August EWJ 24 - Flipbook - Page 86
unsustainable opinion could result in the court rejecting your evidence entirely or favouring the opposing
party's expert opinion. Consequently, this could scupper the prospects of a party successfully bringing or
defending a claim that might otherwise have been
won with competent expert evidence. In such circumstances, if you deprive the party instructing you of
a successful claim or defence, you could find yourself
facing a professional negligence claim for damages.
Additionally, if you're employed, your contract likely
includes a clause mandating the reporting of any conduct issues to your employer. This could result in disciplinary actions and, in some cases, termination of
employment.
Tips to avoid problems and mitigate risk
1. Obtain suitable insurance cover. Expert witness
work is unlikely to be covered under any professional
indemnity policy unless cover has been specifically requested from the outset. To avoid being personally liable for any costs or damages arising from expert
witness work, it is advisable to obtain adequate cover.
If you already have insurance cover, check the wording carefully to ensure the work falls within the scope
of your cover.
Such a claim may be reported, and lead to reputational damage, not just to your work as an expert
witness, but also to your day-to-day role.
3. Third party wasted costs order (TPCO)
The court may make a TPCO against an expert
witness as a result of any “improper, unreasonable or
negligent act or omission” on their part.8
2. Check the experience and expertise of those who
seek to instruct you. Before agreeing to act as an
expert witness, ensure that the firm intending to instruct you possesses the necessary expertise in the relevant practice area. Problems can arise when legal
representatives lack relevant experience. For instance,
in cases involving clinical negligence, it's crucial for experts to possess a solid grasp of the applicable legal
standards. Firms and individuals lacking experience
in this specialised area of law may struggle to provide
adequate guidance, leading to complications.
The party applying for a TPCO has a high threshold
to meet to persuade the court that such an order
against an expert witness is appropriate. Just because
there are grounds to criticise an expert’s performance
as an expert witness and to attack some of their conclusions, does not make it an exceptional case and
mean there has been a "flagrant or reckless disregard of an
expert's duty to the court" justifying a costs order.9
In Thimmaya the court found that the expert's inability to articulate the legal test for negligence at trial
amounted to improper, unreasonable or negligent
conduct, such that the jurisdiction to make a costs
order against him was engaged.
Furthermore, issues have arisen in the past when
inexperienced legal representatives failed to fully comprehend disclosure requirements. This led to situations where expert witnesses were not provided with
all relevant documentation, resulting in criticism from
the court.
Whilst the threshold for a TPCO is high, meaning
such orders will be rare, the damage that results from
a TPCO against an expert witness cannot be understated. Searching for individuals who have been subject to TPCOs reveals that articles discussing the
TPCO are prominently displayed on the first page of
search engine results. As a result, potential clients and
customers are likely to encounter these articles, which
can cause significant damage to reputation and result
in financial loss.
3. Obtain and keep a list of all relevant documents.
You should request an index and paginated bundle
of all relevant documents from the outset and ask that
the list and bundle be updated as further documents
are disclosed. It ensures you do not miss an important
document that might have a significant bearing on the
case. Being able to refer to the full list of the documents you have been provided should protect your
position if any issues arise regarding documents.
4. Regulatory referral and employment issues
There are several ways in which providing unsatisfactory expert evidence at trial may lead to a referral
to your regulatory body or problems with your
employer.
4. Ensure the issues fall within your area of
expertise. This may seem obvious, but as many reported decisions illustrate, not always so. With many
areas of professional practice becoming ever more subspecialist, it is important to ensure that your role is suitably similar, and that the specific issues under
consideration fall within your competence, experience,
and skillset. If not, it is advisable to decline instructions.
For instance, in the case of a TPCO, the Senior Courts
Act 1981 provides that the court must inform the individual’s approved regulator if it considers it appropriate to do so.10
Moreover, most regulatory bodies have mechanisms
for self-referral, requiring you to report any concerns
regarding your own conduct or competence that may
affect your ability to practise.
5. What to do it there is a factual dispute. Often an
expert’s opinion depends on the factual circumstances
of the case and ultimately which factual evidence the
court prefers. Don’t prove an opinion solely based on
the witness evidence from the party from whom you
have received instructions. Provide your opinion on
all the relevant factual scenarios. On that basis, the
court will have your opinion to hand once the factual
evidence has been analysed and the judge’s determination made. You will look fairer and impartial, rather
than an advocate for the side instructing you.
Being criticised in a judgment is likely to necessitate
self-reporting, which could lead to fitness to practise
proceedings being initiated by your regulator. If the
concerns are warranted, and are deemed serious
enough by your regulator, they may lead to suspension, or in some cases, removal from the register.
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