Instructing experts in civil claims: new guidance

Instructing experts in civil claims: new guidance

On 1 December 2014,  new ‘Guidance for the instruction of experts in civil claims 2014' ('the Guidance') replaces the current ‘Protocol for the Instruction of Experts to give Evidence in Civil Claims’ (‘the Protocol’), currently annexed to the practice direction to Part 35 of the CPR.

It is intended to help litigants, expert witnesses and those instructing experts to understand best practice in complying with Part 35 of the Civil Procedure Rules (CPR) and court orders, the overriding objective in Part 1 of the CPR and other relevant provisions.

What is changing?

It seems the Guidance is being introduced to better reflect the letter and spirit of the April 2013 Jackson Reforms, focusing on the changes those reforms introduced to case and costs management generally and to expert evidence specifically.

There also seems to be a subtle change in the language of the Guidance suggesting litigants, experts and those instructing experts should pay closer attention to ensuring they only instruct an expert where this is necessary, that the expert they do instruct is suitable and that any expert is given (on an ongoing basis) all the documents and information they need to be able to provide their expert opinion and be able to comply with any case and/or costs management obligations and directions. There also seems to be a strong desire and need for the experts to be working from the same information.

What does this mean for me?

The Guidance seems to put more of an onus on instructing solicitors to be more and constantly mindful of ensuring their expert has everything they need. They will also need to evaluate, in relation to each development in the case, whether the expert should be notified. New obligations on solicitors are also introduced, including notifying experts of the conclusion of the case and in relation to the filed and served status of documents relied on by experts in their reports.

It also provides useful guidance on issues such as the instructions to be given to an expert, factors to be borne in mind if thinking of using your expert advisor to act as your expert witness and the contingent payment of experts.

It remains to be seen whether, in reality, the Guidance fundamentally changes the way in which practitioners instruct their experts.

Further reading

LexisPSL Dispute Resolution subscribers can find more detail on the differences between the provisions within the current Protocol and those due to be introduced in December under the Guidance, including ‘new’ obligations for instructing solicitors and the experts themselves in our practice note CJC publishes guidance on instructing experts in civil claims.

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About the author:

Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.

Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.

In practice, Virginia acted in a variety of general commercial disputes covering areas including  intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.

Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.