Brian Thompson, secretary of the Expert Witness Institute, looks at the new draft Code of Guidance for Experts arising from the 1998 Civil Procedure Rules.
When Lord Woolf first began his enquiry, which ended in his famous report and the subsequent formulation of the new Civil Procedure Rules (CPR), it was felt that there should be a protocol covering the use of experts. A working party was set up led by the Association of British Insurers – but it effectively ceased to meet after the summer of 1998.
With the publication of the CPR in late January 1999 it was decided to revive the working party and the Vice-Chancellor asked Sir Louis Blom-Cooper QC to chair it.
The working party was accordingly reconstituted, under terms of reference given to it by the Vice-Chancellor, with representatives from the judiciary and the bar, as well as solicitors, experts, the ABI and the Lord Chancellor's Department.
After some three months intensive work a draft Code of Guidance has now been released for consultation and comment with the term 'protocol' dropped. This is because it was felt that it could imply that the Code would only be concerned with pre-action matters whereas it is intended that it should also apply throughout the entire duration of the action.
Responses are requested by October 11, 1999, following which the working party will reconvene to consider submissions and agree a final draft for presentation to the Vice-Chancellor. If and when the Vice-Chancellor approves it, he has indicated that it will be converted into a Practice Direction.
Comments are particularly sought on a number of specific questions, as well as the whole of the draft Code (including the preamble). These are:
- Does the Code make sufficiently clear the twin functions of the expert – that of giving advice to prospective litigants and of providing reports which meet the provisions of Rule 35?
- Is the absolute prohibition in paragraph 4 relating to contingency fee arrangements correct? Should the paragraph make specific reference to the Law Society's instruction to solicitors not to engage in such arrangementsNULL
- Is the provision in paragraph 10 (a) (i) relating to the explanation of the strengths and weaknesses of party's cases properly restricted to experts' advice or should it likewise apply to expert's reports?
- Do the provisions in paragraph 18 relating to conferences and discussions accurately reflect the spirit of the Woolf reforms?
- In paragraph 20 the Code provides for face-to-face discussion between experts' only in cases of some complexity, i.e. cases other than fast track. Would this be acceptableNULL
- The members of the working party were divided on the issue of lawyers being (or not being) present at experts' discussions. What is your view?
- Has the working party provided sufficient guidance on single joint experts, having regard to the novelty of such a concept?
- Are the provisions for seeking the Court use of assessors acceptable?
The working party would also like to know whether, as and when the Code of Guidance is approved by the Vice Chancellor, it should remain in being so as to respond from time to time to developments in the case law on Rule 35.
Responses can be made to Sir Louis Blom-Cooper at the Expert Witness Institute, 8-16 Great New Street, London.