CODE OF PRACTICE: EXPERT WITNESSES ENGAGED BY SOLICITORS
This Code is intended to assist experts to ensure that they can effectively meet the needs of solicitors, so those solicitors can in consequence better serve their clients and the interests of justice. They are intended to be of general application and there may be additional requirements relating to cases in specialised areas of law.
Acceptance of instructions
1. Experts should ensure that they receive clear instructions from solicitors (in writing unless this is not practical) specifying the solicitor’s requirements, which should cover:
(a) Basic information such as names, addresses, telephone numbers, dates of birth, and dates of incidents;
(b) The type of expertise which is called for;
(c) The purpose for requesting the report, and a description of the matter to be investigated;
(d) Questions to be addressed;
(e) The history of the matter, identifying any factual matters that may be in dispute;
(f) Details of any relevant documents:
(g) Whether proceedings have been commenced or are contemplated, the identity of the parties, and whether the expert may be required to attend to give evidence;
(h) Whether prior authority to incur the estimated fees needs to be obtained by the solicitor before the instructions can be confirmed;
(i) In the case of medical reports: where the medical records are situated (including, where possible, the hospital record number); whether or not the consent of the client/patient to an examination and disclosure of records has been given; and whether or not the records are to be obtained and provided by the solicitor;
(j) In cases concerning children, a note that the paramountcy of the child's welfare may override the legal professional privilege attached to the report and that disclosure might be required.
2.Instructions should be accepted only in matters where the expert:
(a) Has the knowledge, experience, expertise, qualifications, or professional training appropriate for the assignment;
(b) Has the resources to complete the matter within the timescales and to the standard required for the assignment.
3. A time limit for the production of the report should be agreed. When the agreed time limit cannot be met, notice of the delay should be communicated at the earliest opportunity.
4. Experts should make clear to solicitors what can and cannot be expected on completion of the assignment. In particular, as soon as possible after being instructed, they should identify any aspects of a commission with which they are unfamiliar, or not professionally qualified to deal, or on which they require or would like further information or guidance.
5. If any part of the assignment is to be undertaken by parties other than the individual instructed, then:
(a) Prior agreement must be obtained from the instructing solicitors;
(b) The names of the individuals to be engaged and details of their experience and qualifications must be given.
6. Where a firm has been instructed, the names of the individuals to be assigned to the project and details of their experience and qualifications must be given on request.
Terms of Business
7. Experts should provide Terms of Business for agreement prior to the acceptance of any instructions. These should include:
(i) Daily or hourly rates of the experts to be engaged on the assignment or alternatively an agreed reasonable fee for the project or services;
(ii) Treatment of travelling time;
(iii) Travelling or other expenses or outlays;
(iv) Rates for attendance at court (note that this may be subject to a fixed limit);
(v) Provision for payment of a specified fee in the event of late notice of cancellation of a court hearing;
(vi) Provision for preferred timing of payment.
8. Experts must comply with the Code of Conduct of any professional body of which he/she is a member.
9. The identity of the client or any information about the client acquired in the course of the commission shall not be disclosed by the expert except where consent has been obtained from the client or where there is a legal duty to disclose.
10. A solicitor is usually under a duty to pass on to the client all information material to the client's case; exceptional circumstances where this may not apply, and where it will be necessary for the solicitor to decide whether to disclose such information to the client, include cases where it could be harmful to the client because it will affect the client's mental or physical condition (for example, a medical report disclosing a terminal illness).
11. Experts will bear in mind that:
(a) When giving evidence at court, the role of a witness of fact, or an expert witness, is to assist the court and remain independent of the parties;
(b) A solicitor must not make or offer to make payment to a witness contingent upon the nature of the evidence given.
12. Experts will disclose to solicitors at the start of each project any personal or financial or other significant circumstances which might influence work for the client in any way not stated or implied in the instructions, in particular:
(a) Any directorship or controlling interest in any business in competition with the client;
(b) Any financial or other interest in goods or services (including software) under dispute;
(c) Any personal relationship and/or professional relationship, and the nature thereof, with any individual involved in the matter;
(d) The existence but not the name of any other client of the expert with competing interests;
(e) Whether the expert has worked with the expert instructed by the opposing party (if known).
13. Any actual or potential conflict of interest must be reported to the solicitor as soon as it is raised or becomes apparent and the assignment must be terminated.
14. Experts should consider whether there is a need to see the client, visit a site etc, and if so, agree the practical arrangements with the solicitor in advance.
15.In the case of medical reports:
(a) If the doctor has treated the patient before, ensure that the patient's consent has been obtained to the release of the information contained in the notes and that such consent is informed consent;
(b) If the doctor has not treated the patient before, ensure that the patient's consent is obtained to the examination and to the disclosure of their records to the doctor; and, where practicable, consent of the other doctors involved in the care of the patient should be obtained before releasing information held by them.
Preparation of the report
16. The report should cover:
(a) Basic information such as names and dates;
(b) Purpose in presenting the report, and description of matter investigated;
(c) The history of the matter;
(d) Methodology used in investigation;
(e) Details of any documents used;
(f) Facts ascertained;
(g) Inferences drawn from the facts, with reasoning;
(h) Summary of the expert's qualifications and experience.
17. Plain English should be used and any technical terms explained.
18. Copies of any document or papers referred to in the report should be provided; any items referred to may be subject to recovery by commission in any court proceedings and experts should ascertain from instructing solicitors whether or not in view of that it is appropriate to refer to documents provided by the solicitor; it is unnecessary to copy widely and easily available documents.
19. The expert's final report should be dated and signed by the individual(s) who will if required give evidence in support of it.
Complaints procedure (if requested)
20.Experts should provide a procedure for resolving complaints by solicitors, including the following:
(a) If there is a complaint, the expert must give the solicitor client the name of the person to contact in the event that they are dissatisfied with the service provided;
(b) In the event of a complaint being made, the expert should:
(i) Tell the solicitor what the procedure will be for resolving the complaint;
(ii) Respond appropriately offering any appropriate redress in a timely manner;
(iii) If the solicitor remains dissatisfied, give them the names and addresses of any professional or trade bodies of which the firm or the individuals assigned to the commission are members;
(iv) Identify the cause of any problem and correct any unsatisfactory procedure.
(c) In the event of allegations relating to an Expert's failure to adhere to the above Code of Practice or any breach of their contract with the instructing solicitors, The Law Society of Scotland reserves the right to exclude such an Expert from the Directory of Expert Witnesses.
References to the Directory
21. An expert listed in the Directory may describe themselves as so listed. The expert may not refer to this listing as a qualification or describe themselves as approved, accredited, or recommended by The Law Society of Scotland