COMPANY LAW Fees and fee arrangements
Let’s not forget to mention the sometimes difficult subject of fee arrangements. Every solicitor knows (or should know) that an expert cannot be instructed on a fee basis where the amount of his fees can be affected by the outcome of the case. Therefore, with virtually no exceptions to the rule, the expert cannot accept instructions on a conditional, contingent or damages basis. Should the expert be instructed on such a basis, both he and the instructing solicitor will be at fault, and the damage to their client’s case of this being known can be substantial. This is not only because of the effect on the expert’s independence; it is also because an expert giving evidence on a contingency fee can materially influence the outcome of the litigation. In the 2016 case of Dr Adler v the Medical Practitioners Tribunal, it was established that Dr Adler had breached this aspect of the expert’s code, to the extent that he was found to have written two reports for the same claimant in different cases where he contradicted himself from one to the other.
View from the bench
So how does the bench regard experts? In general, if they behave themselves, judges will be welcoming and courteous to experts, recognising that their technical expertise can be of great value to the course of justice. However, there are a number of aspects to expert evidence which judges find annoying, if not unhelpful. The first of these relates to the management of expert evidence. Solicitors often feel that the expert is their key weapon – someone with special knowledge who can win the case for them. Often, this view is so strongly held that the solicitor may overlook problems with their factual evidence. This approach leads solicitors at times to rely too heavily on the expert evidence and to push for the use of expert evidence where it is not needed. Judges are now taking a much stronger line in allowing the use of expert evidence in their cases. Judges more often than not are resistant to allowing expert evidence, drawing a little more narrowly the meaning of the term “necessary” to the proceedings. Bear in mind that CPR part 35, which deals with experts, opens with the message: “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.” The word “restricted” seems more and more often to be the word the court concentrates on. Overall, solicitors can expect judges to take a more critical look at the need for experts. They will look to solicitors to demonstrate the need for expert evidence and show that they have properly identified the issues where expert evidence will be needed. In this context, the court will allow such evidence only where it is persuaded there is need. It should also be borne in mind that no party may call an expert or put in evidence an expert’s report without the court’s permission (CPR Part 35.4 (1)).
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The solicitor knows that the value of the expert lies in the court accepting that his evidence is objective and impartial, and unaffected by the demands of the case.”
What annoys judges more than anything else is when experts, either of their own volition or under pressure from instructing solicitors, take on an advisory or advocacy role, or usurp the function of the court. The former arises usually when the expert forgets his impartiality, or is being leaned on by instructing solicitors to say more than he should; the latter arises when the expert and his instructing solicitors have forgotten the limitations that apply to the role of the expert. There have been a number of recent cases where these issues have received judicial attention, if not criticism. In the 2016 Scottish case of Kennedy v Cordia, two criticisms were levied at the expert: “One was that he was inadmissibly giving his opinion on matters of law; the other [was] that an expert’s opinion of what he would have done in the circumstances did not assist the court, and was therefore inadmissible.” In the 2016 case of Darby Properties v Lloyds Bank, expert evidence was found by the court to have amounted to a tutorial on derivative products; and the expert evidence was not to be admitted as expert evidence but only as factual evidence. It remains to be seen whether or not the adversarial system will benefit from this narrowing definition being applied to expert evidence; and from the greater distinction between opinion evidence and expert evidence of fact – where one is controlled far more strictly than the other. Solicitors nonetheless need to be aware that this is the direction courts are taking. The courts are more actively deterring parties from seeking to enhance the value of what is only factual evidence by calling it expert evidence.
Reasonable expectations of instructing solicitors
Instructing solicitors, particularly where they may not have fully grasped the technical intricacies of their client’s case, like to rely heavily on their experts, often with excessive expectations as to the degree to which their expert can properly influence the case. My own experience is often the opposite: even where expert evidence is necessary and helpful, it is seldom on this that the case turns. This was forcefully brought out in the very recent 2018 case of Lehman Brothers v National Power. In its judgment, the court said: “Each party called expert evidence … I am grateful for the contribution made by each. It gave useful context. In the event, I found the assistance they could give to the resolution of the material issues in this particular case was very limited. With little exception, the issues in this case were, in the event, for the court directly rather than for the court to choose between the opinions of two experts. There was very little common ground between them and this showed the room for difference of opinion.” All these points should give food for thought to the instructing solicitor, resulting in the use of expert evidence carefully and in a fashion that is to the point.● ISSUE 102 | AIAWORLDWIDE.COM