What is the court’s expectation of doctors?

British Medical Association 17 November 2006

Civil Claims

Protocol for the Instruction of Experts to give evidence in civil claims

Available at www.civiljusticecouncil.gov.uk/914.htm

or www.dca.gov.uk/civil/procrules_fin/contents/pract ice_directions/pd_part35.htm#IDA1LBQD

Aims of Protocol

• guidance to experts and to those instructing them; • to further the objectives of the Civil Procedure Rules in general; • assist in the interpretation of CPRs; • standards for the use of expert, conduct of experts and those who instruct them.

The PD on Protocols

• encourage the exchange of early and full information about the expert issues; • enable the parties to avoid or reduce the scope of litigation by agreeing expert issues before commencement of proceedings; and • support the efficient management of proceedings.

Application

• to any steps taken for the purpose of civil proceedings by experts after implementation – i.e. June 2005 • to all experts who are, or who may be, governed by CPR Part 35 and to those who instruct them - but not where instructed only to advise

Limitation

• If, as a result of complying with any part of this Protocol, claims would or might be time barred under any provision in the Limitation Act 1980, or any other legislation that imposes a time limit for the bringing an action, claimants may commence proceedings without complying with this Protocol.

Duties of experts

• duty to exercise reasonable skill and care to those instructing them; • duty to comply with any relevant professional code of ethics; • overriding duty to help the court on matters within their expertise (CPR 35.3); BUT • not to act as mediators between the parties

Duties of experts

• independence and transparency • confine their opinions to matters which are material to the disputes between the parties and provide opinions only in relation to matters which lie within their expertise • inform those instructing them without delay of any change in their opinions

Duties of experts

• avoid excessive delay •

Phillips v Symes

[2004] EWHC 2330 (Ch)

The need for experts

• is it relevant to a matter in dispute?

• is it reasonably required?

• does the expert have relevant expertise?

• does the expert have the experience, expertise and training appropriate to the value and importance of the case?

• can objects be achieved by appointing SJE?

Terms of appointment

• capacity • services required • time for delivery of the report; • basis of the expert’s charges; • time for making the payment; • whether fees are to be paid by a third party.

• whether party is publicly funded

Conditional and Contingency Fees

Payments contingent upon the nature of the expert evidence given in legal proceedings, or upon the outcome of a case, must not be offered or accepted.

Need for Clear Instructions

• basic information; • the purpose and principal known issues; • statement(s) of case (if any) • an outline programme • dates of any hearings • name of the court • claim number and track

Experts’ acceptance of instructions

• Experts should confirm without delay whether they accept instructions; & whether • instructions are not acceptable; • instructions are insufficient; • they cannot fulfil terms of appointment; • in conflict with their duties as an expert; or • cannot comply with orders made.

Withdrawal

Experts should not withdraw without first discussing the position fully with those who instruct them and considering carefully whether it would be more appropriate to make a written request for directions from the court. If experts do withdraw, they must give formal written notice to those instructing them.

Right to ask court for directions

• CPR 35.14; but • discuss first • contents of letter requesting directions

Contents of experts’ reports

Experts should maintain professional objectivity and impartiality at all times.

Experts’ reports

•PD 35, para 2 •addressed to the court •statement of truth

Contents of experts’ reports

• Qualifications • Tests • Reliance on the work of others • Facts and opinions • Range of opinion • Conclusions • Basis of report: material instructions

After receipt of report

• those instructing should advise experts if the report will be disclosed and date of actual disclosure; • give opportunity to consider and comment upon other reports; • keep experts informed of the progress of cases

Criminal cases

R v Ward

• It is the duty of an expert instructed by the prosecution to act in the cause of justice.

• Duty to disclose any test which casts doubt on the expert’s opinion.

• Duty exists irrespective of any request by defence

R v Harris

[2005] EWCA Crim 1980

• Confirmation that the

Ikarian Reefer

and

re AB

principles apply equally in criminal cases • “If this guidance is borne in mind and the directions made are clear and adhered to, it ought to be possible to narrow the areas of dispute before trial and limit the volume of expert evidence which the jury will have to consider.”

R v Bowman

(2006) Times March 24 Contents of reports

• 1. Details of the expert's relevant academic and professional qualifications, experience and accreditation and any limitations upon the expertise.

• 2. The substance of all material instructions received (whether written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions.

• 3. Information relating to who has carried out measurements, examinations, tests etc.

• 4. Where there is a range of opinion, a summary of the range of opinion and the reasons for the opinion given.

Contents of reports (cont.)

• 5. Relevant extracts of literature which might assist court.

• 6. A statement that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgment that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues.

R v Allsop

• Expert objected to disclosing his database because it contained “material which was sensitive from a commercial point of view”.

• “No witness, expert or otherwise is entitled to keep secret relevant information on the basis that it is confidential to him or his business. If it is relevant to the issues and, in the case of an expert, forms the basis or part of the basis for his opinion in our judgment it must be disclosed.” (Gage LJ).