Experts play an important and unique role in the adversarial court process as they are required to provide an independent opinion uninfluenced as to form or content by the exigencies of litigation. The duties of the expert, in civil litigation, were amplified by Part 35 of the Civil Procedure Rules (CPR 35) which enumerates the role of the expert. One would have thought that there would, with the passing of CPR 35, have been little room for development on the role of expert witnesses in litigation. However, there have been a number of significant developments in the past year.
The Court in Alan Jackson v Marley Davenport Ltd  EWCA Civ 1225 considered the question of whether, if an expert makes an early report to his client before he makes the report which is later disclosed in the litigation as being the evidence he intends to give at trial, the law requires that earlier report to be disclosed. In that case, the Claimant’s solicitors instructed an expert witness who prepared a report for the purposes of a conference with lawyers. Thereafter he provided a further report which was served on the defendant and the court. The second report referred to the expert “having now gained additional information”. That indicated to the defendant’s solicitors that there was an earlier report and they sought disclosure of it believing that it might have expressed a somewhat different view to that in the report presented to the court.
At First Instance, the Court ordered disclosure on the basis that the expert had to comply with CPR 35.10 (3) which provides:
“The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.”
The Court of Appeal, however overturned that decision on the basis that draft expert reports were protected by litigation privilege. The Court held that the reference in Rule 35.10 to “the expert’s report” is a reference to the expert’s intended evidence, not the earlier and privileged draft reports.
The Court also considered CPR 35.13 which provides:
“A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.”
The Court said that merely provided that a report cannot be relied on at trial unless it is first disclosed, nor may an expert give oral evidence without first producing a report, unless the court otherwise orders. It did not mean that earlier draft reports have to be disclosed.
This decision provides solicitors and experts with some comfort that they can discuss earlier draft reports with frankness in the knowledge that the draft reports are protected from disclosure. However, as the case below demonstrates the expert’s fundamental duty is to the Court and he must not allow himself to be partisan or to be unreasonably swayed by the instructing client.
Flagrant Beach of Duty
The case of Jonathan Guy Phillips and others v Robin James Symes and others  EWCA Civ 1512 in October 2004 has caused much consternation amongst expert witnesses. For the first time, the Court held that it had the power to order costs against an expert who, by his evidence, caused significant expense to be incurred, and did so with flagrant reckless disregard to his duties to the Court.
In that case, the trial the judge rejected the evidence of the Respondent’s expert as unreliable. The Claimants thus sought to join the expert to the proceedings for the purposes of costs. It was alleged that the expert:
formed his opinion on an inadequate basis having not considered all relevant factual material;
refused to reconsider his opinion in light of further material sent to him or even to look at the material despite its relevance to the matters under consideration;
in verifying his report he failed to act in accordance with the declarations required under CPR 35; and
assumed a role as an advocate for those instructing him.
The court accepted that the normal rule is that witnesses in court proceedings enjoy immunity from any civil proceedings in respect of evidence given during those proceedings because witnesses needed to be able to give their evidence fearlessly. The court, however, said that the immunity, albeit paramount, was not absolute and concluded that in appropriate circumstances a third party costs order can be brought against an expert witness as a result of the manner in which he gave evidence as a witness.
The Court considered the other sanctions available where the expert flagrantly disregarded his duty to the Court. Firstly, the expert may be in contempt of court or guilty of perjury. Secondly, that the experts costs could be disallowed either as between their client and another party to the litigation, or between a client and the expert. Thirdly, they could be referred to an appropriate professional body for disciplinary action. The Court, however, considered these sanctions to be “blunt instruments” and said the proper sanction was to order the expert to compensate the person who has suffered loss by reason of that evidence. For such a costs order to be made against an expert must be more than negligent. Rather, a gross dereliction of duty or recklessness is needed.
The case highlights the needs for experts to provide considered, objective opinions. Experts must assist the Court and in so doing must not be partisan or act like “hired guns”.
The Criminal Procedure Rules 2005
Part 33 of the Criminal Procedure Rules 2005 dealing with expert evidence is still to be published. Some commentators consider that the rules may be similar to CPR 35. In any event, the Courts overriding objective, under Rule 1.1, is to deal with cases justly and Rule 1.2 requires all participants to further that objective. Under S.93 of the Courts Act 2003, the Court can make a third party costs order, which would include an expert witness, if that party has been guilty of gross misconduct.
Recent cases show that the role of expert witnesses will be under constant scrutiny. The decision that drafts reports are privileged and should not be disclosed is to be welcomed as it allows experts to fully consider the case and prepare drafts for discussion without fear that their earlier reports will come back to haunt them. However, experts must remember that their duty is to the Court. They are quasi Court Officer’s. Experts now carry the cost of disregarding their duties to the Court and to the fair administration of justice. Should an expert find himself in any difficulty with his client he would be well advised to seek directions from the Court.
Tom Stocker, Associate, Regulatory Department, Eversheds LLP