Codes of Guidance for Expert Witnesses

Author:Mr James Farrell
Profession:Herbert Smith

A second Code of Guidance on expert evidence was published in December 2001, designed to assist lawyers and expert witnesses instructed in relation to litigation. This Code was published by a Working Party set up by the Head of Civil Justice and approved by the Expert Witness Institute. It was pre-empted by a rival Code published by the Academy of Experts in 1999. There are now two competing Codes which causes some confusion, rather than comfort, to experts and lawyers whom they were intended to assist.

One of Lord Woolf's concerns in his review of Access to Justice was the delay and expense caused by expert witness evidence. Part 35 of the Civil Procedure Rules (CPR) seeks to address this by restricting expert evidence, encouraging the use of single joint experts, and introducing measures designed to narrow the issues remaining at trial. Part 35 also provides rules in relation to how experts are to be instructed, the key elements that should be contained in their reports and other procedural matters including the conduct of so-called "without prejudice" meetings between both parties' expert witnesses.

Part 35 has proved to be one of the more contentious sections of the procedural rules, generating pre-trial applications to court to determine its meaning and a need arose for clarification of the procedure. The Working Party and the Academy of Experts subsequently produced their Codes. (The Academy claimed that comments it made on the Working Party's draft Code in 1999 had been "largely ignored" and therefore produced its own Code.)

The Academy of Experts' Code (published in December 1999 and revised and republished in June 2001) has been cited positively in a number of judgments, including the following:

Smith v. Stevens (Unreported, QBD, 26 January 2001) in which the Court "followed" the Academy of Experts' Code of Guidance in refusing to allow a single joint expert to have a conference with one side alone.

P v. Mid Kent Healthcare NHS Trust [2002] 1 WLR 210 (Court of Appeal) in which Lord Woolf described the Academy's Code as a "helpful protocol" which "admirably summarises the position". Lord Justice Simon Brown noted that "the one document Ö which specifically addresses the point is the Code of Guidance Ö published by the Academy of Experts". Quoting from the Code, Lord Justice Simon Brown noted that "the good sense of this is surely plain".

The result of having the two Codes in existence is that lawyers and experts...

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