Under a new protocol, expert witnesses and the parties instructing them are more likely to be punished for failing to fulfil their duties to the court. Here’s how …

Hands up, who wants to be an expert? As a browse through recent issues of Building will confirm, judges have of late been increasingly willing to criticise experts appearing before them.

In the construction field, at least, these criticisms do not indicate declining standards. In fact, it seems to me that the quality of experts has improved. Judicial criticism is more common because the courts’ expectations of what they require from experts has risen. Although this has been a trend for some years, experts might before now have had some excuse for being unsure about exactly what was expected of them. There were many judgments and competing codes of guidance and practice (produced by bodies such as the Expert Witness Institute and the Academy of Experts). Now, however, there are no excuses for not knowing what the courts expect.

On 22 June, the Master of the Rolls, Lord Phillips, ushered in the Experts’ Protocol, which will take effect from 5 September 2005. In place of a variety of sources we now have one official set of principles.

The first point to note about the protocol is that it codifies and builds on best practice. It provides detailed guidance on how to comply with court rules on expert evidence and sets out the specific duties that arise from the expert’s overriding duty to help the court.

Second, there are sanctions for breaching the protocol. Such measures can result in costs orders or awards of interest. Sanctions already exist for breaching the court rules on expert evidence. It is, however, a new step to give a detailed document such as the protocol real teeth.

Sanctions will not just be applied to parties. Experts might find costs orders being made against them if they waste costs by flagrantly and recklessly disregarding their duties to the court. Although the courts already have the powers to impose such orders they have been rarely used. This may be set to change.

The protocol makes it more likely that the courts will impose costs orders and other sanctions against expert witnesses and the parties instructing them for failing to fulfil their duties to the court. Usually when experts incur judicial criticism they have no real chance to respond. Like a dissatisfied client, the court expresses its disapproval. However, the big difference is that it is public criticism and can affect the expert’s livelihood. It is ironic that it is only where an expert has obviously disregarded their duties that they will be heard when a court considers whether to make a costs order against them. Otherwise the person has no way of putting their side of the story. This leaves me – and no doubt many experts – feeling a little uneasy.

The protocol provides detailed guidance on how to comply with the court rules on expert evidence and sets out the specific duties

Third, the protocol seems to proceed on the basis that all parties should instruct experts before proceedings start so that expert issues can be discussed and narrowed. Often this happens now but in some cases it will add to the high costs of complying with the pre-action protocol for construction disputes. This puts the parties to considerable expense in explaining their cases to one another before proceedings are commenced.

The way in which the Experts’ Protocol deals with pre-action expert involvement creates a further potential problem. Although the protocol does not apply to experts who do not give evidence in court, it does apply to experts who were initially instructed only to advise but are later appointed as expert witnesses. This can be a difficult transformation for experts. One day they are a client’s animal advising how to put a claim document together. The next they are the court’s servant with a duty to take an objective view (but with a “client” continuing to pay them).

This is nothing new and responsible experts should continue to take it in their stride. A clear distinction between the two roles certainly benefits the process overall. However, the protocol’s treatment of the expert’s pre-action role may risk blurring this boundary and making it difficult for the expert to know when their duty to the court begins.

The protocol applies to the whole of the civil justice system from medical negligence claims to claims for loss and expense. As such it inevitably has a “one size fits all” feel to it. Overall though it will doubtless raise standards and should remove the need for judicial criticism of experts to which they often have no real chance to respond.

Rupert Choat is a solicitor at CMS Cameron McKenna. Email rupert.choat@cms-cmck.com