ISSUE 53 Expert Witness Journal - Journal - Page 18
Expert Report Writing Part One:
General Principles
In the first of a series of three articles, partner Hugh Johnson and senior paralegal Dulcie
Osborne consider the essential elements and formatting of an expert report.
With most litigation being resolved before trial, the
importance of high-quality expert written evidence
cannot be overstated. The written evidence determines how each party evaluates their prospects of success and the potential settlement value of the claim.
The expert’s role in determining issues of liability, causation and the extent of harm is, therefore, central to
a successful claim.
confidential advice to a solicitor and subject to legal
privilege. To ensure that initial advice is not made subject to any disclosure requirement, it is important the
document is clearly advisory. It should usually be
marked as a “draft for litigation advice purposes”. In
contrast to any later report intended for court use, the
initial advice should never be addressed to the court.
Both the solicitor and advising expert should be aware
that stepping beyond advisory work may bring a report within the court’s reach. In Rogerson v Eco Top
Heat & Power [2021], the claimant obtained initial advice but later sought to change expert. Unfortunately,
their advising expert had also conducted site visits and
jointly interviewed witnesses with the defendant. He
had, in essence, strayed into the role of a formal expert to the court. This led to a suggestion of “expert
shopping”. The initial confidential pieces of advice
were ordered to be disclosed as a condition of the
court permitting a new expert.
Core principles
1.1. Report for the court
Irrespective of who instructs the expert, the expert’s
overriding duty is to help the court on matters within
their expertise (Civil Procedure Rule (CPR) 35.3).
This rule is intended to prevent experts from being
partisan on any issue or, worse, being perceived as a
“hired gun” with an opinion for sale. Since the 2011
case of Edwards Tubb v JD Wetherspoon (a case where an
expert was swapped), it has been well established that
the court controls the evidence before it and
addressed to it.
1.3. Within your expertise
It may sound obvious, but experts must keep to their
sphere of expertise. If an expert is minded to comment on issues that relate to other disciplines, it is important to qualify their comments by deferring to the
discipline of an expert who may better assist the court.
This avoids any criticism of overreach. In the recent
patent case of Sycurio Ltd v PCI-Pal PLC [2023], one of
1.2. Initial advice – the role of privilege
While this article primarily addresses the role of the
expert to the court, it is important to address the distinct nature of initial expert advice.
The first expert report is usually obtained before the
commencement of court proceedings, with the intention of exploring a possible claim. By its nature, it is
EXPERT WITNESS JOURNAL
16
F E B R UA RY 2 0 2 4