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Expert Evidence - Code of Practice
The video offers helpful advice on the benefits of using a solicitor. We particularly wish to highlight that we are not legal advisers. Whilst we are used to presenting evidence and understand related legal points, for specialist legal advice, you should see a solicitor.
This code of practice is based on the code drafted by their professional body, The Law Society. A distinction is drawn between experts who are instructed to act solely in an advisory capacity and those asked to give or prepare evidence for the purpose of court proceedings.
Advice refers to work other than for court proceedings, where experts owe a duty to the client/solicitor. If a dispute proceeds to litigation and a report is required, the expert's overriding duty is to the court.
In the case of advice, the expert has a duty to explain the strengths and weaknesses of the client's case. In a report for the court, the expert's duty is to cover issues in dispute relevant to their area of expertise and to provide for the court the range of professional/expert opinion on the key issues, in an impartial way.
1. ACCEPTANCE OF INSTRUCTIONS
1.1 Experts should ensure they receive clear instructions from solicitors (in writing unless this is not practical).
1.2 Instructions should be accepted only in matters where the expert:
Has sufficient knowledge, experience, expertise, qualifications, or professional training appropriate for the assignment.
Has the resources to complete the assignment within the time scales and to the standard required.
1.3 Experts should not accept instructions if not able to prepare a report, deal with written questions and hold discussions with other experts within a reasonable time, having regard to the timetable of the case. A time scale for production of the report should be agreed at the outset, notice of any delay given as soon as possible.
1.4 Experts should make clear to solicitors what can and cannot be expected on completion of the assignment and in particular, as soon as possible after being instructed, identify any aspects of a commission with which they are unfamiliar, not competent to handle, or on which they require, or would like further information or guidance.
1.5 If any part of the assignment is to be undertaken by parties other than the individual instructed; (a) prior agreement must be obtained from instructing solicitors; (b) the names of individuals to be engaged and details of their experience and qualifications must be given.
1.6 Where a firm or organisation has been instructed, the names of individuals to be assigned to the project, along with details of their experience and qualifications must be given on request.
2. TERMS OF BUSINESS
2.1 Experts should provide Terms of Business for agreement prior to the acceptance of any instructions. These should include:
The basis of the expert's charges i.e. daily or hourly rates or an agreed reasonable fee for the project or services and an estimate of time likely to be required; treatment of traveling time; any traveling or other expenses or disbursements; time for delivery of the report and for making payment, including special provisions where the case is legally aided or where fees are to be paid by a third party.
Arrangements for dealing with questions on the report and for discussions between experts and the costs of this work.
Rates for attendance at court and any provision for payment in the event of late notice of cancellation of a court hearing. Experts should not accept payment for services contingent upon the nature of the evidence or the outcome of the case; to do otherwise would contravene the expert's overriding duty to the court. However, agreement to accept delayed payment of expert's fees until the conclusion of the case is permissible, as long as the amount of the fee does not depend upon the outcome.
2.2 The Civil Procedure Rules give the court the power to limit the amount of expert fees which may be recoverable from another party; this would not affect an expert's contract with the instructing party.
3. PROFESSIONAL CONDUCT
3.1 Experts must comply with the Code of Conduct of any professional body of which he/she is a member.
4.1 The identity of a client or any information about the client acquired in the course of the commission shall not be disclosed by the expert, except where consent has been obtained from the client, or where there is a clear legal duty to disclose.
5.1 Experts will disclose to solicitors at the start of each project any personal, or financial, or other significant circumstances which might influence work for the client in any way not stated or implied in the instructions, in particular:
Any directorship or controlling interest in any business in competition with the client.
Any financial or other interest in goods or services (including software) under dispute.
Any personal relationship with any individual involved in the matter, or likely to be so.
The existence but not the name of any other client of the expert with competing interests.
5.2 Any actual or potential conflict of interest must be reported to the solicitor as soon as this is raised, or becomes apparent and the assignment must be terminated where appropriate.
5.3 It is the duty of an expert to maintain professional objectivity and impartiality when advising a party, preparing a report for proceedings and when giving oral evidence in court.
6.1 Experts should consider whether there is a need to see the client, visit a site etc. and if so, agree the practical arrangements with the solicitor in advance.
7. PREPARATION OF A REPORT
7.1 A report prepared for court proceedings should be addressed to the court. The report should cover:
Basic information such as names and dates.
The source of instructions and purpose of the report. If the report is for use in proceedings, this must include a statement of the substance of instructions, written and oral, on the basis of which the report was written and which are material to opinions expressed.
The court has power to order disclosure of the actual instructions to the court and to the other party but only where there are reasonable grounds for believing the statement of the instructions in the report may be inaccurate or misleading.
The history of the matter.
The methodology used in investigation.
The documents referred to in the preparation of the report and/or any evidence upon which the report is based.
Facts ascertained and inferences drawn from the facts, with reasoning.
The expert's opinion, with any qualification or reservation. If the report is for use in proceedings and there is a range of opinion on some or all of the matters dealt with, the expert should summarise the range and give reasons for his own opinion.
The conclusions, where appropriate cross-referenced to the main text.
A summary of the expert's qualifications and experience.
All reports for use in court proceedings must contain a declaration that the expert understands and has complied with their duty to the court, also that the expert has read and complied with Part 35 of the Civil Procedure Rules, along with accompanying practice direction. Expert's reports must also be verified by a statement of truth.
8. SINGLE JOINT EXPERT
8.1 The Civil Procedure Rules intend that where possible, matters requiring expert evidence in court should be dealt with by a single expert, rather than two experts separately instructed by the parties.
8.2 The court has the power to direct that evidence on an issue is to be given by one expert only. Where the parties cannot agree who that expert should be, the court may select the expert from a list prepared by the parties or direct that the expert be selected in another way e.g. by the President of an appropriate professional body.
8.3 The expert may receive joint instructions or separate instructions from each party. The parties will usually be liable "jointly and severally" for a single expert's fees, unless the parties/expert agree otherwise
8.4 When a single joint expert needs to see a client, or visit a site, the expert's conduct should be determined by the principles of fairness and transparency. If the single expert is asked to attend a conference with one party's Counsel, an opportunity should be offered to the other party's solicitor to attend the same part of the conference.
8.5 A single joint expert should set out in his report clearly the issues which are of particular concern to the respective parties, the questions raised by the parties and the expert's answers/opinions. If the single expert experiences any difficulties in complying with the court's wishes, he may apply in writing to the court for directions without giving notice to any party.
9. DISCUSSION BETWEEN EXPERTS
9.1 Experts may be instructed by the court, or invited by parties/solicitors to discuss or meet with other parties' experts, with a view to reaching agreement on the whole or aspects of the expert evidence, or narrowing areas of disagreement.
9.2 Discussions may take place face to face or, for economy of time or costs and if appropriate, by telephone. Experts should ensure that parties/solicitors draw up a clear agenda for the meeting, preferably 7 days in advance and that the experts are given specific questions to discuss/answer.
9.3 Discussions between experts should be limited to factual and/or opinion issues within the expert's expertise; legal liability is not a matter for experts to discuss or decide. The experts should, without delay and if possible at the meeting, prepare and sign a note of the main points of agreement/disagreement reached.
10. AVAILABILITY FOR ATTENDANCE AT TRIAL
10.1 An expert should be aware that when agreeing to prepare a report for court, they may be called to give oral evidence. The expert should take all reasonable steps to ensure they will be available to attend court if required but should be aware that the solicitor may need to serve a witness summons in the event of real difficulty.
10.2 When giving evidence at court, the role of an expert is to assist the court and remain independent of the parties. Experts should give evidence in an objective, impartial way and confine that evidence to matters within their competence relevant to issues in dispute.
11. COMPLAINTS PROCEDURE
11.1 Experts should provide a procedure for resolving complaints by solicitors, including the following:
At the start of the assignment, the expert should give the solicitor/client the name of the person to contact in the event they are dissatisfied with the service provided. For work through the Website Report Service, this is shown within our complaints procedure.
In the event of a complaint being made, the expert should still ensure the solicitor/client has details of the procedure for resolving a complaint and if appropriate, supply details of any professional or trade bodies of which individuals acting on the commission are members.
You are welcome to read more on the support offered regarding expert evidence, or contact us for any assistance we can offer.