The drafting of Experts’ reports
[2011] EWHC 1669 (pat) TEDR Volume 16 Issue 2
The Facts
This case concerned an action by the Claimant against the First Defendant for an alleged infringement of a patent. Technical expert evidence was thus required.
The Issues
The Court discussed and gave guidance upon the instruction of expert witnesses, particularly in complex cases such as patent cases.
The Guidance given
Mr. Justice Arnold commenced by setting out the salient sections of CPR Part 35 and the Practice Directions. These included.
Experts – overriding duty to the Court
35.3
(1) It is a duty of experts to help the Court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they get paid.
Contents of the report
35.10(1) An expert’s report must comply with the requirement set out in Practice Direction 35.
(3) The expert’s report must state the substance for all material instructions, whether written or oral, on the basis of which the report was written.
Practice Direction 35 – Experts and Assessors:
2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
2.3 Experts should consider all material facts, including those which might detract from their opinions. The Practice Direction also sets out the following requirement for the form and content of the expert’s report:
3.1 An expert’s report should be addressed to the Court and not the party from whom the expert has received instructions.
3.2 An expert’s report must:
(3) Contain a statement setting out the substance of the facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
(4) Make clear which of the facts stated in the report are within the expert’s own knowledge;
(5) Say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;
(6) Where there is a range of opinion when the matter is dealt with in the report –
a) Summarise the range of opinions;
b) Give reasons for the expert’s own opinion;
(7) Contain summary of the conclusions reached; The protocol for the instruction of experts to give evidence in civil claims (emphasis added):
2. Aims of Protocol
2.1 This protocol offers guidance to experts and those instructing them in the interpretation of and compliance with Part 35 of the Civil Procedure Rules (CPR 35) and its associated Practice Direction (PD) 35 and to further the objective of the Civil Procedure Rules in general. It is intended to assist in the interpretation of those provisions in the interests of good practice but it does not replace them. It sets out standards for the use of experts and the conduct of experts and those who instruct them. The existence of this protocol does not remove the need for experts and those who instruct them to be familiar with CPR 35 and Practice Direction 35.
3. Application
3.3 Experts, and those instructing them should be aware that some cases may be “specialist proceedings” (CPR 49) where there are modifications to the civil procedure rules. Proceedings may also be governed by other protocols. Further, some Courts have published their own guides which supplement the civil procedure rules and proceedings in those Courts. They contain provisions affecting expert evidence. The expert witnesses and those instructing them should be familiar with them when they are relevant.
4. Duties of experts
4.1 Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the Court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them. The experts must not serve the exclusive interest of those who retain them.
4.3 Experts should provide opinions which are independent, regardless of the pressures of litigation. In this context, a useful test of “independence” is that the expert would express the same opinion if given the same instructions by the opposing party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage the role of advocates.
8. Instructions
8.1 Those instructing experts should ensure that they give clear instructions, including the following:-
(c) The purpose of requesting the advice or report, a description of the matter(s) to be investigated, the principle known and the identity of the parties.
In the light of the rules, the Learned Judge went on to consider the role of an expert witness particularly in patent litigation. He observed that in this particular field the experts would normally be scientists or engineers, who were frequently academics not experienced in giving expert evidence or in the patent system. For those reasons expert witnesses would require a very high level of instruction from the lawyers. Furthermore whilst experienced authors, they would frequently require considerable help from lawyers in drafting their report. Sometimes, lawyers would draft the reports and the draft would be duly amended by the expert. In terms of the lawyer’s role, they are required to understand what the expert says but in addition both parties need to frequently discuss the issues to allow the report to be prepared.
The Learned Judge continued that it had to be recognised that there is a risk of a loss of objectivity on the part of the expert, even though they were remaining independent and impartial. Lawyers needed to keep the requirement for the expert to remain objective at the forefront of their mind. If they did not they would be doing both the expert and their client a disservice because the expert could be subject to criticism during cross examination and in the Court’s judgement. A partisan expert would frequently be exposed in cross examination which could therefore reduce, if not eliminate, the value of the evidence to the client’s case.
Ultimately, the drafting of the report should not major upon the strong points of the case. It is still necessary for it to be a balanced account within the document upon which the witness will be cross examined. There should also be an awareness that the lawyers for the opposing party are likely to comb through the expert’s published papers and any other publicly accessible records in an attempt to find something of relevance to the issues that have not been disclosed by the expert in the report. The expert stands to be accused in cross examination of failing in his duty to the Court if it appears to favour the opposing party and it has not been made clear within the report itself.
There are very many cases in which judges have criticised expert witnesses for failing to be objective or in other ways. From time to time experts do succumb to giving partisan evidence which the judge observed was clearly unacceptable. However, the judge wished to re-emphasise that the lawyers who instruct expert witnesses bear a heavy responsibility for ensuring that an expert witness is not put in a position where he can be made to have failed in his duty to the Court even though he conscientiously believes that he has complied with that duty. The Courts should also be cautious about criticising an expert witness purely on the basis of omissions from his report unless it is clear the fault does lie with the expert rather than those instructing him.
The Conclusion
This case really reiterates the guidance that is given in the CPR to experts. There is nothing intrinsically wrong with a lawyer assisting an expert to draft the report upon the basis of the expert’s own evidence. However, both parties bear a very high duty to ensure that the report that is finally disclosed gives a fair and balanced account of what the expert actually means lest any omissions are exposed in cross examination to the detriment both of the expert and the lay client.
