts to bring them in line with the new CPR.

Judge Toulmin’s judgment has to be seen in the context of the CPR, the concerns expressed by Lord Woolf and in particular the fact that these experts are a key component of disproportionate costs.

The BML case is illustrative of the disastrous consequences that can beset a party in which the result at trial is heavily dependent on expert opinion. Winther Browne’s claim for damages started off in the region of £1.2m. During the course of the litigation and at trial, that claim was reduced to around £900,000. The claim arose out of the supply by BML of a standard packaged computer system costing approximately £67,000. The central allegation made by Winther Browne was that the software was defective. Winther Browne’s claim was rejected after it was established that the proprietary software, Charisma, worked soundly and performed as BML claimed it would. Winther Browne was found to have not cooperated with BML in trying to find solutions to trivial and minor difficulties. During the course of the trial, BML argued that the legal action was precipitated by the actions of Winther Browne’s experts, one of whom described himself as the “leading computer dispute expert witness in the UK”.

Judge Toulmin found variously that Winther Browne’s experts took a confrontational approach. One of its experts wrote a paper in 1995, after the Ikarian Reefer case, for the Academy of Experts journal, in which he said: “An expert witness appointed under current procedure is under no duty to the court as an expert.” Judge Toulmin found that the expert’s action was consistent with that approach.

Judge Toulmin concluded by saying that Winther Browne’s experts had failed to conduct themselves as independent expert witnesses or in a manner that was acceptable to the court. Accordingly, he was unable to rely on their evidence as independent expert evidence.

It was emphasised that it was the duty of experts to provide independent assistance to the court and to the parties by way of objective unbiased opinion about matters within their expertise.

This duty extends to initial meetings of experts as well as to evidence at trial. An expert’s evidence should normally be confined to technical matters in which the court would be assisted by receiving an explanation, or to evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge. An expert should cooperate with the expert of the other party or parties in attempting to narrow technical issues at the earliest possible stage and to eliminate or place in context any peripheral issues.

Experts should also cooperate in attending without prejudice meetings, in seeking to find areas of agreement and in defining areas of disagreement. These should be set out in the joint statement of experts ordered by the court.

The conduct of the experts in this case illustrates the concerns expressed by Lord Woolf.

All things considered, the guidance in this judgment will benefit all litigants in cases involving expert evidence. It is a timely reminder to professional advisers and experts themselves of their duties to the court and to the parties, and a warning of the serious adverse consequences that may follow if those duties are ignored.