The CPR Compliant Expert Presentation to RICS North East Region CPD day: 27 February 2001

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The CPR Compliant Expert(Presentation to RICS
North East Region CPD day 27 February 2001)

• Iain M. Tolmie
• FBCS FRSA MIMgt MAE MEWI MCIArb
• Practising Expert Witness, Mediator Arbitrator
• Member of Executive Committee - Academy of
  Experts
• Tel [phone] E-mail it_at_ResolveIT.co.uk
• http//www.resolveit.co.uk

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Health Warning

• I teach on a full day Academy of Experts course
  on this subject!
• This is a very fast canter through a complex and
  changing subject area, too little to safely rely
  on
• DONT assume you can get by on what you know
• The new CPR and especially any time limits within
  them are being RIGIDLY enforced
• There are traps for the unwary

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Woolf Report and Subsequent Reforms

• Identified that Civil Justice failing the
  customer
• Misuse of courts where ADR would have got quicker
  or cheaper results
• delays
• time to get action to court too long
• lack of control over timetable - use of delaying
  tactics to increase costs
• costs
• Discovery out of proportion and very costly
• Experts too expensive and often used where not
  required

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Civil Justice Changes

• New era with new Civil Procedure Rules and
  Practice Directions as from 26th April 1999
• CPR Part 1 changes role and responsibility of
  judges
• New pre-action protocols to drive appropriate
  behaviour pre-action - penalties in costs
• A key objective is to - reduce the adversarial
  nature of the process (seriously!)
• Strict timetables set out in Rules for many
  actions

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CPR Main procedural points

• Largely (but not wholly) replaces old rules of
  Supreme or County Courts
• Under constant revision (now on issue 21 - 22
  tomorrow)
• Becoming a single codified source (RSC, CCR
  reducing)
• Plain English - removes Latin terms and
  lawyerspeak - though some terms still
  non-obvious
• Provides new process including pre-action
  protocols
• Seeks to control costs - reduced disclosure,
  experts

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Front Loading the timetable

• New Rules have emphasised party reasonableness
  pre-action, with penalties for non-compliance
• Experts will get called in earlier to identify
  issues
• Emphasis on settlement or ADR early in process
• Result is solicitors try to keep case away from
  court as long as possible for adequate
  preparation
• Expert can get caught in becoming too committed
  to own side with earlier involvement (duty to
  court)

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CPR and Experts Part 35 and PDP 35

• An aim of CPR (and CPR Part 35 especially) is to
  dispense with expert evidence unless
  unavoidable!!!
• Each aspect of procedure has a set of rules and
  an associated practice direction
• Part 35 concerns Experts and Assessors
• Contains many real departures - emphasises that
• Judge has power to limit (even refuse) expert
  evidence
• Expert has overriding duty to the court

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CPR Part 35 Major procedural points

• Party has to ask permission to use expert
• Expert is one who has been instructed to give or
  prepare evidence - contrast expert advisor
• Court may direct use of ONE expert between the
  parties (Single Joint Expert) - unusual in major
  cases
• Parties can use advisors or other Experts - but
  probably wont get costs
• Variations in Commercial Court and some others

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Tests for requirement for Expert

• Restrict appointment to those cases where
  expertise is needed to
• define and agree issues
• assist evaluation of the merits
• help quantify or assess sum in dispute
• identify appropriate basis for early and fair
  settlement
• Parties are encouraged to consider using a
  Single Joint Expert

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Duties of an Expert

• To be impartial and independent - not advocate
• Confine opinions to material matters
• Restrict opinions to his strict area of
  expertise, qualify opinion if necessary (unsure,
  no data etc.)
• Address all material facts
• Detail tests or source texts relied upon
• If tests or research not done by him say by whom
  and what qualifications they have

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Experts responsibilities

• To help court
• To restrict evidence to that reasonably
  required
• Provide a report in writing
• include declaration of compliance with CPR
• include statement of truth
• Disclose his instructions (in general terms)
• potentially can be cross examined upon his
  instructions

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Involvement in the case

• Comply with court timetable
• Need to keep eye on necessary disclosure
• Maintain proportionality - i.e. have an eye to
  potential costs of his actions or requests for
  docs.
• Attend discussion(s) between Experts as directed
• Respond to written questions (time, cost)
• Ability to request documents (time, cost)
• Ability to request directions from the court

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Written Questions to Experts

• New power for parties to ask expert directly
• within 28 days of report
• only for purpose of clarifying his report
• once only (unless directed by court or agreed by
  parties)
• Need to take care
• of time limits
• of proportionality
• of who is paying

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Discussions Between Experts

• Old Meetings of Experts from Official Referees
  courts now for everybody becoming more frequent
• The court may direct at any time a discussion to
• identify the issues in the proceedings and
• where possible, reach agreement on an issue
• Be careful to note the difference between court
  ordered discussions per CPR Part 35 and party
  agreed meetings - different rules and approaches

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Single Joint Expert

• An innovation designed to reduce costs
• One person jointly appointed (with court
  approval)
• May receive instructions from all parties
• instructions may conflict or ask him to assume
  different facts - impacts on report
• one or more party(ies) may not give any
  instructions
• A lonely position with no friends!

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Problems for the SJE

• Need for impartiality paramount
• Cannot meet one party without the others
• Court has power to set total remuneration
• this may limit work that can be done
• Expert may NOT take more for any party
• SJE can ask court for directions - but who pays?
• SJE is cross-examined by ALL parties - could be a
  bad day(s) in the witness box!!!!!

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Academy of Experts - Dos Donts

• Do NOT think that CPR will not be strictly
  applied
• Do NOT think that time limits have ANY elasticity
• Do NOT think you can carry on as before CPR
• DO remember that solicitors will no longer be
  controllers of the case
• DO remember that the judge will Case Manage
• DO remember they intend to be tough enforcers
• DO remember Wasted Costs Orders