On notice of his appointment we familiarised ourselves with CPR 35 and a witness’ “overriding objective” to the court. The expert is to be jointly instructed by the disputants’ solicitors and, importantly, the joint expert is permitted to apply directly to the court for instructions if the parties’ solicitors fail to provide them.
In this case, joint instructions were not received, despite reminders sent by my colleague. He therefore used his power under CPR 35.14 and applied directly to the court to request that it provide instructions and amend the timetable.
A hearing was set for two weeks from the date on which the expert’s request was faxed to the court. At the hearing, the judge permitted the expert’s application and made some harsh comments about the conduct of the parties and their solicitors.
The joint expert took a proactive approach and helped the parties to progress the case by using powers under CPR 35. So, what do you do when you receive a letter of appointment? First, consider whether to provide your own terms of appointment. There are a number of reasons why you may wish to do so:
- The parties’ solicitors might argue about which of their terms should be used, and using your terms eradicates that problem. Second, you need to set up a fee structure and ensure that you are paid for work that you have undertaken, travel, and time booked and then cancelled through no fault of your own. Third, deciding what should be included in your appointment terms will help you to become familiar with CPR 1 and CPR 35 and the difference between acting in a traditional expert witness role and a single joint role.
Should you wish to draft your own terms or instruct a professional to do so, it is advisable to include the following:
- State that you have been appointed by the parties’ solicitors to provide evidence in your specialist field. Decide how much information to include about the background to the dispute and whether to include reference to the questions that you are asked to answer.
The joint expert took a proactive approach and helped progress the case by using powers under CPR 35. So, what do you do when you receive a letter of appointment?
- Ensure that you clearly define words that are used throughout the terms of appointment.
- Ensure that the solicitors are obliged to provide you with full and clear instructions, deal promptly with your reasonable requests, arrange access for site visits and document inspection. With respect to your duties, it would be sensible to include all duties under CPR 35. This will address your mind to the form that your report must take as well as the three statements that you must include.
- Set out your hourly fee and the daily and half-daily rate for attendance at court. Remember that if your fees are unreasonable, the court has power to impose its own terms. State at what rate travel is to be paid.
- Considering the overriding objective, include provision to instruct more junior staff on tasks that can be delegated, and state at what rates they are to be paid. Ensure that you can annually revise your financial terms and state that you may present regular invoices. State when payment is due. Importantly, you should include provision that the parties’ solicitors are jointly and severally liable for your fee.
- There are many other points to consider and the above suggestions are not comprehensive. What they may do is provide useful pointers for you to think about either before you are appointed or on appointment.
There are also housekeeping differences between working as a conventional expert and a joint expert. Essentially, you must send every letter that you write to both parties so that you are, and are seen to be, open and transparent.