So what can lawyers and experts learn from this case?
They all failed (i) to contain a statement that the expert understood his or her duty to the Court and had complied with that duty; (ii) to state that the expert was aware of the requirements of CPR Part 35, the Practice Direction and the Guidance for the Instruction of Experts in Civil Claims 2014; and (iii) to provide a statement of truth in the terms required by paragraph 3.3 of the Practice Direction. The learned Judge was “extremely surprised, to say the least”, that not only had the solicitors failed to maintain appropriate levels of supervision and control over FST's experts, but it also appeared: “not to have explained their duties to them or to have ensured basic levels of compliance with the requirements of the CPR.” As basic as these failures were, there are important lessons here for all legal advisers and experts alike. It is necessary but not sufficient merely to remind experts by their instructions of their duties to the court as set out in CPR Part 35 and the Practice Direction thereunder and also, the relevant Court Guide. It is also essential for solicitors (not their clients) to supervise and control as necessary the conduct of the experts’ investigations, and in particular to act as a ‘gate keeper’ in regard to the flow of information and documents to the experts, and to be fully aware of and control what is being considered.
First, it should not be assumed that experts (whether based in the UK or other jurisdictions) necessarily know of or fully understand their duty to the court under our legal system. Therefore as a minimum they should be provided with a copy of CPR Part 35 and the relevant Practice Direction(s) and Court Guides and the basic principles of independence and their duty to the court impressed upon them in the letter of instruction and at the first meeting. Clients should also be made aware of these duties and the rules and guidance. The Ikarian Reefer[2] remains a good starting point for an understanding of the expert’s duties. Second, lawyers should ensure that both experts and client understand that whatever is supplied to and considered by the expert, must be referred to in the expert’s report and must be or be made available to the other parties and their experts and the court. All information and documents to be considered by the experts should be supplied to them by instructing solicitors rather than the client so that the solicitors can exercise their supervisory role. Third, any meetings or discussions between the client / witnesses and the experts and any tests that are conducted should be properly attended by instructing solicitors whose duty it is to regulate the flow of information, to ensure that what is to be taken into account is admissible. Consideration should be given as to whether the other party’s experts should be invited to witness tests. All meetings, attendances and tests should be minuted by the legal representative present.
[2] [1999] 2 All ER (Comm) 673
Made with FlippingBook Digital Proposal Creator