In our latest article, retired barrister, Giles Eyre, considers the circumstances in which an expert might wish to withdraw from a case and how it can be done.
The issue
Once an expert has accepted instructions to produce a CPR-compliant report, they are under a duty to co-operate with the court process.
For example, in fulfilment of that duty, the expert must attend court to give evidence and to be cross-examined on the report if required to do so (see paragraph 85 of the Guidance for the Instruction of Experts in Civil Claims). The expert must also attend a joint discussion with another expert of similar expertise who is instructed in the case, and produce a joint statement with them. For each step within the proceedings, the expert can expect to be paid in accordance with the applicable terms of engagement, which will be either the expert’s own terms or those of the instructing lawyer, or of the medico-legal reporting agency through which the expert is instructed. Under these terms, the expert may expect to be paid up front, or on completion of the task, or at such other time as may be agreed. The rate at which the expert will be paid will be set out in the terms.
Problems that may arise in the expert/lawyer relationship
Sometimes things do not run smoothly. The Guidance at paragraph 27 recognises the potential for difficulties arising out of the state of the expert’s instructions:
‘Where experts’ instructions are incompatible with their duties, through incompleteness, a conflict between their duty to the court and their instructions, or for any other reason, the experts may consider withdrawing from the case. However, experts should not do so without first discussing the position with those who instruct them and considering whether it would be more appropriate to make a written request for directions from the court. If experts do withdraw, they must give formal written notice to those instructing them.’
Difficulties may also arise if relations with the instructing lawyer break down. This could include for non-payment, changes in the instructing lawyer, where the client has decided to take their business elsewhere, if the lawyer has ceased to practice, or if the lawyer drops out of the picture and the client continues the claim acting in person. What then is the arrangement between the expert and the new lawyers or the client in person? And what are the obligations of the expert to continue to act in the claim and to co-operate with the court process?
Where the original instructing lawyer drops out, it is unlikely that the original terms of engagement provide for a change of contracting party. Fresh terms of engagement will need to be agreed between the expert and the new lawyers or the client in person. If these are agreed, they will bind both parties and the expert will have settled terms of remuneration and must continue to act in relation to the further stages of the litigation. The expert can’t decide to take this as an opportunity to get out of the particular case by refusing to enter into a fresh agreement, as that would be in breach of the expert’s duty to the court to co-operate with the court process. It is important to appreciate that in many situations, if the expert who has taken some part in the claim is no longer available to the instructing party, then the party will be left without an expert in that field to support the party’s case, with likely fatal consequences for the case.
But what if the expert declines to enter into fresh terms of engagement for good reason, such as having valid reason to believe that the new contracting party is not good for the money or has a history of failing to make payment, or the new contracting party refuses to agree to pay the expert’s fees as previously agreed in the litigation, or the new contracting party fails to comply with agreed terms as to payment of the expert’s fees? Or, in a case where there is no change in lawyer, what happens if the lawyers are in breach of the terms of engagement in failing to pay the expert’s invoices as they fall due and, therefore, the expert reasonably fears that they will not be paid for work already done or work still to be done?
Involving the court
The court will be reluctant to allow a change of expert part way through the litigation, except for good reason. If there is a failure to agree new terms of engagement because the expert’s original charging rate or other terms of remuneration are unacceptable to the new lawyer or the client who is now acting in person, or if the instructing lawyer is in breach of payment terms or otherwise appears not to be good for the money, the expert who has already produced a report cannot reasonably be expected to continue in the case, even though the consequences for the party in the litigation might well be most severe.
In those circumstances, the expert must set out in writing to the instructing party the reasons why they consider it no longer appropriate to carry on acting and ask for agreement that they may now withdraw and have no further involvement, failing which they will apply to the court. Should the instructing party fail within a reasonable time to accede to this, or to remedy the issue which gave rise to this situation in the first place, the expert must request directions from the court and specifically seek permission to withdraw from the claim. The procedure for this is set out in the Guidance at paragraphs 28 and 29.
‘Unless the court otherwise orders, any proposed request for directions should be sent to the party instructing the expert at least seven days before filing any request with the court, and to all other parties at least four days before filing it.
‘Requests to the court for directions should be made by letter clearly marked “expert’s request for directions” containing:
- the titles of the claim
- the claim number
- the name of the expert
- why directions are sought, and
- copies of any relevant documentation.’
How this has played out in court
In the recent case of Doyle v HDI Global Specialty SE [2023] EWHC 2722, the claimant’s expert declined to attend the joint meeting of experts.
The lawyers had declined to sign the expert surveyor’s terms of engagement. It was a requirement of the expert’s professional regulatory authority that there should be a signed document. None of the expert’s invoices for work carried out in relation to this case and other cases being carried out for the same lawyers had been paid. The expert had some other rather alarming allegations, including that the lawyers used the expert’s name and signature on reports he had not prepared.
He applied to the court to have his name removed from the court record, although without giving notice of this to his instructing lawyers. He made it quite clear in emails that, in the circumstances, he had no intention of continuing to act in the particular claim. Although the court permitted use of the written report of the expert at trial, in the absence of oral evidence from the expert, the claim was dismissed. There was no suggestion that in these circumstances the expert was under any obligation to attend.
Other difficulties in continuing as an expert
The duty to co-operate is, however, just that – a duty to be co-operative with the court.
Circumstances may genuinely arise which make it difficult for the expert to continue in the case in which instructions have already been accepted and a report produced. Where the expert has become seriously ill or has retired, perhaps earlier than had been expected but for good reason, then they should notify the instructing lawyer at the earliest opportunity, indicating why it is no longer possible or appropriate for them to continue in the claim, and asking the lawyer to apply to replace them. Should the lawyer fail to act, then the expert should apply to the court for directions, again explaining in detail how the situation has arisen. If the expert has taken a long-term secondment abroad, or for some other reason is simply not available in the jurisdiction to continue to act, a similar process should be followed, although the court might well seek a way around any potential problem through video links, etc.
The nearer the case is to a hearing, and, therefore, the greater the difficulties involved in replacing the expert at this stage of proceedings, the more reluctant the court will be to accede to the removal of the first expert, particularly if there are practical ways of working around the expert’s new situation.
The court also has a discretion over the costs incurred as a result of a change in expert. It is inevitable that the instructing lawyer will incur costs for obtaining replacement services and might, depending on the circumstances, seek those additional costs from the departing expert, or wish to recover money spent on the fees for services which are now wasted. The other side in the litigation will also have to incur additional costs in considering any replacement report, obtaining the comments of their expert on the replacement report, and possibly an amended report from their expert. If a joint discussion has taken place, those costs will have been wasted in their entirety.
They are likely to seek to recover those costs from the party who had instructed the departing expert, and the court might well make payment of this a condition for permitting the replacement of an expert. The departing expert may well then be pursued by the former instructing lawyer to re-imburse them for these costs on the basis that the expert was in breach of the their retainer in not seeing the case through. The departing expert will have to consider whether their professional indemnity insurance would cover them for these circumstances.
The important factor for any expert seeking to depart the claim for one of these reasons, therefore, is to act reasonably, give as much notice as possible, and only to do so if it is really and objectively necessary. The expert needs to be seen to still be seeking to co-operate with the court process, even if that is in the context of the expert being unable to continue to act within the court process.
Conclusion and learning points
The expert starts from the proposition that once instructions are accepted to act in a claim, they are under an obligation to continue to provide their services for the rest of that claim, including attending the joint discussion and attending court to be cross-examined.
However, the expert is not expected to act in a manner which might be in breach of any professional rules or to continue to act in a claim if it is likely to result in the expert not being paid for work done or to be done, or if the professional relationship between expert and lawyer (or litigant in person) is in some other way seriously undermined.
The expert must take reasonable steps to seek to resolve such issues in communication with the lawyer (or litigant in person).Only if matters cannot be resolved appropriately or agreement be reached that the expert is to be freed from any further obligation in the claim, should they apply for directions (following the procedure in paragraphs 28 and 29 of the Guidance) formally seeking the court’s direction that they are released from further involvement in the claim.
Other circumstances could unusually arise in which an expert needs to withdraw from the claim. The expert must give as much notice as possible of such a need and act reasonably if it is really necessary to withdraw from the claim, but recognise that there may be financial implications in so doing.
Giles Eyre is a retired barrister and an Associate Member of Deka Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published by Professional Solutions Publishing and sold through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .
Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p. and ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’ (normal price £69.95) is available at £50.00 plus £4.95 p&p only direct from the author by email to geyre@dekachambers.com. More information about the books and reviews are available at www.Medico-LegalMinder.net