Expert Evidence part 4
Expert evidence in civil proceedings will ordinarily be given in a written report although the court can direct otherwise (CPR 35.5). The expert's report has to comply with the provisions of CPR 35.10 and the requirements of the practice direction at 35PD.2. The expert's qualifications have to be set out together with details of literature or other material relied upon in making the report. The report must say who carried out any measurement, test or the like used for the report, set out that person's qualifications, and whether that work was undertaken under the expert's supervision.
The expert also has to state the substance of all material instructions (whether written or oral) on the basis of which the report was written. This is to fulfil two purposes. Firstly to focus the mind of the expert upon his duty, because setting out the instructions will allow him to focus on what he was supposed to be doing in the light of what he was asked to do. Secondly it also allows the court to see the report in the context of the instructions leading to it. Of course it can be difficult to know or identify precisely which instructions are material.
This does lead to a potential difficulty. Ordinarily discussions in connection with litigation between legal advisers and clients and persons instructed to act for the clients are covered by legal professional privilege. That means that you do not have to reveal on or any documents based upon them. (This is a complex topic to which we will return on another occasion). By way of example, if you get an opinion from a barrister in connection with your case that says your case is pretty feeble, you do not have to show that to the other side, so when your barrister (possibly the same one!) is trying to persuade the court that your case is right you do not have the difficulty of the judge already knowing what your barrister really thinks. (A barrister is not misleading the court in arguing a case: that is why a barrister is merely making submissions not saying what he thinks). Under this rule regarding experts reports discussions which would otherwise be privileged could be referred to.
That is tightly controlled. Firstly it only applies to the material instructions. Whilst the material instructions referred to in CPR 35.10 are not privileged against disclosure the court will not order disclosure of any specific document or permit any questioning in court (other than by the party who instructed the expert) unless it is satisfied that there are reasonable grounds to consider that the statement of material instructions given is inaccurate or incomplete. What that means is that you cannot demand the documents or ask questions about the instructions unless you can show some grounds to start with for suggesting that there was something inaccurate or misleading about the way that the material instructions were set out. Since without questioning and the documents it will often be difficult to show that, it will only be where there is some some internal inconsistency (for example a report in its content saying something which seems to contradict what it says the material instructions were) or for example another disclosed document betrays an inconsistency, that a party is likely to get the opportunity to pursue this.