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The use of expert evidence in fraud cases - an emerging trend?

Since the implementation of the Jackson Reforms and certainly since Mitchell, the Courts have adopted a stricter approach to following the CPR.  Is that stricter approach now beginning to inform the Court’s view as to the use of expert evidence in fraud cases, resulting in the Courts imposing single joint experts?

Background

Defendants regularly obtain engineering evidence in order to defend fraud cases and that evidence is often a key component in the Defendant’s overall case.  We have experience of a number of recent case management decisions where the Courts have refused the Defendant leave to rely upon forensic engineering evidence:

  • even though the evidence has been obtained in accordance with the pre-action protocol; and
  • even though the evidence supports the Defendant’s case.

Counter intuitively, and to add salt into the wound, the court has then granted permission to the Claimant to rely upon the original inspection report, despite the fact that the report has been obtained without reference to the pre-action protocol.  A further order has then been made that the parties agree upon a single joint expert.

We believe that it would be helpful to take this opportunity to remind you what the parties’ obligations are in respect of expert evidence under the Pre-Action Protocol and the rules governing expert evidence under the Civil Procedure Rules.

What does the protocol say?

The Pre-Action Protocol for Personal Injury Claims contains guidance in respect of the instruction of experts:

2.14 – The protocol encourages joint selection of, and access to, experts. The report produced is not a joint report for the purposes of CPR Part 35.

3.15 – Before any party instructs an expert they should give the other party a list of the name(s) of one or more experts in the relevant speciality whom they consider are suitable to instruct.

3.17 – Within 14 days the other party may indicate an objection to one or more of the named experts.

3.18 – If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably.

3.19 – If the second party does not object to an expert nominated, he shall not be entitled to rely upon his own expert evidence within that particular speciality unless:

a)     the first party agrees

b)    the court so directs

c)     the first party’s expert report has been amended and the first party is not prepared to disclose the original report

To increase the prospects of the court granting permission to rely upon expert evidence obtained pre-action, we recommend that the protocol is followed to the letter, particularly in respect of the nomination of the expert.

What does the CPR say?

Once proceedings have been served the Civil Procedure Rules then apply. Part 35 of the CPR governs the use of expert evidence:

35.1

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

35.4

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.

35.7

(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.

(2) Where the parties who wish to submit the evidence cannot agree who should be the single joint expert, the court may –

(a) select the expert from a list prepared or identified by the relevant parties

(b) direct that the expert be selected in such other manner as the court may direct

35.11

Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.

(Paragraph 7 of Practice Direction to rule 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)

  • Is it proportionate to have separate experts for each party on a particular issue with reference to –
    • The amount in dispute
    • The importance to the parties
    • The complexity of the issue
    • The instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts
    • Expert evidence is to be given on the issue of liability, causation or quantum
    • The expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion
    • A party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol
    • Questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert
    • A conference may be required with the legal representative, experts and other witnesses which may make instruction of a single joint expert impractical
    • A claim to privilege makes the instruction of any expert as a single joint expert inappropriate

Guidance

If fraud is suspected at an early stage, then it is usually imperative that the vehicles are examined by a suitably qualified engineer, but in all cases where there is a desire to obtain engineering evidence:

  • Follow the Pre-Action Protocol
  • Nominate the expert, or experts
  • If there is no response to the nomination within 14 days, then the expert should be instructed
  • Disclose any favourable report as soon as is possible
  • Having regard to paragraph 7 of the practice direction, it may be sensible to permit the claimant to raise any questions of the expert

Where a nomination is received and the nomination is unacceptable, then an objection should be raised to the nominated expert and, where possible an alternative expert proposed instead. 

It is common practice in motor claims for the claimant to serve an initial report that offers a valuation of the cost of repairs to the claimant’s vehicle and/or pre-accident value and these reports are often obtained without any reference to the pre-action protocol whatsoever.  In instances such as these and where the contents of the report are not accepted, then objection should be raised upon receipt of the report and the claimant’s failure to follow the protocol should be noted.  The defendant should then look to commission their own evidence as soon as possible, again in line with the protocol.

Contact

We will continue to monitor the approach taken by the Courts over the coming months and report anything of interest, but in the interim we would like to hear from you with your own experiences.

Stuart Clemson Associate (G.Inst.L.Ex)
Insurance
DD +44 1772 55 4129

By Stuart Clemson

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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