Civil Justice Council Guidance for the instruction of experts in civil claims (August 2014)            

This assists experts, litigants and those instructing experts, to understand best practice in complying with Part 35 of the Civil Procedure Rules (CPR 35) and court orders. It requires experts and those who instruct them to familiarise themselves with the Practice Direction for Experts and Assessors (PD35).

Experts must also apply the Pre‐Action Protocols to:

a. Encourage the exchange of early and full information about the expert issues involved in the prospective claim;

b. Enable the parties to avoid or reduce the scope of the litigation by agreeing the whole or part of an expert issue before proceedings are started; and

c. Support the efficient management of proceedings where litigation cannot be avoided.

Attention is drawn to the paragraphs 9 to 15, which deal with the duties and obligations of experts:

9. 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. Experts must not serve the exclusive interest of those who retain them.

10. Experts should be aware of the overriding objective that courts deal with cases justly and that they are under an obligation to assist the court in this respect. This includes dealing with cases proportionately (keeping the work and costs in proportion to the value and importance of the case to the parties), expeditiously and fairly.

11. Experts must provide opinions that are independent, regardless of the pressures of litigation. A useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by another party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates or mediators.

12. Experts should confine their opinions to matters which are material to the disputes and provide opinions only in relation to matters which lie within their expertise. Experts should indicate without delay where particular questions or issues fall outside their expertise.

13. Experts should take into account all material facts before them. Their reports should set out those facts and any literature or material on which they have relied in forming their opinions. They should indicate if an opinion is provisional, or qualified, or where they consider that further information is required or if, for any other reason, they are not satisfied that an opinion can be expressed finally and without qualification.