New Guidance for the Instruction of Experts Issued by the Civil Justice Council

The Civil Justice Council has issued revised guidance for the instruction of experts Once the Guidance has been reviewed by the Civil Procedure Rule Committee it will be annexed to Practice Direction 35.

There are very few substantive changes to the Guidance. Changes include:

  • where proceedings have commenced the court now has the power under CPR 44 to impose sanctions. For example, cost penalties against those instructing the expert (including a wasted costs order) or on expert direct such as disallowance or reduction of the experts fee. It also may be the case that the expert’s report/evidence will be inadmissible. In more extreme cases, if the court has been misled it may invoke general powers for contempt in the face of the court. The court would then have the power to fine or imprison the wrongdoer.  If an expert commits perjury, criminal sanctions may follow.
  • 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”.
  • an experts’ joint statement must now include an express statement that the experts have not been instructed to avoid reaching agreement on any matter within their competence.
  • the court may require experts to provide an estimate of their charges , and that the expert’s fees and expenses may be limited by the court.
  • those instructing experts should seek to agree, where possible, the details of the instructions for the experts, and the factual material.
  • payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In Factortame, the court said ‘we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement’.

As anticipated, the Guidance reflects the more disciplinarian order of the post-Jackson era. The Guidance makes it clear, that if an expert fails to comply or has a negative impact on the litigation process then he/she can expect to face appropriate sanctions.

Sarah Wilkinson

About Sarah Wilkinson

Solicitor in the Insurance department
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