Counting time

James Stanbury examines the effects of the late appointment of expert witnesses

The structural preservation of the country’s financial resource is not the singular preserve of the Chancellor of the Exchequer. The instigation and continuation of any litigation process is underpinned by consideration of its costs – not only those of the legal team but of the experts used as well.

The management of costs in any litigation is important. Those cases where costs outweigh the value of a claim should be a rarity but that is not always the case. Of course, the complexity of the facts and arguments may necessitate that equation. In addition, the skill of the defence team will also have a bearing on the outcome of both liability and the ultimate resolution of quantum.

When is the right time to appoint an expert? As lawyers will naturally and rightly focus on liability, it is not unusual for quantum to be considered late in the process; indeed, it is not unusual for experts to be appointed by the defendant less than a week before a mediation or a deadline for serving a report.

Of course, each case is different and particular circumstances can dictate late appointment. I was recently involved in a High Court matter where I was instructed after an application for summary judgment had been dismissed and the defendant was then forced to join the full legal process a month before trial. This left just two days to join an existing joint statement process before its signing. This is perhaps an extreme example but it underlines the key question of, where an expert is instructed, when is the most opportune time for their instruction.

It is fair to say that most experts – whatever their particular discipline and expertise – will say that early appointment is best. It allows the expert to gain a thorough knowledge of the case, request and examine the documents that are core to the case,  undertake appropriate investigation and research, and provide early advice on either liability or quantum.

Changing dynamics

The recent Supreme Court’s judgment in Jones v Kaney, which has rescinded the long-established immunity of an expert witness, will have many potential ramifications for experts. They will certainly have to consider whether they are at risk from accepting late and/or inadequate instructions. The dynamic between the lawyer under whose control the timing of an appointment is made, and the expert who is asked to provide an opinion within any consequent time period, will certainly be interesting.

Leaving the appointment of an expert late may assist a lawyer and the client in the containment of costs but it is dangerous for a lawyer to consider the role and timing of an expert solely in relation to cost.

It is also important to consider how the court may view such timing. Indeed, the late appointment of an expert can have a significant effect on the very costs that a lawyer may wish to contain. Judges and arbitrators can take a dim view of the late introduction of expert evidence with consequent cost penalisation or refusal to allow its introduction.

Of course, where a trial is bifurcated between liability and quantum, the timing of the appointment of a quantum expert such as an accountant is simplified. For experts, where there are multiple liability options and therefore where multiple quantum outcomes can be calculated, having direction from a liability judgment as to which scenarios should be addressed is welcomed.

That said, it remains important for the lawyer to consider quantum even at the liability stage whether expert advice will be required. Split trials are sometimes perceived as favouring the claimant who can delay fully investigating quantum. They place significant pressure on the defendant in that the claim cannot be valued precisely.

However, it will allow an informed defendant to apply pressure on a claimant by offering money where the claimant will not necessarily know the final value of its claim and still runs the risk of losing on liability.

So, quantum is important whichever stage of the litigation process you are in – money is, after all, what parties generally bring legal actions for, even if a case ends in a settlement. The appointment of an expert is an important step in any litigation process and one best made early.

James Stanbury is a partner with RGL Forensics