Effect of Jackson reforms on expert witness contracts

It is now well established that expert witnesses may be sued for damages resulting from their negligence, Jones v Kaney (2011).

But an issue which has received little or no consideration is the potential for damages in contract arising from the engagement of an expert witness. The Jackson reforms and the new emphasis on adherence to court timetables have thrown this aspect of instructing experts into sharp focus and have significant implications both for experts, and those who instruct them.

Jones confirmed (per Dyson) that an expert who acts in civil litigation owes his client a duty to act with reasonable skill and care. He owes this duty in contract (section 13 of the Supply of Goods and Services Act 1982) and in tort (Hedley Byrne & Co Ltd v Heller [1964] AC 465).

The basis upon which expert witnesses offer their services varies enormously. The terms of instruction can be determined by the instructing solicitor or by the expert. Many experts have short-form terms and conditions setting out the essential basis on which they agree to be instructed. A relatively limited number of solicitors/insurers have similar terms regarding their experts.

Rarely, if ever, do these terms of engagement identify what happens in circumstances where the report is not prepared on time, and this leads to loss to the ultimate client.

I am not aware of a reported case concerning the production of an expert report as a contractual matter. In practice, the fact that an expert report was delayed or late was rarely a significant issue for the court. The courts hitherto were reluctant to penalise any party for the failure of an expert to produce the report in accordance with the timetable.

But, since April 2013, the courts have taken a much stricter line on failures to comply with a timetable, even in circumstances where the failure has no prejudicial effect on the other party or the conduct of the litigation. 

This ‘strictness’ has been applied somewhat unevenly between courts and individual judges (anecdotally) as the reforms bed down. But courts have now declined to permit a party to rely on an expert report served outside the date specified in the timetable simply because it is late. This approach is unlikely to be exceptional.

When instructing an expert, it was exceedingly uncommon for the delivery date of their report to be integral to the instruction. Similarly, the expert’s terms of engagement would routinely identify a date by which the expert would use their best endeavours to produce the report. Rarely, if ever, would it be a term of the contract/engagement that the report would be prepared by a definite end date.

But if (say) Mr Snodgrass FRCS fails to produce his report by the date ordered and, as a consequence, the party concerned is refused permission to rely on it, the impact on damages may be considerable. The claimant may now have no evidence regarding the particular injury; or the defendant is left with no rebuttal expert evidence, and no joint report.

In either instance, the paying party has probably suffered a loss which may be difficult to quantify; but is quantifiable. Can that party bring a claim in contract against the expert?

The starting point is the terms on which the expert is engaged. Is it on the client’s standard terms or those of the expert (assuming either exist)? Assuming the client’s terms prevail:

• Does that contract make time of the essence regarding delivery of the report by a certain date?  
• Has the client thought to make it a condition precedent as to the expert’s engagement, that the expert can produce the report by that date?
• If unavoidable circumstances arise, do the terms of engagement identify what steps the expert is required to take, and by when, if the report is going to be delayed?   
• Have the terms of engagement made it clear of the potential losses that may result from a failure to adhere to the date?
• Has the expert been given, as they ought to, the Order concerning the production of their report?

If the terms of engagement are sufficiently clear the party affected by the delay is in the best possible position to recover the losses they can identify from the defaulting expert. Plainly, with the court’s new focus on adherence to court timetables, instructing parties need to review whether their existing terms of engagement are sufficiently clear and robust. Experts will wish to insert exclusion clauses and/or limitation of liability clauses. Parties will need to consider how they respond to such clauses. Instructing parties with inadequate contractual terms to protect their client in the event of expert default will undoubtedly become the next port of call in the search for damages. Jackson may herald an explosion of future professional negligence actions.

Of course, insofar as the litigation landscape has changed for experts regarding the production of reports, it may also have changed for counsel, regarding the production of schedules, requests for information and similar documents. But that is, perhaps, a topic for a different article.

Colm Nugent is a barrister within the insurance division of Hardwicke Chambers