Experts in preparing reports to give evidence in court proceedings

The Civil Procedure Rules (“CPR") came into force in 1998, following the “Access to Justice Report" written by Lord Woolf [1] in 1996. The report provided recommendations to improve the fragmented civil justice system and ultimately ensure access to justice. This essay will analyse the current CPR in relation to experts and consider the extent to which adherence to the rules can conflict with an experts’ duty to their client. It will also address case law that has explored this issue since the introduction of the CPR.

Expert evidence was quoted in Lord Woolf’s report as being one of the major generators of unnecessary costs in civil litigation. Experts were being used as a weapon by litigators to advance a client’s case, significant sums of money were often paid to obtain a “good" expert, whose evidence would increase a party’s prospect of success. The Court of Appeal commented that “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 occasion becoming more partisan than the parties." [2] 

The CPR addressed this issue by the introduction CPR 35, which provides the framework through which expert evidence is to be produced. The most significant factor being that “it is the duty of the expert to help the court on the matters within his expertise" [3] and “this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid." [4] The duty of the expert is to provide assistance to the court by providing an expert report on facts within their area of expertise. They are expected to provide opinions which are independent, regardless of the pressures of litigation [5] “An expert should not, therefore, simply concentrate on ascertaining any further facts or information which might help advance an opinion in favor of his client’s case; he also needs to establish whether there are any facts which would detract from that opinion" [6] . It is likely an expert will feel some tension between his overriding duty to the court and his duty to the paying client, when producing his evidence.

The CPR stipulates that an expert must submit their evidence by way of a written report [7] . Experts are expected to confine their opinions to matters which are material to the dispute between the parties and provide opinions only in relation to matters which lie within their expertise, [8] expert should not comment on matters which are outside their remit of knowledge even if this would be helpful to the client’s case.

CPR 31.6 states that a party must disclose all documents upon which he relies, along with documents that adversely affect his own case or another party’s case or support another party’s case. This extends to an experts report, so if an expert prepares a report prior to the commencement of litigation and this is sent to their client, it is likely to be subject to disclosure. Experts need to be mindful that instructions received from their client and communication relating to the report may need to be disclosed to the court [9] . “It might be safer to send the report to the solicitor, since this will not be subject to disclosure. During the run-up to a trial, the expert might prepare a report for disclosure under normal CPR35 rules, and accompany this with a covering letter to the solicitor. Since this letter will not be disclosed to the other side, the expert can be considerably more forthright about the strengths and weaknesses of the case" [10] 

Whilst the experts report can stand as evidence in chief, in some circumstances the expert may also be required to attend court to give oral evidence. The parties are permitted by the CPR to put questions to an expert regarding the contents of the expert’s report. The expert may be subject to cross-examination and will need to competently answer questions put to him, which is why it is important base the report on ones area of expertise.

In light of the overriding objectives of the CPR, the Court promotes that a single joint expert be used where possible, to promote efficiency and impartiality. Joint experts are less likely to have their client’s interests in mind when producing their report because they are required to communicate with both sides and produce a report that can be relied upon by both parties. They have to be prepared to withstand cross-examination that could be directed at them based on information included in their report.

Although the CPR provide strict guidelines relating to the appointment and duties of experts, case law highlights the issues that occur in relation to the lack of impartiality of experts and their potential inclination to put their duty to the client above their duty to the court.

In Helical Bar Plc v Armchair Passenger Transport Limited [2003] [11] , the question was whether the evidence of an expert who had previously worked for the company that was involved in the action should be relied upon. The trial judge held that “it was not right that someone with a connection, even a past connection to a party should give evidence as an expert and that justice would not be seen to be done if [the expert] was appointed". However, the defendant appealed the decision on the basis that the judge had applied too stringent a test. The appeal was allowed because “It was settled law that the test of apparent bias applicable to a court or tribunal was not the correct test in deciding whether the evidence of an expert should excluded" [12] . The appeal was upheld, the reason provided by the court was that there was no proper basis for concluding that the expert was unwilling to abide by his duty to the court. It could be argued that the appeal judge adopted a lenient approach to the issue in this case. One would expect that a previous relationship with one of the parties would cause an element of bias even if at a subconscious level. However, the judge was of the opinion there was no reason to believe that the expert would not honor his statement of duty to the court [13] .

Similarly, in the case of Field v Leeds City Council [1999] [14] , the defendant wanted to rely on a surveyor who was employed by them to give evidence. The district judge in this case refused to allow the evidence on the basis that the expert was not independent; the county court judge upheld what one would call a sensible decision. However, the Court of Appeal held that the fact that the expert was employed by the council did not automatically disqualify him from giving evidence. Lord Woolf took the view that although it would be virtually impossible for an employee to bring the requisite level of objectivity; the judge had to investigate the all of the facts before him.

In the case of Factortame Limited and others v Secretary of State for the Environment, Transport and the Regions (No 2)[2002] [15] the issue of impartiality was taken a step further, when the expert had a significant financial interest in the outcome of the case. The experts firm who had assisted in the litigation preparation would receive 8% of the sum recovered as damages on a contingency fee basis. Lord Philips MR, stated in his judgment that “It is always undesirable that an expert should have no actual or apparent interest in the outcome of proceedings in which he gives evidence, but such disinterest is not automatically a pre-condition to the admissibility of evidence."

The approach of the appeal judges and law lords is somewhat surprising. Lord Woolf, (whose report was the cause of the radical reform of the civil justice system), and his peers are willing to allow experts whose evidence may be influenced whether intentionally or not, by their clients interests or even their own to give evidence in court. However, the case of Liverpool Roman Catholic Archdiocese Trustees Incorporated [2001] [16] demonstrates that judges are not willing to ‘turn a blind eye’ when an expert makes it clear in his evidence that impartiality may be an issue. In this case the defendant wished to rely on the expert evidence of another tax barrister from the same set of chambers, who was a friend of many years. In his proposed report, the expert stated that whilst he did not believe his relationship with the defendant would affect his evidence, he accepted that his personal sympathies were engaged to a greater degree than would probably be normal with an expert witness. His evidence was subsequently rejected on the basis that he had rendered his own evidence as unacceptable. Mr Justice Evans-Lombe commented that “justice must be seen to be done as well as done."

The case law reflects a lenient approach towards the impartiality of experts and at times it appears that experts can get away with paying lip service to their “duty to the court". Judges must exercise a balancing act to ensure that evidence that will assist the court is adduced appropriately.

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