To the letter
Date: 11 December 2009
Authors: Mark Solon
Issue: Vol 159, Issue 7397
Categories: Features, Profession, Expert Witness
Accuracy is essential before the report is served. Here are some key points to check:
l Are the client’s name and address, etc. correct? Clients get upset if they are not.
l Are the basic facts—dates, places, times and locations—correct? Errors here can mislead and look unprofessional.
l Are the instructions completely and accurately summarised?
l Has the expert listed all the material he has relied upon? Is any of it privileged? Has he attached copies to the report?
l Has the expert commented upon all the specific questions and issues relevant to his expertise?
l Are the conclusions and statements of opinion clearly set out and based upon supporting evidence?
l Is the report consistent with other evidence, such as witness statements, documents and the other experts’ reports? If not, why not?
l Is the report dated and signed?
Above all, consider how the report affects the strength of the case and, if necessary, discuss this with the expert before the report is finalised for disclosure.
Explaining the report to the client
Each expert’s report must be sent to the client soon after receipt, and the conclusions and implications for the case discussed with the client. Some clients will not readily understand when an expert’s report does not completely or largely support their case, or when the expert prefers the other party’s version of events or states an opinion which appears to be critical of the client. Clients may be upset if an expert raises a new issue.
The client must be reminded of the expert’s independence and duty to the court, and that it is preferable that the expert’s reservations are known at this stage rather than later.
It may also have to be explained to the client why it may not be possible to abandon that expert and instruct another, and why the expert must be paid, despite his seemingly “unhelpful” report.
Consider also whether:
l The report suggests amendments that may be necessary to the statement of case.
l A conference with the advocate, or advice on evidence, is necessary.
l The report should be sent to other experts before it is disclosed to the other party.
l To make or revise a Pt 36 offer based on the report.
Remember that the client’s instructions are needed before the report is disclosed to the other party or it is filed at court.
Draft reports
There is no reason why an expert should not be invited to prepare a report in draft, to enable the instructing solicitor and client to check the report for compliance with instructions, the CPR and any court directions, for factual accuracy, consistency and completeness, and for clarity of presentation.
Single joint experts may, on occasions, send both parties a “draft” and invite comments on matters of fact, before finalising the report and filing it at court.
However, an expert must not be asked to set out his comments on, for example, the weaknesses of the case in a separate “side” letter, as this would be in conflict with the expert’s duty to provide his complete and true opinion to the court.
It is perfectly acceptable under the CPR to ask for amendments to an expert’s report before disclosure, if: the facts are not accurate; new facts or evidence have come to light since the instructions were sent to the expert; the report does not comply with the CPR formalities, the expert has commented on issues outside his expertise, or has commented too definitively on matters which are for the judge to decide; the expert has not annexed relevant material; and the report could be presented in a clearer way.
Solicitors and clients must not, however, ask an expert to amend his report in a way which distorts his true opinion on key issues in the report. This would be a breach of the solicitors’ code of conduct—see principle 21.10 of the Guide to Professional Conduct, 5th edition, 1999.
There is a “grey area” about suggesting to an expert that particular statements in his report might be omitted or rephrased when, perhaps, they do not show the client or the case in the best light, but are not crucial to the evidence or the expert’s opinion.
The report is the expert’s, and he must be the one to decide on its contents: he is entitled to reject suggested amendments if he considers that they materially alter what he wants to say.
Disclosure & filing at court
The usual times for disclosing an expert’s report are:
l Pre-action, in compliance with a pre-action protocol.
l With the particulars of claim.
l In accordance with the court directions. These will often provide for simultaneous exchange of reports, but sometimes one party will be ordered to disclose their reports first, leaving the second party to decide whether they need their own reports at all, or perhaps whether they only need a report that comments on the disclosed one.
Updating & supplementary reports
In some cases, an expert will need to update his report before trial to include evidence disclosed since the report was prepared, and in other situations a second supplementary report may have to be prepared, eg on the re-examination of a claimant in a personal injury case, whose prognosis was uncertain at the time of the first report. Each “new” report must be dated and signed, and its place in the sequence should be recorded on the front sheet.
Late reports
It is important for experts’ reports to be disclosed in accordance with the court directions. To ensure experts appreciate this, a copy of the directions should be sent with the instructions and a definite date for delivery of the report set.
If a report is, nonetheless, “late”, try to reach an agreement with the other party to a slightly later date for exchange or disclosure, or failing agreement, apply to the court.
Mark Solon, solicitor, Bond Solon.
Website: www.bondsolon.com
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