When members of the public, their legal representatives, and the courts have a technical problem, it is usual to seek advice from an expert. The expert’s primary job is to give an opinion on the contested issues. The facts of the case should have been established by the witnesses of fact provided by each party to the dispute, although of course the expert may turn up new evidence in the course of his (or her) investigations. Since it is an opinion, it is not uncommon for different experts to give different opinions. If the matter goes to court, the court will want to know the relevant qualifications and experience of each expert so that it can weigh up the authority of each. Consequently it is a false economy to choose an expert solely on the basis of cost, since the evidence of a poorly qualified and/or experienced expert may easily be given less weight than that of his opponent. Also, writing an expert report and then justifying it under pressure in court is not easy, and experience is extremely valuable.
If legal proceedings have been started, the expert is termed an Expert Witness and is subject to stringent rules laid down in the Lord Chancellor’s Civil Procedure Rules Part 35. These, together with the Practice Direction which explains the Rules, can be found at on the internet at http://www.justice.gov.uk/civil/procrules_fin/current.htm. The Practice Direction sets out the general requirements of an Expert Witness:
1.1 It is the duty of an expert to help the court on matters within his own expertise (rule 35.3.1). This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid
(rule 35.3.2)
1.2 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
1.3 An expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of advocate.
1.4 An expert should consider all material facts, including those which might detract from his opinion.
This may come as a surprise to many members of the public. Surely, if someone pays an expert to make a case for them, the expert should do the best possible job for them? The answer is that, even though they pay the expert, his first priority is to assist the court. He is obliged to discuss all aspects of the case within his expertise, even when this goes against what the client wants him to say. Ultimately this is in the best interests of the client, since it is better to know the real strengths and weaknesses of a case early when something can be done about them, rather than have them exposed in court when it is too late.
Many experts will be members of professional bodies such as the Royal Institution of Chartered Surveyors (RICS), and will be subject to their rules. These will mirror the Lord Chancellor’s rules, but may be even stricter. For instance, the RICS Practice Statement “Surveyors Acting as Expert Witnesses” 2nd edition states: “The primary and overriding duty of the surveyor is to the judicial body to whom the evidence is given (para.2.1). The duty is to be truthful as to fact, honest and correct as to opinion and complete as to coverage of relevant matters…(para.2.2). The surveyor’s evidence must be independent, objective, and unbiased. In particular, it must not be biased towards the party who is responsible for instructing or paying the surveyor. The evidence should be the same whoever is instructing the expert or paying for the evidence” (para.2.3).
The expert may however feel some tension between his duty to the court and his duty to the client. One way in which this becomes apparent is with regard to the disclosure of documents. Generally, when litigation starts the client must disclose to the other side all documents on which he relies, including any documents which might adversely affect his case. The only documents which are excluded are “privileged documents”. These are communications between a client and his solicitor, and between the solicitor and the expert. If an expert prepares a report on a boundary and sends it direct to his client before legal proceedings are contemplated, the report may be subject to disclosure. This means that he must be careful of what he says even before proceedings start. It might be safer to send the report to the solicitor, since this will not be subject to disclosure. During the run-up to a trial, the expert might prepare a report for disclosure under normal CPR35 rules, and accompany this with a covering letter to the solicitor. Since this letter will not be disclosed to the other side, the expert can be considerably more forthright about the strengths and weaknesses of the case. This may have a great deal more influence over the client than the neutral report! In this way the expert discharges his duties to both the client and the court.
Finally, the court will only allow a specified number of experts on each side. This is to maintain the principle that the costs incurred must be proportional to the value of the case. Usually in boundary disputes the value of the land is negligible, and the court will only allow one expert on each side. Sometimes the court will direct the appointment of a Single Joint Expert, agreed by both parties, to advise for instance on the surveying aspects of a boundary dispute. This is a lonely job. No longer can the expert have cosy discussions with the solicitor as to the progress of the case; all communications must be to both parties. Instead of being cross-examined by the opposing barrister if the case comes to court, there is the daunting possibility of being grilled by both parties. And finally, when there are experts for both sides there will be a process of Meetings of Experts with discussions leading to a Joint Statement of issues agreed and disagreed. Poor arguments are quietly dropped and the better ones refined, so that the optimum solutions are likely to have been established by the time the matter comes to court. For the Single Joint Expert there is none of this: he has to “get it right first time”. Consequently the role of Single Joint Expert calls for considerable ability, experience, and confidence.
In summary, the role of the Expert Witness is not easy. He must be able to explain complex technical matters so that all can understand. He must put his duty to the court above his natural desire to please his client. And finally, where boundaries are involved he must be an accomplished diplomat in order to calm the inevitable tensions which arise between feuding neighbours.