Construction professionals who act as expert witnesses can no longer be paid on a contingency-fee basis, except in very rare circumstances, under new legal guidance issued by the Civil Justice Council (CJC).
In its revision of Guidance for the Instruction of Experts to give Evidence in Civil Claims, the CJC moves to clarify the guidelines for the use of expert witnesses so that solicitors appointing them can no longer influence their independence and impartiality. The thrust of the guidance is that expert witnesses owe a duty to the judge, not to their client, and cannot be used as an adversarial tool.
Contingency fees – where the expert is told by an appointing solicitor that the fee depends on winning the case – has been viewed with suspicion by the judiciary for some time.
The revised guidance was produced in light of the findings of the Jackson Review and the decision in Factortame (No 8) [2003] QB 381. In future, all experts must demonstrate to instructing solicitors that they comply with and have a full understanding of Part 35 of the CPR, Practice Direction 35, the revised guidance and the practice direction on pre-action-conduct.
Mark Solon, managing director of legal training consultancy Bond Solon, commented: “Expert witnesses play a vital role in litigation but solicitors must instruct them properly or risk serious consequences.
“Lord Woolf has been highly critical of the expert witness ‘industry’ that has developed with experts acting as solicitors’ ‘hired guns’.
“It has come up repeatedly at our expert witness conferences that, while there may not be an express demand by the instructing solicitor to be unhelpful in discussions or to hold back ammunition, there is a sub-text that you won’t get another case so the expert becomes a closet hired gun.”
Solon said that in future, “it is no longer any good for the solicitor to say to an expert ‘Please do a report’.” The expert must be properly instructed, properly prepared for discussions with other experts and properly prepared for potential oral evidence.
“Solicitors should make sure their experts know how to construct a court compliant report,” added Solon. “There is always a danger that if the expert is a ‘litigation expert’, they may produce a half-baked report. If the solicitor tells them how to rewrite it, the expert may be asked under cross-examination ‘Why did you say that?’ and they reply ‘Because my solicitor told me to put it in’, then their credibility goes.
Full details on this revised Guidance will be discussed at a conference organised by Bond Solon on 9 November.
