Expert Evidence: A Cautionary Tale
March 25, 2020
By Simon Ross
Personal injury expert Simon Ross reflects on the importance of early conferences with experts.
Introduction
On 3rd March 2020, Robert Buckland, the incumbent Lord Chancellor and Secretary of State for Justice, confirmed that electronic signatures are permissible and legally valid if used in commercial and consumer documents [1]. This declaration followed a Law Commission report, published in September last year, that looked at the electronic execution of documents, including deeds [2].
As the legal profession moves further into the digital age, this news brought to mind an incident that had occurred at a Joint Settlement Meeting; one that highlights the importance of knowing your experts and exploring all crucial issues in conference at an early stage.
The JSM
The details of the claim itself are not important to the story. It will suffice to say that I was representing a claimant at a JSM held prior to the date for delivery of joint statements from the experts. Upon my arrival, my opponent greeted me with news that a joint statement had arrived from one of the key pairs of experts. I was taken by surprise by this development as was my Instructing Solicitor. I requested a copy and, following a cursory glance, it appeared entirely unremarkable and bore the digitally reproduced signatures of both experts.
However, after reading it carefully, keen to learn how this piece of evidence might affect the day’s negotiations, I was disappointed to discover that my client’s expert had seemingly performed a volte face and agreed with the defendant’s expert on all matters of significance. This was puzzling, not least, because I had initially had a very productive conference with my client’s expert during which we had carefully explored all of the issues in detail. I also knew the expert to be someone who stood their ground when challenged.
Knowing all of that, I immediately telephoned the expert to query the apparent unexpected change of heart and was fortunate to discover the truth. The expert had been off work due to ill health and, in an effort to be helpful, their secretary had added the digital signature to the joint statement that had been prepared in draft by the defendant’s expert and sent across for consideration. The contents of the document did not reflect the expert’s opinion at all. It will not surprise the reader to learn that the joint statement was promptly disregarded and negotiations proceeded in the manner originally planned.
Discussion
The use of digital signatures on documents has been permitted by the Civil Procedure Rules for some time. CPR r.5.3 states as follows,
“5.3 Where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means”.
The editorial guidance in the White Book recognises that the definition of ‘document’ in this context is open to debate [3], but in Fitzpatrick -v- AIG Europe Ltd (unreported, 1st July 2015) DJ Jenkinson in Liverpool held that the electronic signature of witness statements was CPR compliant. By extension, this would cover a joint statement by experts.
The concerns about the provenance of electronic signatures will perhaps provide the material for another article, but the take away points that I wish to reinforce concern the importance of understanding your expert’s opinion of your client’s case. It was only because I had had a lengthy conference with the expert at an early stage and had explored their views in depth, along with testing how robust they might be to challenge, that I immediately had concerns about the joint statement. Without that knowledge, I may have simply accepted the contents of the document at face value.
Testing your expert evidence early is crucial because in the main it will be too late to take action following receipt of a joint statement. Where there is a range of opinion on a particular point, ask the expert to explain and justify their position within that range. You will want to be alive to any vulnerabilities in the claim as soon as possible. A full understanding of your expert’s opinion will also assist you to prepare any pertinent questions under Part 35.
The CPR state that where experts reach agreement during their discussions, that agreement is not binding on the parties (see r.35.12), but in practical terms it may prove extremely difficult to challenge the conclusions or to ‘change horses’ at a late stage. Judges routinely direct experts to liaise and to prepare joint statements with the expectation that issues will be narrowed and that necessarily envisages reasonable concessions being made. After all, the expert’s overriding duty is to the court and not to the instructing party (see r.35.3).
In Guntrip -v- Cheney Coaches Ltd [2012] EWCA Civ 392 the Court of Appeal cited with approval Mr Justice Teare’s comments in Stallwood -v- David [2006] EWHC 2600 (QB) that the mere fact an expert had changed their mind cannot be a reason of itself to allow the disappointed party to adduce evidence from another expert. This reinforces my point. It is essential that conferences are held with experts at the earliest opportunity. That said, if your expert has changed their opinion at the Joint Statement stage and on a matter of particular significance there may be case specific grounds to seek a second opinion and that should always be explored.
[1] See the ministerial statement “Government response to the Law Commission report Electronic Execution of Deeds” HCWS 143 03.03.2020
[2] “Electronic execution of documents” Law Com No. 386 HC 2624
[3] White Book 2019 Volume 1 page 212 at para 5.3.1
