May 6, 2020
Coauthored with Jonathan Blaney, K&L Gates LLP
This article has been published by Financier Worldwide. Reprinted with permission.
In the lifecycle of every business issues inevitably arise which necessitate the involvement of specialist advisors. Commonplace examples include the appointment of accountants, insurance brokers or valuators, amongst others. However, where issues arise that are particularly intricate, complex or technical in nature, and which may be the subject of a dispute, the involvement of external matter-specific experts will often prove invaluable.
Business leaders know if a matter will have a significant impact on their company or its risk profile. As we now operate in an environment where the action (or inaction) of directors and senior management is heavily regulated and scrutinized, it is vital that appropriate steps are taken in a timely manner when complex issues or disputes are encountered. At some point, evidence of those steps may need to be justified to regulatory bodies, a court or tribunal.
Why use an expert?
An expert witness has a more privileged role than a witness of fact, who is someone who gives evidence of things within their personal knowledge, such as things they have seen, heard, or done. A witness of fact cannot give evidence of opinion in a court or tribunal. Only expert witnesses who have specialist knowledge, qualifications, and/or experience in a particular field are permitted to give opinion evidence about facts and matters within their field of expertise.
An expert witness is often required to navigate the complexity of specialist areas and to break down difficult problems into manageable parts. The expert role is vital to the appointed law firm/counsel to advise the client as to the merits and weakness of their claims.
Therefore, it can be beneficial to involve experts to undertake an early assessment of cause, potential liability, or risk exposures to assist clients to develop their legal strategies. This can provide the client with an underpinned strategy as to whether to pursue or defend claims or seek an early settlement.
An expert witness should provide independent assistance to their client, the court/tribunal by way of objective unbiased opinion in relation to matters within his expertise. Therefore, an early independent opinion in relation to the dispute can greatly assist the client in understanding the chances of success of their claim or defence.
If the matter progresses to formal proceedings, the expert will be able to translate the complexity of the issue into a clear and understandable opinion for the benefit of the ultimate decision-maker, whether a Judge in court proceedings or a tribunal in arbitration.
When to use an expert
There are no formal criteria, however, experts can be requested by courts or tribunals where the matter is considerably complex.
The guiding rules for appointing an expert is to firstly assess whether and what expert evidence may be necessary. As shown in British Airways Plc v Spencer parties are expected to carefully consider whether expert evidence is to the crux of the matter, and therefore necessary to resolve the issues in dispute.
Secondly, as to whether the expert does have the expertise necessary to give opinion evidence on the subject in issue, it is vital to select only those issues which require expert knowledge.
Clients should consider involving an expert early as this early assessment could define the outcome of the parties’ next actions. For example, where a catastrophic event occurs and there is a risk to health and safety regulatory or statutory compliance is required, an expert to assist with the matters of liability in this situation can be vital. An expert’s early involvement to gain an understanding of the claims, defenses or strategy, can significantly reduce costs and end up in an early settlement.
Otherwise, involve experts with sufficient time in the preparation of case where complex issues are involved, to allow them to properly understand and assess the subject matter; or with enough time for the expert to analyze and come to a position if defending complex claims.
Selection and appointment of an expert witness
The expert’s independence and impartiality are fundamental to the expert’s credibility. In the UK High Court, there have been recent criticisms of expert evidence in 2017 with ICI v Merit, Riva v Fosters, Energy Solutions v NDA and in 2019 with Russell & Anor v Stone. It is clear in these judgements that the courts consider the current general standard of expert evidence is lacking and the courts will demand rigorous adherence to the requirements and standards to CPR Part 35. Experts are not a ‘hired gun’ and the opinion of an expert witness should be objective and unbiased.
It is imperative to ensure the expert expertise is specific to the issue and that the expert remains in their area of expertise and does not stray. Not only is the right expertise required but also that the expert is experienced in report writing, testifying, or providing evidence. During the enquiry, the client should review whether the expert has the availability to act and allocate sufficient time to the matter.
In the UK courts and under the main arbitration rules, experts cannot work for contingency fees and/or conditional fees. This is because an expert owes a duty to the court/tribunal and to the client provide an objective unbiased opinion in relation to matters within his expertise and owes a duty to the court to present evidence that is — and which is seen to be — the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. A payment conditional or contingent on the outcome of the case would contravene this principle. Likewise, clients, solicitors, and experts have to consider proportionality in experts fees and that there is no unreasoned fees/costs overrun. In the UK courts, an expert’s fees may be disallowed by the costs judge when it was not reasonable for the client to incur the fee in the first place. Furthermore, when awarding costs, the costs judge will look at the end product of the work and make their own assessment of how much time the expert should have taken.
It is also essential that when selecting experts that the individual is able to articulate complex matters clearly and is personable. Using good communication skills is an important part of the expert’s role.
It is important to consider limiting expert analysis, to ensure expert witness’ instructions do not go beyond the field and issues that they are permitted to address and also consider sampling as opposed to full and lengthy analysis as seen in Amey LG Ltd v Cumbria. Often the early involvement of experts can assist counsel in understanding where to limit expert evidence and consider sampling etc. to limit costs and consider proportionality.
Ultimately, when faced with complex issues in a dispute the parties can benefit from independent perspectives and the early involvement of an expert witness. However, in the appointment consideration should be given to the timing of expert reports, conflicts, and verifying the appropriate expertise of the expert. Parties should carefully consider the timing and scope of the expert’s involvement as this can influence the overall outcome, as early expert engagement can lead to early settlement whilst late involvement can lead to excessive costs. Experts can help parties understand the issues, the relative strength and weakness of the case at a technical level, understand their own and opposing positions, and to assist the parties or decision maker in the pathway to settlement. Clients and experts need to be fully aware that the expert’s independence is vital to the expert’s credibility and choosing the right expert can be decisive to the outcome of the case.
 Kirkman v Euro Exide Corporation (CMP Batteries Ltd) Kirkman v Euro Exide Corporation (CMP Batteries Ltd)  EWCA Civ 66.
 British Airways Plc v Spencer and 11 others (present trustees of the British Airways Pension Scheme)  EWHC 2477 (Ch).
 SPE International v Professional Preparation Contractors (UK) Ltd  EWHC 881 (Ch).
 Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd  EWHC 1763 (TCC).
 Riva Properties Ltd & Ors v Foster + Partners Ltd  EWHC 2574 (TCC).
 Energy Solutions EU Ltd v Nuclear Decommissioning Authority  UKSC 34.
 Russell & Anor v Stone (t/a PSP Consultants) & Anor  EWHC 831 (TCC)
 Civil Procedure Rules Part 35.
 BSkyB Limited and Sky Subscribers Services V HP Enterprise Services UK Limited and Electronic Data Systems LLC  EWHC 86 (TCC) (26 January 2010).
 Amey LG Ltd v Cumbria County Council  EWHC 2946 (TCC).