Expert witnesses have historically relied on the ability to get an extension to a deadline but in the post-Jackson era, is this still possible?
Whilst it would be preferable for an expert to meet a deadline for the submission of an expert report, pre-Jackson, the authors of expert reports could be fairly confident that report deadlines would be extended substantially. Michael Taub, expert witness and partner at Baker Tilly, gives his opinion.
Extensions were normally granted by agreement between the parties and the possibility of the expert not being able to achieve any final deadline was considered remote. Further, the possibility of the expert suffering any form of penalty for missing a deadline was rarely, if ever, a matter for an expert to be concerned about.
How have things changed?
In the post Jackson world there is still some flexibility for extending deadlines. For example, since 6 June 2014 the new “buffer” rule has come into force allowing parties to extend time limits within certain constraints so long as a hearing date will not be placed in jeopardy. However, on balance, non-adherence to deadlines is a far more precarious matter for the expert than previously. Even if the parties agree between themselves to extend a deadline, it is possible that the court could ignore such agreement and impose penalties including a refusal to accept late expert reports.
There are real life examples. In Paul Chambers v Buckinghamshire Healthcare NHS Trust, the court refused to extend the deadline for an expert report on behalf of the defendant. As a consequence, the defendant was precluded from relying on any evidence from that particular witness.
What are the implications for experts?
In a worst case scenario, where an expert is precluded from submitting a report, the court might merely accept the evidence of the other expert. This could be devastating for the client. Could the client then bring an action against the expert for damages? In theory, the answer must surely be yes. Following the case of Jones v Kaney in 2011, an expert can no longer see himself immune from suit and, in the event of a potential claim, should consider talking to insurers.
Is such an action likely to be successful?
The expert might take comfort from the fact that there would be difficulties. Firstly, there might be complex arguments over liability and contributory negligence. Secondly, it would probably be very difficult to quantify the loss that might have arisen. It might be treated as a loss of chance but how would the potential different outcomes be identified and the probabilities quantified? Would the defendant expert be in the paradoxical position of having to argue that his own report would have been of little value to his client and would not therefore have affected the outcome of the case significantly?
The fact that it might be difficult for an injured party to pursue such a case against the expert should provide little consolation. If an action is commenced, even where a satisfactory settlement is reached, there might have been substantial cost both in terms of professional fees and management time.
Perhaps more importantly, there might also have been damage to the expert’s reputation amongst his peers, colleagues and potential providers of further expert witness instructions. For example, in all but the most specialised of cases, instructing solicitors have a choice as to which expert to instruct. Accordingly, an expert who is known to have failed to meet a deadline might be disadvantaged severely. In the absence of mitigating circumstances, could it be construed as negligence for a solicitor to instruct such an expert?
A possible consequence of an expert failing to meet a deadline is that additional costs might be incurred by one or both parties. This could be bad news for the expert. The court has the power to make a costs order against an expert who acts in flagrant reckless disregard of his duties to the court.
So in the post-Jackson world there is no doubt that the expert is at risk and the expert should adopt measures to ensure that such risk is minimised. For example, the expert’s engagement letter to the instructing solicitors and/or the client should specify the following:
- That the expert should be informed about critical dates within the timetable and any changes thereto:
- That it is the client’s and instructing solicitor’s responsibility to provide proper instructions and the information that the expert requires in order to prepare the report; and
- The achievement of any timetables, whether already notified or to be notified in the future, is dependent upon the provision of information in a timely manner:
- The expert should be realistic with the instructing solicitors at the outset as to how much time will be required to complete the report. As a general rule, initial time estimates are generally exceeded. Therefore, the expert should make reasonable allowance for contingencies;
- Before making any commitment to the instructing solicitors, if relevant, he should ensure that a team with appropriate skill sets is available to undertake the work;
- If during, the course of the expert’s work, it transpires that additional information is required, such information should be requested as early as possible;
- If it appears likely that additional time will be required to complete the report, the expert should notify the instructing solicitors as early as possible, explain the reasons and retain contemporaneous evidence thereof, for example, emails and file notes;
- If the expert is unable to prepare a full/final report by the stated deadline, he should consider submitting an interim report suitably caveated. Although not ideal, in some cases, this might cause no or little problem as the expert might have ample further opportunity to deal with the issues by way of a supplemental report and/or the experts’ joint statement
Finally, it should be borne in mind that an expert’s involvement does not generally end with the submission of his expert reports and witness box appearance. The expert is also able to examine critically the evidence of other experts and even witnesses of fact and thereby assist counsel in the preparation of cross examination material. An expert should offer to provide such input as this could help to reduce or eliminate any loss suffered through the client’s inability to rely upon the expert’s own evidence.
In conclusion, in the post-Jackson world, there is a theoretical risk of an expert being penalised financially or otherwise as a result of failing to meet a deadline. However, such risk can be managed through a combination of proper planning, recording and communication with instructing solicitors.