The passage of time is a peculiar thing… one moment, you're receiving your national insurance number in the post; and the next, you have 20+ years' experience in a field that, all too often, chose you, rather than the other way around.
An email might also arrive out of the blue from solicitors, asking whether you can provide an independent opinion on a dispute. Perhaps you can; and there's no conflict of interest preventing you from doing so.
Suddenly: you're an expert. But what does that mean?
For once, the answers are clear, if not always easy to find. As a result, the extent to which any individual expert witness will truly understand and discharge their obligations can depend upon the quality of the instruction from the retaining lawyers along with the expert's own research, or prior experience of having taken on the role. However even the most experienced experts can sometimes fall foul of their obligations. Going back to first principles is always useful.
The duties of the role differ a little as between "Skilled" Witnesses in Scotland versus "Expert" Witnesses in England & Wales, but the guiding principles are the same, based upon a shipping case from 1993 known as the Ikarian Reefer. As you might guess, the name refers to a vessel, which ran aground and caught fire before being abandoned off the coast of Sierra Leone. The court was concerned with whether the loss of the vessel was unfortunate or deliberate. Lots of expert evidence was put before the court and the judge was critical of several of the expert witnesses, developing a number of guiding principles that ought to have been followed.
The Ikarian Reefer Principles
These Principles have since been largely enshrined in the Civil Procedure Rules (CPR) which apply in England & Wales; and while they aren't formalised in the Scots courts rules, they have been endorsed by the Supreme Court as applying in Scotland. In summary, they require that expert evidence is:
- independent, uninfluenced, objective and unbiased
- within the individual's expertise, with any questions falling beyond that clearly identified
In addition, the Principles require that any insufficiency of data supplied to the expert should be made clear, stating that any resulting views are provisional; and that should the expert later have any change in opinion, that should be communicated without delay. Experts should also never assume the role of an advocate: they're not there to try and "win" the case for one of the parties, but to assist the decision maker (in court, the judge).
The lawyers who instruct the expert also have specific responsibilities in terms of the Principles: namely to provide any evidence referred to in an expert report at the same time as its disclosure; and to alert the court promptly to any changes of view reported by their expert. Instructing lawyers also enjoy a wide variety of other relevant responsibilities, arising from their own professional and regulatory frameworks.
Are there any other requirements for an expert to worry about?
If there was any remaining room for doubt on the rule against an expert advocating for a party, the CPR in England & Wales explicitly states that an expert's duty to the court overrides any obligation they have to the parties or lawyers instructing them. This overriding obligation undoubtedly also applies to skilled witnesses giving evidence in Scottish cases, despite not being expressly set out in the relevant court rules. It is however clear in both (and indeed most) jurisdictions that an expert's role is to assist the court. In short, there is no room for a "hired gun".
The CPR also allows for parties in England & Wales to submit written questions to their opponent's expert: something that might be achieved in Scotland via bespoke case management directions in certain types of court procedure, or perhaps by asking politely - depending upon the nature of the questions and the likely answer.
The most significant practical difference between regimes is probably the CPR requirement in England & Wales that the expert report states the substance of the instructions given to the expert. While skilled witnesses who adopt good practice in Scottish cases will usually adopt a similar approach, this detail is sometimes omitted; and if so, that can lead to serious doubts about the opinion evidence, or at least why the expert reached the view that they did.
Traps for the unwary
There is little doubt that it is flattering to be asked to act as an expert or skilled witness: often it is a great compliment following decades of hard work in acquiring the expertise called upon. However, such witnesses can sometimes be subject to scathing criticism from the courts, on issues ranging from the quality of their written report to serious questions impinging upon their integrity.
Any professional invited to act as an expert or skilled witness should be reminded that being called as a witness to assist the court is a serious undertaking, which can attract a degree of risk. In certain circumstances, they may be held liable for costs and do not necessarily enjoy immunity from civil proceedings. As such, they should take steps to identify and understand the obligations imposed upon expert or skilled witnesses.
Help is on hand
Professionals acting as expert or skilled witnesses, and who may be called to court, should bear in in mind that:
• the instructing lawyer should provide information about the applicable regime (though they will not be able to give a prospective expert any advice);
• many professional organisations also publish guidance for their members and should be able to assist;
• the Civil Justice Council in England also publishes Guidance for the Instruction of Experts in Civil Claims, albeit that is designed for those assisting courts in England & Wales; and
• anyone contemplating giving opinion evidence in Scotland should be familiar with the Supreme Court judgment in Kennedy v Cordia LLP.
For further information about professional duties or risks, please get in touch with our specialist professional liability experts below or your usual Brodies contact.
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