In this first of two articles, Jonathan Karas KC, Oliver Radley-Gardner KC and Professor Graham Chase consider the extent to which lawyers and expert witnesses are constrained by the Civil Procedure Rules in how they work together.
In National Justice Compania Naviera SA v Prudential Assurance Co Ltd ‘Ikarian Reefer’ [1993] 2 EGLR 183, Mr Justice Cresswell said: ‘Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.”
No one can disagree with this bald statement but, as Lord Neuberger has observed, “expert witnesses have been called to deal with an almost countless variety of issues in an almost countless number of cases”. It is not surprising, therefore, that such a bald statement is difficult to apply to every context.
The bald statement and its influence on the restrictions in the Civil Procedure Rules make sense where an expert does not need to engage with statutory or contractual provisions. Where property is to be valued in accordance with a contractual or statutory formula, or where the question is whether property is in a condition required by a contract or statute, the exercise to be undertaken by the expert involves the understanding of and application of legal tests. Dialogue with lawyers is inevitable.
So, Mr Justice Cresswell maxim is impossible to apply if it is read as suggesting that lawyers should have no influence on the experts’ reports in this context.
In this first article, we explain why case law properly understood does not apply a blanket restriction on the dialogue between lawyer and expert. In the next article we will examine the CPR in more detail and point to an over-restrictive approach taken in the practice directions on joint statements.
The exercise of expertise in the property law context
In much litigation, the question for an expert does not depend on legal matters at all. Why did car A collide with car B? Did exposure to substance X cause medical condition Y? Why did the ship sink? Here, lawyers have no substantive role in the expert’s approach beyond formulating the question for the expert.
The sort of questions on which surveyors and other experts are asked to express opinions in most property cases are different. These are some examples.
First, a question is underpinned by interpretation of a contractual document or statute. What is the “market value”? What are the “premises” to be valued? What are the consequences of assumptions and disregards? In theory, it might be possible for lawyers to instruct the experts explaining the interpretations which should be employed.
In practice, the experts have their own understanding of what is entailed by contractual or statutory material with which they regularly work. This will inform their approach, and dialogue between lawyers and experts is helpful and inevitable.
Secondly, in valuation cases, the expert’s view may depend on “comparable” transactions. Unless agreed, such transactions need to be proved by evidence. What evidence is admissible is a question of law.
So, lawyers must consider whether it would be proportionate to prove the comparable (possibly with satellite applications disclosure, etc) or whether the expert should be asked to express a view without regard to the comparable. It is hard to see how this question can be answered without discussion with the expert about the consequences for the expert’s ultimate view.
Thirdly, in dilapidations cases, experts do not simply collate factual material about the in-repair and out-of-repair condition of premises, and then mechanically allocate items in a schedule.
They examine the available factual material through the legal lens of the lease provisions. The experts have their own understanding of the terms employed in covenants and how they are used.
Again, in practice, a dialogue will be entered about the meaning of the covenants and their application. It makes little sense to expect the experts to ignore their understanding of the consequences of differing interpretations and it also makes little sense to expect the lawyers not to guide the experts about interpretation.
In each of these instances, lawyer input will influence the form and content of the experts’ reports.
The case law
In our view, the case law does not exclude dialogue between lawyers and surveyor experts in this sort of case and such dialogue will inevitably have influence on the form and content of the experts’ reports.
It is important, however, for lawyers and experts to be circumspect in how that dialogue is conducted and to understand the constraints on the role of each. In broad terms one can identify two “orthodox rules” which constrain the preparation of expert evidence.
Orthodox rule 1: Experts and questions of law
The orthodox position is that expert evidence on an issue is only required if it is properly one of expertise, and if the judge feels unable to decide the matter without the help of an expert: United Bank of Kuwait Plc v Prudential Property Services Ltd [1995] EGCS 190. This restriction is reflected in Part 35 of the Civil Procedure Rules.
It follows that, in general, experts should not give their opinion on questions of construction of statute or contract at all. There are two reasons for this.
First, these are matters of law, and are therefore properly a matter for the expertise of the judge: R v B [2018] EWCA Crim 73. The only exceptions to that rule are (i) expert evidence on foreign law, and (ii) expert evidence if a word or phrase bears a particular meaning in a particular field: Harding v Hayes [1974] Crim LR 712 DC.
Secondly, it is for the court to determine “the ultimate question” (ie finally resolve the dispute), even if experts can opine on it: Pora v R [2015] UKPC 9.
Experts expressing conclusions on points of law can sometimes offend that principle, usurping the position of the court as the ultimate decision-maker.
So, unless the expert is called on to give expert evidence of a term of art (which might be within the scope of expert evidence) the opinion of an expert on the meaning of words is not properly a subject of evidence (just as the personal opinion of an advocate is neither here nor there to exercise being undertaken by the court).
On the other hand, this does not mean that the experts are precluded (a) from explaining the legal basis and assumptions which underpin their evidence (indeed, in many cases they will have a duty to explain this if their evidence is to be understood) nor (b) from discussing the correct legal approach with the legal team of the party on whose behalf they have been called to give evidence.
Orthodox rule 2: Lawyer involvement in expert evidence
The overriding duty of the expert is to the court and “expert evidence should be the product of the expert uninfluenced by the pressures of litigation” (CPR 35.3 and PD 35). This encapsulates the judicial expression of this principle summarised by Mr Justice Cresswell in Ikarian Reefer.
The pithiness of the statement conceals a more nuanced position. That expert evidence is uninfluenced by the pressures or exigencies of litigation does not preclude all dialogue with and influence by lawyers.
The line between lawyer and expert is not as bright and impermeable as Mr Justice Cresswell’s summary (translated into the CPR) suggests. As we have explained, in the context with which we are dealing, some lawyer involvement is inevitable, not only at the point of instruction of the expert, but during the process of formulation of the expert’s opinion.
The requirement that expert evidence be uninfluenced by the “exigencies of litigation” derives from the judgment of Lord Wilberforce in Whitehouse v Jordan [1981] 1 WLR. 246.
What Lord Wilberforce actually said was that: “…while some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation” [emphasis added].
A similar lesson can be drawn from Australia. In New Aim Pty Ltd v Leung [2023] 410 ALR190, the question before the Federal Court of Appeal was whether the trial judge had been right to exclude the evidence of an expert witness in a breach of confidence and misuse of information claim.
Expert evidence was required to explain certain business practices of the Chinese goods industry. The expert made appropriate declarations and was independent of the party calling her.
She was, however, based in China, and sent over various documents (including existing speaking notes she had already made) on the subject, and lawyers in Australia then worked that material into an expert’s report. Once the report was written, a letter of instruction was generated. The question was whether the report could be admitted as evidence, given how it came to be prepared.
As a matter of Australian law, it was observed by the Federal Court that there was no “one size fits all” rule for experts when it came to the degree of assistance from legal professionals that could be given to an expert. At one extreme (such as a medical professional giving their views), one might expect the degree of legal involvement to be next to nothing apart from formulating the instructions and ensuring that the report complies with the applicable procedural rules.
At the other end of the spectrum, the court observed: “[a] number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties.
Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is.
Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.”
Although not directly concerned with lawyer involvement in the legal aspects of the report, we consider that those observations illuminate the limits of lawyer involvement insofar as an expert report raises points of law.
It does not, therefore, appear that lawyer involvement is confined to asking the initial question – “some degree of consultation between experts and legal advisers is entirely proper”. Such consultation would, for instance, be proper where questions of legal relevance and admissibility are concerned as well as on the legal interpretation of words.
Such lawyer involvement reinforces, rather than detracts from, the primary duty of the expert to the tribunal or court.
Jonathan Karas KC and Oliver Radley-Gardner KC are barristers at Falcon Chambers, and Professor Graham Chase is a senior surveyor at CSC LLP
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