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New guidance issued for the instruction of experts

14 August 2014

The Civil Justice Council has issued new guidance for the instruction of experts and the Civil Procedure Rules will be amended later this year to reflect the change. The guide is the Protocol for the Instruction of Experts and is currently annexed to Practice Direction 35.

The Guidance is vastly unchanged, apart from a new section on ‘Sanctions’ which explains that where court proceedings have commenced a professional instructing an expert or an expert may face sanctions for non-compliance with CPR 35, the Practice Directions or court orders. Cost penalties may also be imposed or the report/evidence can be ruled inadmissible under CPR 44. In extreme cases more serious sanctions are available such as if an expert commits perjury or is negligent and could face a professional negligence claim.

The guidance appears to have been drafted in view of the removal of expert witness immunity by the Supreme Court in Jones v Kaney (2011) and also from the recent band of case law following the inescapable Mitchell decision. Experts need to be aware that if they disproportionately increase the costs of litigation or are not compliant then they can face legal costs and other more damaging consequences which could affect an expert’s reputation and ability to continue practicing.

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