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Changes To Civil Procedure Rule 35

Use of an expert witness in civil litigation

A long raging argument over proportionality of expert witness costs has resulted in a fundamental review of the rules and procedures governing the costs of civil litigation. Lord Justice Jackson was appointed by the Master of Rolls in 2008 to carry out this review culminating in his 555 page report on 14 January 2010. This contained just two proposals of interest to expert witnesses

One change proposed is to alter Civil Procedure Rule 35 so that any party wanting to bring an expert witness to the matter should provide to the court an estimate of the cost of doing so.

The second change is a proposal to introduce the Australian practice of concurrent expert evidence known Down Under as “hot tubbing”

With hot tubbing, two expert accounting witnesses for example would be sworn in at the same time and would attend a discussion chaired by the Judge. The agenda would be fixed by a joint statement from the two experts from an earlier meeting of experts held under CPR 35.12 which would record the matters upon which the experts still disagreed. The discussion could be attended by counsel from either party who can ask questions as would the Judge who would steer the meeting.

Another system of expert evidence management is being currently proposed by the Law Commission whereby the evidence is tested pre-trial in order not to waste the time of a full court.

The hot tubbing should allow the evidence to be explored in advance of any full blown hearing but its success will be down to the skills of the Judge – running the risk that the latter may well secretly favour one party or another. However, it is unlikely that the hot tubbing will save any money! By the time the experts are ready to come to the discussion “in the tub” they will have expended all their time and effort in preparing their reports. Although there may be many ways in which expert evidence can be better used to reduce the cost of litigation, the Jackson report does not address them.

Ways to reduce the costs of litigation (relevant to expert accounting witnesses)

These methods are applicable to an expert witness or a forensic accountant operating under civil procedure rules as well as criminal procedure rules and relate to private funded experts and those paid by the Legal Services Commission:

  • All reports written under civil or criminal procedure rules are done so as if they were to be placed before the court – irrespective of whether this happens or not. Costs would be saved by the introduction of advisory statements that could assist understanding.
  • Staged instructions would allow for just the required amount of input to be obtained from the experts up and until a matter perhaps settles, without the need for a full report and a court hearing.
  • If experts were involved earlier there is much opportunity for saving, as opposed to expensive and rushed last minute instructions. Expert work can avoid unnecessary avenues of investigation.
  • Wasted court dates are expensive and could be avoided by proper court funding and management.
  • By choosing the “cheapest” forensic accountant (a favorite ploy of the Legal Services Commission) very rarely is best value obtained.
  • Expert instructions are often vague leaving the expert to decide what should be done. Sometimes this can produce valuable input into a case but more often leads to inefficient and uninformed work.
  • Late payments of experts has been considered as one of the major forces inflating experts’ fees – it is not helpful and leads to an aggressive stance on occasion by the expert witness. It is not acceptable for public funders in particular (LSC) to withhold funds to ensure their budget spending patterns are maintained.