The Civil Justice Council has published revised guidance for the instruction of experts to give evidence in civil claims. The new guidance, which replaces the June 2005 protocol, will be considered by the Civil Procedure Rule Committee and is expected to be annexed to the relevant Practice Direction (PD35) in due course.
There is little difference in substance from the previous version of the guidance. As before, it does not apply to experts who are instructed only to advise, rather than to prepare evidence for use in proceedings, but does apply if an advisory expert is later instructed for the purposes of the proceedings. A few points that are new include:
- The new guidance states that where an advisory expert is later approached to act as an expert witness “they will need to give careful consideration as to whether they can accept a role as expert witness” bearing in mind the need to ensure there is no conflict between their advisory role and their duties to the court as an expert in proceedings.
- It requires that the experts’ joint statement should include an express statement that the experts have not been instructed to avoid reaching agreement on any matter within their competence.
- The new guidance notes that the court may require experts to provide an estimate of their charges (see post), and that the expert’s fees and expenses may be limited by the court.
- It states that those instructing experts should seek to agree, where possible, the details of the instructions for the experts, which should include any difference in the factual material that is to be considered by the experts. The previous guidance included such a provision for parties instructing a single joint expert, but not where separate experts were instructed.
- There are specific provisions relating to the sequential exchange of expert reports, for example to clarify that in such cases the defendant’s expert’s report should seek to focus only on material areas of difference with the claimant’s expert’s opinion.
As in the previous version of the guidance, there is an express prohibition on retaining experts under conditional fee or contingency fee agreements, as this may compromise the fundamental requirement of independence and objectivity.