CONFLICTS OF INTEREST
Expert witnesses have a duty to the court to be independent and objective in the evidence they provide. Judges may, in the exercise of their discretion, reject altogether evidence tendered by experts whom they know to have – or suspect of having – a financial stake in the outcome of the litigation. This is the principal reason why experts should think very carefully before accepting instructions to act as an expert witness on a ‘no- win, no-fee’ basis.
For much the same reason, personal, professional or financial links with parties to a dispute, or with businesses in competition with them, would normally debar an expert from acting as an expert witness in any litigation in which those parties are engaged.
Expert witnesses need to be particularly mindful of the risks involved in acting in cases involving former clients, lest this should prompt the allegation that knowledge or information gained while working for the former client is being used to this client’s disadvantage. Whenever there is a conflict of interest of this kind, or it appears that there may be one, the expert concerned should seek to obtain the informed consent of both the old and the new client before agreeing to act for the latter.
An instructing solicitor should always check at the outset that the expert has no conflict of interest, and the expert should inform the instructing party (whether on initial instruction or at any later stage), without delay, if the instructions and/or work have, for any reason, created a conflict of interest3
. REFERENCES FEES
The fees experts charge are, in large part, market driven. What’s more, fees charged in cases that are paid for from public funds are subject to Ministry of Justice caps4
This means they are around half those charged habitually in civil cases. The UK Register of Expert Witnesses conducts a biannual survey5
on expert fees amongst
its members. Its current (summer 2017) average hourly report writing rates for marine surveyors for non-legal aid civil work range from £134 to £153 per hour.
CONCLUSION
Expert witness work can be a rewarding adjunct, both intellectually and financially, to an existing professional workload. However, anyone considering entering the fray should take care to understand the nature of the role and the expert’s duties and ethical considerations therein.
.
1 Anyone contemplating becoming an expert witness should read Getting Started as an Expert Witness (edition 2, 2015), published by J S Publications (https://www.
jspubs.com/LittleBooks/lbe. cfm#LB3). Call 01638 561590 to order.
2 See Factsheet 69 from the UK Register of Expert Witnesses (
www.ukrew.org.uk) or visit
https://www.justice.gov. uk/courts/procedure-rules and browse through the procedure rules.
3 See the case of Toth -v- Jarman (2006, EWCA Civ 1028) discussed in Factsheet 2 from the UK Register of Expert Witnesses.
ABOUT THE AUTHOR
Dr Chris Pamplin has been Editor of the UK Register of Expert Witnesses since its start in 1988. Most of his time is now spent on the professional support and education of expert witnesses. He is a regular contributor to meetings and publications that consider aspects of expert evidence in the UK.
UK Register of Expert Witnesses, 11 Kings Court, Newmarket, Suffolk CB8 7SG Email
chris@jspubs.com Website
www.ukrew.org.uk or
www.jspubs.com
4 See http://www.legislation.
gov.uk/uksi/2013/2877/ schedule/2/made for rates for civil cases, which are identical to those for criminal cases. Unhelpfully, marine surveyors are not defined specifically in the table, so the court determining officer would need to decide which category most closely aligns itself with a marine surveyor’s training, skill set and ease of availability of expertise, and use that category’s figures.
5 All survey results are available online at https://www.jspubs. com/Surveys/
feesurveys.cfm
For free access to lots of expert witness support and guidance plus membership information, visit
www.ukrew.org.uk and subscribe to the UK Register of Expert Witnesses’ free e-wire service (more than 100 issues plus monthly updates).
The Report • December 2017 • Issue 82 | 51
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