Expert Evidence: The English Courts Send A Message To Experts (And Their Instructing Solicitors)

• Published date: 14 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Civil Law
• Law Firm: Fenwick Elliott LLP
• Author: Huw Wilkins

Expert evidence can be crucial to the success, or failure, of a construction dispute; for example, a case can turn on a judge's preference for one expert's delay analysis over the other. Consequently, as Huw Wilkins explains, it is important that experts, as well as instructing solicitors and clients, understand the rules regulating expert evidence in dispute resolution procedures.

The Rules and Guidance

Part 35 of the Civil Procedure Rules deals with experts. Part 35.3 provides that an expert's duty is to help the court on matters within his or her expertise. That duty overrides any obligation to the person from whom an expert has received instructions or by whom the expert is paid. Part 35 also includes (for example) rules about the contents of an expert's report. Practice Direction 35 provides further detailed rules as to the conduct of experts and those instructing them. At the forefront of those rules are that:

• experts should assist the court by providing objective unbiased opinions on matters within their expertise, and should not assume the role of an advocate (Part 2.2);
• experts should consider all material facts, including those which might detract from their opinions (Part 2.3); and
• if, after producing a report, an expert's view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court (Part 2.5).

Further guidance is set out in the Guidance for the Instruction of Experts in Civil Claims 2014 and the relevant Court Guides (e.g. Section 13 of the TCC Guide), as well as the Academy of Experts and Expert Witness Institute Joint Code of Practice and any code from a relevant professional body.

Experienced experts will be familiar with the rules and guidance, but should nevertheless refresh their memories regularly. Those undertaking the role of an expert for the first time should review all the relevant guidance so that they understand what is expected of them from the outset.

There are also cases in which the court has been asked to, or has otherwise felt it appropriate to, comment on the conduct of experts and those instructing them. We now turn to some of the more recent examples of these cases.

Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd¹

Mr Justice Fraser dedicated a significant portion of his judgment in this case to his assessment of the parties' quantum experts, their role in the litigation process and their duties to the court. He said:

"The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal...