LEGAL EAGLES CALL IN THE EXPERTS
The role of being an expert in legal proceedings is not one to be taken lightly. Generally, expert evidence will only be allowed in court proceedings with the explicit permission of the judge – and will only be allowed where it is necessary to assist the court when a case involves matters which the court itself does not have the requisite technical or specialist knowledge to call upon.
ROLES AND RESPONSIBILITIES This article covers the issue of experts in civil proceedings, but many of the same principles apply should an expert be called in criminal proceedings. Both civil and criminal proceedings are now covered by practice rules and practice directions which set out the roles and responsibilities of the expert. Anyone instructed as an expert witness before the court should acquaint themselves with those rules as far as they affect them - and their obligations under those rules should be clearly spelt out to them in their letter of instruction from the party calling the expert.
DUTIES
Perhaps the most important issue for an expert to understand is in respect of their duties. This is governed by the Civil Procedure Rules at 35.3 which states it is the duty of the expert to help the court on the matters with their expertise and furthermore, this duty to the court overrides any obligation to the person from whom experts have received instructions, or by whom they are paid.
OBJECTIVE AND UNBIASED
The practice direction to the Civil Procedure Rules states that experts and those instructing them are expected to have regard to the guidance contained in the court guidance notes and that the expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. The expert’s opinion should be objective and unbiased and limited to matters within their expertise in order to assist the court.
The expert opinion must be fully balanced and include references to matters which would in fact detract from their opinion. Furthermore should an expert at any time change their views then such change of views should be notified to all parties and the court.
In particular, court guidance states that whilst an expert owes a duty to exercise reasonable skill and care to those instructing them and to comply with any relevant professional code, they have an overriding duty to help the court on matters within their expertise and experts must not serve the exclusive interest to those who retain them.
CLEAR GUIDANCE
The court procedure rules provide clear guidance to those who wish to instruct an expert in connection with the preparation of a retainer letter. Anyone instructed as an expert should ensure that both the retainer and instruction letter they receive are clear and provide them with sufficient information regarding the case and duties.
If an expert is in any doubt whatsoever about the remit of their instructions or whether they have been properly instructed they should not hesitate to contact their own professional body who will be able to provide guidance - or indeed they may seek their own independent legal advice.
MAIN OBJECTIVE
Ultimately, the main issue for an expert to remember is that they are there to assist the court and that their duties to the court override any other duty whatsoever to those who instructed them or are paying them – and if there is a conflict at any stage their duties at the court must always prevail.
Andrew Oliver Andrew Jackson Solicitors Click to view more info
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www.windenergynetwork.co.uk
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