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Archive for January, 2015

One word: independence

A new year and a timely occasion to remind anyone involved in instructing or acting as an expert witness that the expert is to provide independent opinions on the matters within his/her expertise.  He/she is there to assist the judge and not to argue the instructing party’s case.  An expert witness can only be called to give evidence with the leave of the court.

Whilst there is nothing new in these principles, the Ministry of Justice re-issued Part 35 of the Civil Procedure Rules (relating to Experts and Assessors) in September 2014 and this month produced a newly drafted Practice Direction.  In addition to underlining the expert’s independence, the Ministry once again attempts to limit the occasions when oral expert evidence is given.  It re-states that matters requiring expert evidence should be dealt with by only one expert instructed by all parties (although parties usually seek directions enabling each to call an expert).  Part 35 states instructions to an expert witness are not privileged from disclosure.

Additionally, the new Part 35 Practice Direction refers to updated Guidance for the Instruction of Experts in Civil Claims to which experts and those instructing them should have regard.  Issued by the Civil Justice Clouncil in August 2014, it recognises that parties will often instruct an expert only to advise early in a dispute.  However, it emphasises that the Guidance applies to such experts later instructed as an expert witness to prepare or give evidence and again reminds readers “Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code.  However when they are instructed to give or prepare evidence for civil proceedings they have an overriding duty to help the court on matters within their expertise (CPR 35.3).  This duty overrides any obligation to the person instructing or paying them.”

Contact Hatherleigh Training if you wish to hear more.