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In this article, we look at the guidance relating to the instruction of experts in civil claims, published by the Civil Justice Council.
What is the guidance?
The purpose of the guidance is to assist litigants, those instructing the experts and the experts themselves to understand best practice in complying with Part 35 of the civil procedure rules and court orders.
Is an expert needed?
Before you instruct an expert, you should consider if it is a necessary course of action in order to resolve the dispute, taking into account the principles of the civil procedure rules.
The court’s permission will be required before an expert’s report can be relied upon, or before the expert can give oral evidence. So, if a report is unnecessary or the court does not give permission, the costs you have incurred in obtaining expert evidence could go to waste.
Duties and obligations of the expert
Experts always owe a duty to exercise reasonable skill and care to those instructing them and, in our case, comply with the requirements of the Royal Institution of Chartered Surveyors.
They must provide opinions that are independent. Guidance states that a useful test of that independence is whether the expert would express the same opinion if given the same instructions by another party.
Experts should also confine their opinions to matters which are material to the dispute and provide opinions only in relation to matters which lie within their expertise. If they stray outside their area of expertise, the evidence may not be relied upon or may be inadmissible in court.
Experts are required to consider all material facts before them. Their report should set out those facts and any literature or material which they have relied upon to inform those opinions.
They should also indicate if an opinion is provisional, whether it is qualified, whether they consider that further information is required or if, for any other reason, they are not satisfied that an opinion can be expressed finally and without qualification.
If the expert has failed to consider all material facts, their conclusions may be called into question.
With civil proceedings, the expert’s overriding duty is to the court, to provide assistance on matters within their expertise. This supercedes any obligation to the person who is instructing them or paying their fees. It can often come as a surprise to that person, that the expert is not there to support their position.
Experts should be aware that the primary objective of the courts is to deal with cases justly, and that they are under an obligation to assist the court in this respect.
This includes fairly and expeditiously keeping their work and their costs in proportion to the value and importance of the case. If the expert’s costs are wholly disproportionate to the value of the claim, the court may take this into consideration when awarding costs.
Experts also need to be aware that any failure to comply with the rules or court orders, or any excessive delay for which they are responsible, may result in the parties who instructed them being penalised in costs or even debarred from being relied upon for expert evidence. This can have serious implications for the expert and the parties who are instructing them.
Appointing an expert
Before instructing an expert, you should establish that the expert has the appropriate expertise and experience, is familiar with the duties of an expert and that they can undertake their duties in a reasonable time and at a proportionate cost.
You should also ensure that the expert can attend the trial if they are required to do so and that they have no conflicts of interest. The terms of appointment should be agreed at the outset, including matters such as the timescales involved, the fees which will be payable and the basis of those fees such as travel costs, or abortive fees, for example.
The small claims track limits the extent of the expert’s fees which can be recoverable at £750. Often, the costs may significantly exceed this figure.
It is also important that those instructing the experts should ensure they give clear instructions and attach relevant documents, including:
- Basic information such as names, addresses, telephone numbers, dates of any incidents and any relevant claim reference numbers.
- The nature of the expertise required.
- The purpose of the advice or the report.
- A description of the matters to be investigated, the issues to be addressed, and the identity of the parties.
- The statements for the case, if any.
- The documents which form part of disclosure.
- Witness statements, and expert reports that are relevant to the advice or the report.
- Where proceedings have not been started, whether they are contemplated, and if so, whether the expert is being asked only for advice.
- An outline programme consistent with good case management and the expert’s availability for the completion and delivery of each stage of the expert’s work.
- Where proceedings have been started, the dates of any hearings, including any case or cost management conferences, the dates fixed by the court, or agreed between the parties for the exchange of experts’ reports and any other relevant deadlines to be adhered to.
- The name of the court, the claim number and the track to which the claim has been allocated.
- Any specific budget for the expert’s fees.
Acceptance of instructions
Once they receive instructions, the expert should confirm, without delay, whether the instructions are accepted and the terms of payment.
Alternatively, they should confirm as soon as possible if they cannot accept the instructions because, for example, they fall outside their expertise, they cannot meet the deadlines or the instructions are unclear or insufficient. Similarly, there may be a conflict arising from their appointment which they need to disclose.
If the expert is appointed and is subsequently required to withdraw, for example due to a conflict of interest, this declaration should be made formally and discussed with the parties.
Expert’s right to ask the court for directions
The expert can request directions from the court to assist them, if they are unable to obtain information that they require, for example following a formal request.
The guidance sets out how the expert’s ‘request for guidance’ letter should be structured.
The expert should ensure that they have access to all relevant information held by the parties and that the same information has been disclosed to each expert in the same discipline, as well as how the request for that information is made.
Single joint experts
It is normal for The Civil Procedure Rules to encourage the use of joint experts for small and fast track claims.
In the early stages of a dispute, when investigations, tests, sight inspections, photographs, plans or other similar preliminary expert tasks are necessary, consideration should always be given to the instruction of a single joint expert, especially when matters are not expected to be contentious. The objective should always be to agree, or to minimise, any outstanding issues.
The appointment of a single joint expert does not prevent the parties from instructing their own experts to advise them, but the cost of these experts would not be recoverable from the other party.
Single joint experts should keep all instructing parties informed of any material steps they may be making, for example by copying all the correspondence to those that are instructing them.
Normally, single joint experts are not called upon to give oral evidence at trial but, if they do, all parties may ask questions.
In general, written questions should be put to the single joint expert before requests are made for them to attend court for the purpose of cross examination.
How can Harrison Clarke help?
We have a wealth of experience in preparing expert evidence and reports compliant with the guidance and protocols.
You can be confident in our thorough technical knowledge, and experience in dealing with issues across all our service areas, which have included party wall matters, dilapidations, construction disputes, contract administration and professional negligence.
Please contact us if you would like to discuss instructing an expert in a civil claim.
We have a range of videos talking through various surveying services, including instructing an expert in a civil claim. You can access them via our website or our YouTube channel. If your query is not covered in our videos and blogs, please don’t hesitate to get in touch. We would be more than happy to help you.
How you can contact Harrison Clarke
Call our friendly, expert and highly qualified surveyors on 023 8155 0051, or email us at firstname.lastname@example.org. We would welcome the opportunity to help with any queries or needs you may have.
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