In this second article, Jonathan Karas KC, Oliver Radley-Gardner KC and professor Graham Chase further consider the working relationship of lawyers and expert witnesses
As we explained last time, case law should not be read as providing a blanket “ban” on lawyer involvement in the production of expert evidence in the sorts of case in which surveyors are most often asked to give evidence. In such case, legal issues are intertwined with the exercise which the expert undertakes.
Experts’ reports
The Civil Procedure Rules and accompanying practice directions broadly follow the approach summarised by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd ‘Ikarian Reefer’ [1993] 2 EGLR 183, which we considered in part one. 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 PD35 at 2.1). As we have explained, this does not rule out appropriate dialogue between lawyer and expert. Apart from this bald statement taken from Ikarian Reefer, the CPR and the practice directions are silent about the precise extent of lawyer-expert discussions during the drafting of reports. This is inevitable. The propriety and extent of the dialogue between expert and lawyer will depend on the issues and the case. The CPR are not specifically directed to the sort of case with which we are dealing.
In part one, we explained how lawyer involvement within certain constraints is inevitable where the exercise to be conducted by the surveyor expert derives from documents such as statutes or contracts which themselves are the subject of interpretation. The CPR do not rule out lawyer involvement in the production of an expert’s reports within the limits which we have suggested. As we have explained, lawyers will inevitably be involved during the production of the report, as part of an iterative process, to help bring out the issues on which the court needs assistance. On the other hand, lawyers must ensure that the ultimate opinion expressed, and the basis for it, remains that of the expert (see Medimmune Ltd v Novartis [2011] EWHC 1669, Neurim Pharmaceuticals v Generics UK Ltd [2020] EWHC 3270 and Phipson on Evidence (20th edition)). While the ultimate report must be in the words, in the name, and express the true opinions of, the retained expert, it is permissible for there to be lawyer input in the report-writing stages within the constraints which we have considered. This is recognised in the Royal Institution of Chartered Surveyors’ practice statement and guidance note for Surveyors acting as expert witnesses (4th edition, amended February 2023) where the “principal message” advises the expert surveyor:
“Your primary duty as an expert witness is not to a client but to the tribunal where your expert witness report and evidence given:
- must be, and must be seen to be, your independent and unbiased product, and fall within your expertise, experience and knowledge;
- must state the main facts and assumptions it is based upon, and not omit material facts that might be relevant to your conclusions; and
- must be impartial and uninfluenced by those instructing or paying you to give the evidence.
…It will be necessary for surveyors to discuss with the client’s lawyers the applicability of both the procedures and principles in the practice statement and guidance note, as the local law and procedural rules may require the surveyor to take a different approach.”
Experts’ discussions and joint statements
On the other hand, CPR PD35, paragraph 9.4 states that inter-expert discussions must take place without the parties or legal representatives present, unless the court orders otherwise. If in attendance, the legal representatives may only answer questions they are asked or advise on the law, and the experts are allowed to exclude them from discussions (paragraph 9.5). It is interesting to note, however, that even at the more strongly protected stage of discussions post-report, if permission for legal representatives to attend is given, they may assist on law. Similar advice is found in the RICS practice statement and guidance note at GN15, under the heading “Narrowing differences and meetings between experts”.
The joint statement is more strongly shielded still from the legal representatives, this time by the specialist court guides. The new Chancery Guide makes clear that, apart from assisting in identifying the issues to be discussed, legal representatives must not be involved in “negotiating or drafting” the statement (at 9.32). A failure to observe those specific restrictions has been considered in three cases: BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC); Pickett v Balkind [2022] EWHC 2226 (TCC); and Andrews and others v Kronospan Ltd [2022] EWHC 479 (QB). In Andrews, a failure to adhere to that prohibition led to the exclusion of all expert evidence at an advanced stage of the proceedings. Again, this subject matter is also covered in the RICS practice statement and guidance note in sections GN7, GN15 and GN21.
A problem with a narrow application of CPR?
This narrow approach to the role of lawyers in the preparation of joint statements is potentially problematic. In practice, lawyer involvement may need to go beyond merely identifying the issues to be discussed. Sometimes, even when issues are identified, experts will stray beyond their remit in considering those issues. Further, it is not unusual in our experience, for instance, for one expert (improperly) to seek the agreement of the other on a basis of interpretation which does not in fact coincide with the basis being advanced by either party or to seek to introduce new material which is not in evidence and for which permission has not been obtained. Sometimes both experts will take it on themselves to come to agreements on matters which are in issue and not properly be said to form matters within their expertise. Experts are not lawyers and, with the best will in the world, will not fully appreciate where they are straying into impermissible territory.
In these circumstances, it cannot realistically be said that a lawyer must be divorced entirely from “negotiating” the statement and surely must be able to indicate to the expert what can or cannot properly be included in an agreed statement, eg where a draft containing impermissible material has been proposed either by that expert or the other party’s expert. Again, the extent of such involvement must be circumscribed, and great care must be exercised by the lawyers to ensure that their involvement does not lead to the experts’ joint statements being a forum for advancing the parties’ cases rather than seeking to elucidate as clearly as possible what is agreed and what is not agreed within the scope of the expertise of each expert.
We consider that the specialist court guides may need revision in this regard. It is certainly not proper for the lawyers to negotiate a joint statement. However, the prohibition on “drafting” may exclude too much, if it precludes experts from turning to the legal team for assistance on points of law that might arise or be relevant at this stage or where questions arise about the proper scope of the experts’ statement. This is consistent with the RICS practice statement and guidance note, which recognises at GN15 that, although lawyers will not usually be present at expert meetings, their advice on matters of law must be sought and that experts must not stray from their areas of expertise.
Conclusion
We consider that there is a widespread misunderstanding of the place for lawyer/expert interaction in many forms of property litigation. Law and opinion can, in these areas, become so enmeshed that it is quite unrealistic to say that experts should not consider the law, or should not seek lawyers’ input throughout (we would say) their involvement in the case, always bearing in mind that the fruits of the expert’s deliberations must always be their own, true opinion. We do not consider that the case law, as is sometimes suggested, operates hermetically to seal the expert off from the legal team after the point of instruction. This ensures the report and other documents address the legal issues in the case, and also minimises the risk that an expert fails to opine on all matters on which the court requires their assistance. It also means that experts are less likely to be “ships passing in the night”, or to seek to use the discussions and joint statements as an opportunity to raise new, and not previously considered, issues. This is conducive to the court or other tribunal having before them independent expert evidence which is focused on the issues which the court must decide.
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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