Expert Evidence

As we approach the final stages of our series of blog posts on Top Ten Tips on Managing a Civil or Commercial Dispute; where exactly does the role of an “Expert” fit in? This blog/post will explore the role of an “Expert” in a civil or commercial dispute.

What is an Expert?

Oxford dictionary definition: Expert: a person with special knowledge, skill or training in something.

Cambridge dictionary definition: Expert: a person having a high level of knowledge or skill in a particular subject or activity.

Court rules definition: Expert: “…  a person who has been instructed to give or prepare expert evidence for the purpose of proceedings”.

What is an Expert Witness?

Expert Witnesses are instructed to give or prepare expert evidence for the purpose of proceedings. Expert evidence is used to assist the Court when the case before it involves matters on which it does not have the requisite technical or specialist knowledge. The type of expert can vary depending on the facts of the case but common examples are accountants, surveyors and architects. Expert evidence is usually given by way of a written report but in some cases the expert will be required to give oral evidence at trial.

An expert’s duty is to help the Court achieve a fair outcome by giving opinion, which is objective and unbiased, in relation to matters within their expertise. This overrides any duty they have to the party from whom they receive payment and instruction. The Court rules are clear in that expert evidence is to be restricted to that which is reasonably required to resolve the dispute between the parties and that no party may call an expert or rely on an expert’s report without the court’s permission. The requirement for expert evidence will be considered by the Court at the Case Management Conference stage.

Single Joint Expert

A Single Joint Expert (SJE) is an expert instructed to prepare a report for the Court on behalf of two or more of the parties to the proceedings. The appointment of an SJE can be agreed to by both parties or ordered by the Court. Whilst it is believed that the appointment of an SJE will save costs (due to only having one expert instead of two), in reality it can increase costs where this has been imposed by a Court as each party may find that they still need to appoint their own private advisor in addition to the SJE to assist them in monitoring the work being carried out by the SJE.

Expert or Advisor?

A person with expertise may be engaged by a party as an expert Advisor or a formally appointed Expert Witness. An expert witness is different from an expert advisor, sometimes also known as an independent expert. An expert advisor advises a party on specialist or technical matters within their expertise at any stage of a problem, dispute or claim. They may also assist with evaluating and formulating the case, preparing witness statements and other matters.

Obtaining advice from an expert advisor at an early stage in proceedings can prevent a claim from progressing or being defended  and save the time and expense of a trial or the collapse of a case at trial.

The differences between an expert witness and an expert advisor are important in relation to the duties of an expert as well as to whether communications with them are subject to any privilege. There are complex rules and conflicting case law in this area so it is crucial to take legal advice on the circumstances when the instructions to an expert and the expert’s report(s) are disclosable and when they might be privileged.

Experts and Costs

Instructing an expert is expensive and as with all costs that are incurred as part of the litigation process, there is never any guarantee of recovering all of the fees paid to an expert even if you are ultimately successful at trial.

Here are our 10 Top Ten Tips on instructing and managing Experts:   

1. Be Pro Active:  Seek legal advice early on as to whether your dispute requires expert evidence.

2. Evaluate your Claim:  Work with your solicitor to understand why you need expert evidence; is it needed to prove that you have a claim or is it needed only to calculate the amount of your loss? (Does the expert evidence go to liability or quantum?).

3. Established Expert: It is always best to instruct a “tried and tested” expert. Our Dispute Management Team have good working relationships with experts in various fields. We also work with experts that have been suggested by clients in niche areas.  

4. Teamwork: Ensure that you provide your Advisor, Expert Witness or SJE with all the relevant information in a timely manner. This will allow them to provide you with an accurate fee estimate and timeframe for the report to be drafted and to comply with any Court deadlines.

5. To SJE or not to SJE? Take legal advice on whether to agree to the instruction of an SJE or not as this can save costs or increase costs depending on the facts of the case. On a higher value and more complex claim an SJE is unlikely to save costs.  

6. Disclosure: Remember that if you want your communication with an Expert Advisor and any report prepared by that Advisor to be privileged from disclosure, you should instruct solicitors and allow the solicitor to instruct the Expert so that the communication and documents exchanged are privileged.

7. Deadlines:  Liaise with your solicitor so you are aware of any deadlines and notify your solicitor of your holiday periods. This tip should indeed be borne in mind throughout the litigation process.

8. Mediator : If your dispute is destined for mediation then do bear in mind the expertise of the  Mediator. Will s/he understand the technical issues involved in the dispute ? You may need an expert to act as mediator.

9. Mediation: Do you need to instruct an Expert to assist with and possibly even attend the mediation? On a high value complex claim it is usually helpful to have your expert available at the mediation or by telephone to dela with any unexpected technical issues that may arise on the day.

10. CPR Part 35 Expert Witness: When you have reached the stage in court proceedings whereby you need to appoint an Expert Witness in accordance with Court rules you must remember that the duties of this Expert to the Court overrides any duty to you.

If you are in the midst of or are contemplating taking legal action in respect of a dispute, contact the Dispute Management team at Lupton Fawcett who will be happy to discuss your matter with you and advise you on the appropriate course of action to take.