Back To Basics – When And How To Use Your Expert
What follows should be familiar to all solicitors engaged in contentious work, but it does no harm to remind ourselves of the basics. How can I, a humble chartered accountant, feel able to propound on such matters? Because I have practised for over 30 years as an expert witness; also for many years as a mediator and expert determiner. I have written many hundreds of expert and valuation reports, given expert evidence over 100 times, and conducted 120+ mediations and 45 expert determinations. I served for 14 years on the ICAEW forensic committee, and then for 6 on the ethics committee. I am a fellow at The Academy of Experts, one of only about 60 worldwide, where I am chief examiner in expert determinations and assessor for membership from accountants and similar. In a word, I’ve been round the houses a few times.
But more particularly, in going round the houses I have seen too many of my professional colleagues get it wrong at court. That is why, when on the forensic committee, I helped devise a scheme of accreditation for expert accountants. The list of accredited expert accountants is noteworthy that there are currently only 63 chartered accountants of that high standard, out of a total English and Welsh membership of about 155,000. These are the accountants who have bothered to train in their second profession of expert witness, and these are the accountants who are unlikely to let you down at court.
A quick story. Some years ago, I was expert in a case where my opponent was a local chartered accountant who as a general practitioner was highly regarded. I don’t think he had been in a courtroom before. His expert report was delusionary. The judge was HHJ Behrens. As he sat down, the first thing he said was: “I see that one of the experts is Mr Makin. I have often relied on Mr Makin’s expertise when I was at the bar. If that is a problem to anyone, I will recuse myself. I will rise for 5 minutes.” Within 3 minutes, the other side had thrown in the towel and agreed to pay significant costs. That did their side, justice, and the reputation of the ICAEW no good at all.
So when you need an expert, don’t engage a wannabe or an enthusiastic amateur!
How then do you choose and instruct an expert accountant? Let us first take a step back.
Terminology
First, terminology. Disputes come in many forms, and there are rules to match. We have the Civil Procedure Rules (CPR); the Family Procedure Rules (FPR) and – you’ve guessed it – in criminal cases it’s the Criminal Procedure Rules (CrimPR). There are other rules for specialist courts, and for the various arbitration bodies. It is essential that you, and particularly your expert, is familiar with the relevant rules.
When a dispute arises
Before considering use of an expert, have a good think about the best way to resolve the dispute. There is a good guide in my blog. In criminal cases you have plea bargaining (as well as a jolly good defence); in family it’s Resolution, mediation with a MIAM and then the FDR; and in civil we have early neutral evaluation, Part 36 offers, mediation again, arbitration or just going the distance. And don’t forget expert determination, which can be much cheaper and quicker than arbitration, and remarkably versatile.
Of course, there’s always talking to the other side; useful in the early stages, but not so when positions have become entrenched after aggressive letters have been sent and received.
Do you really need an expert?
This may be a strange thing for me to say, but it is wise to have an expert whom you trust, who can cast their eye over your case at an early stage. Their advice may well be that an expert is not needed, or that a case may have really interesting legal aspects but negligible quantum, or a Pyrrhic victory.
Set up a relationship with an expert who will look at a case, and not charge you if the case doesn’t proceed. See my terms.
How do you choose an expert?
Sign in a cobblers’ window in Boston, Mass:
“High Quality – Low Price – Fast Service: choose any two”.
Is that how you choose your expert? Or, worse still, do you ask the office junior or a new trainee to find one? Wrong! It’s your case, you know what you need, so you should choose this very important member of your team.
Except, of course, that the expert isn’t on your team, or any team. See this, at CPR Part 35 at 35.3:
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
That independence is at the root of the expert’s duties. An expert can be civil and helpful, but don’t expect him to be your bestie.
The Ikarian Reefer: [1993] 2 Lloyd’s Reports 68
Know what a reefer is? For a long time I thought it was a cannabis cigarette, and it may be (though I won’t participate, thank you) but recently I learned it is a refrigerated ship.
Back in April 1985 at around 23:00 the Ikarian Reefer, travelling from Kiel to Abidjan, ran aground off the coast of Sierra Leone. Fire broke out in the engine room, the crew abandoned ship and the vessel sank. The ship owner claimed a total loss under the marine policy whilst the insurer alleged that following the owner’s instructions the vessel had been deliberately set on fire.
The dispute came before Cresswell J in the Queen’s Bench Division. His judgment in favour of the owner was appealed and subsequently overturned by the Court of Appeal in December 1994.
The outcome is not relevant for the purposes of this article, but during the hearing, the judge was rightly concerned by the parlous standard of the expert witness evidence that had been given. He also believed this caused the trial to take much longer than it should have done. He took the opportunity to set out clear guidance as to an expert’s duties and responsibilities.
These principles are now explicitly stated in the rules of each court and the various arbitration bodies. Every expert must know them. Here is the first, which first appeared in a House of Lords judgment (Whitehouse -v- Jordan) from Lord Wilberforce:
“The report of the expert must be, and be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”
You see, independence really matters.
For your further delectation
I have made reference to some blogs on my website. There are a great many more, on litigation, mediation and expert determination, and I have tried to make them light-hearted and easy to digest. So indulge! There is much to learn of the perils of choosing the wrong expert, but I draw your attention to one on a different subject.
Some years ago I had the great privilege to co-mediate a prof neg dispute with Sir Alan Ward, recently retired as Lord Justice Ward of the Court of Appeal. He had been so scathing in his judgments to parties who had refused to mediate that when he retired, he felt honour bound to become a mediator himself. This was his first mediation, so I led him – amazing! – and he was wonderful. But just for fun, have a look at this, from Alan’s judgments.
Enjoy!
