The 1st December 2014 saw the way experts are instructed under CPR 35 change with the implementation of new guidance from the Civil Justice Council. The guidance, published earlier this year, replaces the protocol for the instruction of experts contained in the Practice Direction to CPR 35. It offers guidance to experts and those instructing them on how best to comply with CPR 35 and Court orders.
The implementation of the guidance ends a twelve-month period that brought us Mitchell and Denton. It is with those cases in mind that the guidance should now be read and it is clear that experts are not immune from scrutiny in the post Jackson environment. Through out the guidance the overriding objective focusing on dealing with cases justly and at a proportionate cost is never too far away. However, the guidance saves the starkest advice until the last four paragraphs under the ominous sub-heading of ‘Sanctions’. In particular experts are warned that:
- Sanctions may apply for a failure to comply with CPR 35, the Practice Direction or court orders.
- Where proceedings have not been issued sanctions may include a sanction for misconduct to the expert’s professional body/regulator.
- Where proceedings have been issued the expert may be made subject to costs penalties in the form of wasted costs orders or a reduction in the expert’s fee.
- If an expert has been negligent there may be a claim on their professional indemnity insurance.
One can well imagine the possible application of such sanctions in cases where an expert fails to provide the answers to questions on time and Court time is wasted. In more serious and significant cases the failure of the expert could lead to a client’s case being struck out. Solicitors instructing experts would be well advised to make experts aware of the guidance, the risk to a client’s case for breaching orders and the potential liability an expert may face if they are to blame for the breach. The consequences of Jackson for experts is that their duty to the court cannot be seen as limited to helping the court on matters within their expertise but also includes the need for strict observance of court rules and orders.