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Expert evidence
Civil Justice Council Protocol on Expert witnesses
The Civil Justice Council has published this protocol to be followed by all experts in civil claims: It is essential that both those who instruct experts and experts themselves are given clear guidance as to what they are expected to do in civil proceedings. The purpose of this Protocol is to provide such guidance. It has been drafted by the Civil Justice Council and reflects the rules and practice directions current [in June 2005], replacing the Code of Guidance on Expert Evidence.
Protocol for the Instruction of Experts to give Evidence in Civil Claims
Second Expert
The court has the power to give permission to a party to rely on a second (replacement) expert but it should usually only exercise that power on condition that the report of the first expert is disclosed. That was (correctly) decided in Beck v Ministry of Defence [2003] EWCA 1043. This is so even though reports prepared for the purposes of litigation are, until they are disclosed, protected by privilege.The principle established in Beck is important. It is an example of the way in which the court will control the conduct of litigation in general, and the giving of expert evidence in particular. Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness A in place of expert witness B, the court has the power to give permission on condition that A's report is disclosed to the other party or parties, and that such a condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court's permission to rely on a substitute expert, it will be required to waive privilege in the first expert's report as a condition of being permitted to do so. (Para 29).
A question that was not considered in Beck is whether the condition of disclosure should relate only to the first expert's final report, or whether it should also relate to his or her earlier draft reports. In our view, it should not only apply to the first expert's "final" report, if by that is meant the report signed by the first expert as his or her report for disclosure. It should apply at least to the first expert's report(s) containing the substance of his or her opinion.
In the present case, the first expert had produced a "draft interim report". It is reasonable to infer from the defendant's wish to change experts and refusal to provide an explanation that the draft interim report contains the substance of the first expert's opinion on some or all of the remaining issues in the case. In these circumstances, we consider that the judge was entirely justified in deciding that, if the defendant needed the permission of the court to rely on the evidence of Mr Negus, it should be a condition that he disclose to the claimant Mr Watson's draft interim report (Paras 30 and 31) Hajigeorgiou v Vasiliou [2005] EWCA Civ 236
Single joint experts
A single joint expert should not attend any meeting or conference that is not a joint one, unless all the parties have first agreed in writing.
Unless there is some reason for not having a joint expert, there should only be one expert and in the normal way the report prepared by the expert should be the evidence in the case. It should not therefore usually be necessary for that report to be amplified or tested in cross-examination. If this does occur such amplification or cross-examination should be restricted as far as possible. The fact that a lot is at stake does not justify a departure from these principles."The appeal raises a point of general significance in relation to expert evidence. It arises in the context of a claim for medical negligence". (Lord Woolf, para 2).
"As we will see when we come to the framework which is provided by the Civil Procedure Rules, the Rules permit the court to require the parties to use a single expert. This is not a matter of choice for the parties. In the absence of special circumstances I consider that the appropriate way that the power should be exercised is to require a single expert rather than an expert from each party. It is only by so doing that control can be exercised over the costs involved. I have already referred to the number of non-medical experts that were required in this particular case. To have contested issues over the evidence given by those non-medical experts would make the litigation disproportionate. (Lord Woolf, para 7)"
"The starting point is: unless there is reason for not having a single expert, there should be only a single expert. If there is no reason which justifies more evidence than that from a single expert on any particular topic, then again in the normal way the report prepared by the single expert should be the evidence in the case on the issues covered by that expert's report. In the normal way, therefore, there should be no need for that report to be amplified or tested by cross-examination. If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. The court may permit that to happen either prior to the hearing or at the hearing. But the assumption should be that the single joint expert's report is the evidence. Any amplification or any cross-examination should be restricted as far as possible. Equally, where parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court still to permit a party to instruct his or her own expert and for that expert to be called at the hearing. However, there must be good reason for that course to be adopted. Normally, where the issue is of the sort that is covered by non-medical evidence, as in this case, the court should be slow to allow a second expert to be instructed." (Lord Woolf, para 28).
"Counsel for the appellant said that one reason why a conference such as he sought was desirable (indeed in his view required) was not in order to persuade the expert to improve his or her report in favour of the claimant, but to enable the claimant's lawyers the better to assess the strength and range of the expert's report: with a view to their being able better to advise their client and to fulfil their duty to report to the court about the reasonableness of any proposed settlement, it being borne in mind that this was an infant's case.
That, as it seemed to me, was the only even arguable practicable reason why such a conference should take place. But the argument is, in my view, clearly unsound. The machinery of the Civil Procedure Rules enables clarification of the report to be sought by way of questions under CPR Part 35.6. That process, together with informed reading of the report, should be amply sufficient to enable advisers with any experience of this area of litigation to judge the likely outcome of the case in the context of the expert's report. In my view, that process of reflection upon written material is likely to be much more reliable than probing viva voce at a conference. The desire for the latter process to be introduced into this part of the procedure reveals a scepticism about the efficacy of written procedure and clarification of issues on paper, which represents what perhaps was an earlier position of English law that the Civil Procedure Rules have gone a long way towards displacing." (Buxton LJ, paras 37 and 38).
Peet v Mid-Kent Healthcare Trust [2001] EWCA Civ 1703 [2002] 1 WLR 210.
A single joint expert had been appointed. However the claimant was not satisfied with his report and was able to demonstrate to the judge (Neuberger J - who is generally not greatly impressed by the idea of single joint experts) that there was a real prospect of successfully challenging the expert's conclusion. The claimant should therefore be entitled to cross-examine the expert at a trial.
Layland v Fairview New Homes plc
A neighbour was sued in negligence and nuisance after he had done some work to a party wall without first obtaining the benefit of a party wall award. The case is mainly of interest in relation to the judges comments on the inadequacy of the evidence of one of the experts and the judges statement that a single joint expert would have been sufficient:It was manifest from the pleaded issues that all that was required was a knowledgeable account of the possible causes of the observed damage. It would then be for the judge to decide which was the more (or, if more than two, the most) probable. (per Sedley LJ). Roadrunner Properties v Dean [2003] EWCA Civ 1816; [2004] 11 EG 140
Articles:Joint experts escaping the net by Christopher Taylor, Queen Square Chambers, Bristol Compares Daniels v Walker and the more recent case of Peet v Mid-Kent Healthcare in which Lord Woolf stated that there must be a good reason before a party will be permitted to rely upon a separate expert. (New Law Journal, 11 October 2002, p1506).
Judgment of errors by Simon Murphy Discusses the circumstances in which it is possible to challenge an experts decision on the basis of manifest error in the light of Invensys plc v Automative Sealing Systems Ltd [2002] 1 All ER (Comm). (Estates Gazette, 23 March 2002, p130)
"Single joint experts: surveying the results" by Michael Cohen - Considers the results of a survey carried out by Simmons and Simmons. The sample was small but the author concludes in relation to the system that "where it works it works well and where it does not it can be little short of catastrophic" (New Law Journal, 28 February 2003, p306).
Valuation evidence
Articles:The little red book by Nick French, senior lecturer in real estate, Reading University Explanation of valuation and of the valuers bible, the Red Book. First in a series of two articles. (Estates Gazette, 15 October 2005, p200).
Compare notes by Nick French The second article, explaining the use of comparable evidence in valuation reports (Estates Gazette, 29 October 2005, p184).
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