A short article published recently on the medico-legalminder.net website sought to criticize expert reports (and therefore the experts that produce them) on the basis that reports are “too long” and “too loose”.
The Ministry of Justice produces and maintains the three “Procedure Rules” for use in the UK Courts. These are:
- The Civil Procedure Rules (CPR);
- The Criminal Procedure Rules (CrimPR); and
- The Family Procedure rules (FPR).
In each case the rules lay down certain basics in relation to experts. All three sets of rules have sections dealing with the content of a report. In the Civil Procedure Rules this is Part 35 and in particular 35.10.
In the Criminal Procedure Rules this used to be Part 33 and since October last year is Part 19 and in particular 19.4.
In the Family Procedure Rules this is Part 25 and in particular 25.14, Practice Direction 25B paragraph 9.1. Paragraph 9.1 is extensive and requires, amongst other things that the expert lists out all the source material and that opinion must “take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;”
All the directions refer back to the instructing solicitors and their letters of instruction. There is a duty on solicitors to set out their requirements of the expert and in the case of single joint instruction there is a requirement (usually from an order of the court) to agree the instructions to the expert between the parties in advance.
While it is always the case, obviously, that anything that is “too long” or “too loose” is undesirable, the fact is that a solid framework has been developed over the last 20 years or so resulting initially in the sweeping reforms of Lord Woolf in April 1999 and followed fairly recently with the Jackson reforms in 2013. It is therefore the duty of all instructing solicitors to make their instructions clear and concise and for experts to conduct themselves in a manner consistent with the spirit of the relevant procedures.
I have produced reports varying in length from 5 or 6 pages (which, with mandatory inclusions, declarations, front covers etc. actually means about one page of expert opinion) to over 1,000 pages written in several volumes over 3-4 years. I have yet to be instructed in a case as big as the Chilcot enquiry which stretched to 12 volumes and 2.6 million words but the scope of that report was described variously as “enormous”, “unprecedented” and "no British document and no British witness will be beyond the scope of the inquiry". There is therefore sometimes every justification for a report to have a “loose” scope and to be quite “long”.
If experts get it wrong, then they should be held to account but the same should apply to the other contributors to the case and to the instructions. More often than not, if I am questioned about length and scope of my reports it is that they seem too short (for the money spent) and too narrow. Both criticisms, however rare, may demonstrate that some instructing lawyers still don’t fully understand that the report is only a tiny part (albeit the most important) of the work; the reading in, the research, the interviewing, the conferences with Counsel, the experiments and the tests all preclude the actual report itself.