The introduction of the 2023 Civil Procedure Rules, particularly Rule 34, marks a significant shift in the handling of expert evidence, aiming to improve its efficiency, impartiality, and clarity in Court proceedings. These provisions closely mirror the approach set out in English Civil Procedure Rules (CPR) Part 35 and its accompanying practice direction.
Rule 34 of the 2023 Civil Procedure Rules expressly provides, inter alia, that it is the duty of experts to assist the Court on matters that fall within their area of expertise. Further, this duty overrides any obligation to the party from whom the experts have received instructions or by whom they are paid. The testimony of an expert must be an independent product of the expert's opinion and unaffected. Experts assist the Court by providing objective and impartial opinions on matters within their area of expertise and should not assume the role of an advocate.
The recent English decision in Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) underscores the importance of this duty, illustrating how failure to comply, particularly through improper communication between experts and legal professionals, can lead to the exclusion of the expert evidence.
The case serves as a cautionary tale for legal professionals, emphasizing the need to limit their involvement in the preparation of the expert evidence.
Factual background and the Decision
In Andrews, 159 residents, in north Wales, initiated group litigation against Kronospan, alleging nuisance caused by dust, noise, and odour emissions from its wood processing plant. The Court allowed both parties to rely on expert evidence in dust dispersion modelling and dust analysis.
After a disagreement arose between the parties regarding the method of dust analysis, the experts began their joint discussions. In December 2021, the defendant's solicitors learned that the claimants' solicitors had been engaging in frequent communications with their expert regarding the preparation of the joint statement between May and November 2021. This included the sharing of draft statements and multiple instances where the solicitors offered content-related suggestions to Dr. Gibson, without informing the Defendant or Dr. Datson, the Defendant's expert.
In response, the defendants applied to have the claimants' permission to rely on the expert's evidence set aside, contending that the conduct in question constituted a breach of CPR and that this was the only possible sanction.
Although the Claimants acknowledged the breaches, they contended that revoking permission would be "potentially disastrous for the 159 households", considering the scale of the group litigation, the substantial costs already incurred, and the additional delay that would result from appointing a new expert.
However, Senior Master Fontaine, applying the overriding objective, ruled that the "serious transgressions" in this case justified the revocation of the claimants' permission to rely on Dr. Gibson's evidence, despite the claimants having incurred approximately £225,000.00 in fees over three years for his services.
These transgressions, far beyond typographical matters, were such that the Court had no confidence in Dr. Gibson's ability to fulfill his obligations as an expert witness. According to the Court, the continuous communication between Dr. Gibson and the Claimants' solicitors, including at least 16 comments relating to "advice and suggestions as to content," about the joint statement, suggests that Dr. Gibson "regards himself as an advocate for the Claimants, rather than as an independent expert whose primary obligation is to the court."
Therefore, the Court ruled that the revocation of Dr. Gibson's permission to provide expert evidence was not disproportionate. Specifically, the Court held that:
"It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court's decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations."
Importance of the decision and practical considerations in the Cypriot legal context
With the implementation of the 2023 Civil Procedure Rules in the Cypriot legal system, an expert who acts as an advocate, lacks impartiality, or is influenced by the instructing party is not only acting contrary to the spirit of the Rules, but is also in direct violation of their explicit provisions.
The significance of the Andrews decision within the Cypriot legal context, lies in its clear reaffirmation of the duties owed by both legal professionals and expert witnesses. It underscores that an expert's primary obligation is to the Court, requiring them to provide an objective, impartial, and unbiased opinion, uninfluenced by the pressures of litigation.
It also highlights the importance of providing experts with clear, written instructions from the outset, outlining their duties and the potential consequences of non-compliance.
Furthermore, it serves as a warning to legal professionals that any attempt to influence or shape an expert's opinion may be deemed improper conduct and if such behavior persists, the Court may impose drastic sanctions to the detriment of the influencing party.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
