Business skills for experts in the light of Jones V Kaney?

1. Business skills for experts in the light of Jones V Kaney? The Bond Solon Expert Witness Conference 11 November 2011

2. Since Jones V Kaney … Will experts need to act differently or have enhanced business skills? Who better to ask than those who instruct experts on behalf of their clients – instructing solicitors. Even before Jones V Kaney solicitors were saying …

3. Get it right • First time • On time • Every time

4. Read the instructions • Some experts do not read the instructions and do not answer the question. • If experts need more information they should ask for it. They don’t read their letters of instruction. • They should take time to understand the case and the other dynamics which are in play.

5. Is it your field of expertise? • Experts have to ensure that the matter is within their field of expertise. • It is always better to know if something is slightly outside an expert’s experience right at the beginning of the case so that an alternative or way round the problem can be considered.

6. Know your subject • Anticipate the questions you will be asked and the answers • Understand the art of giving ground and being reasonable whilst maintaining core opinion • Have a knowledge of the process – don’t assume and don’t guess

7. Reliability • Producing advice on time • Answering the questions asked • Keeping to the opinion expressed • Be able to justify the opinion • If a change of mind, let instructing solicitors know early • Anticipating certain questions

8. Mention any problems at the outset • The expert needs to be independent and unbiased. If an expert has already helped with the case on an informal basis, this needs to be properly considered at the time of formal instruction. • If a single expert knows there is a problem with the case, it is better to say so as quickly as possible before large fees are incurred.

9. Since Jones V Kaney …. • Has the approach taken by solicitors changed? • A small survey conducted of a number of litigators indicated the following:

10. Is Jones V Kaney a problem for solicitors, which will make them more cautious when instructing experts? “I think one of the key points is that if an expert is negligent in performance of any part of their task, then questions must inevitably be asked of the instructing solicitor as to why they chose that expert and what checks they made to check that expert was on the face of it competent to deal with the matter in hand” “I would be concerned that Jones V Kaney would open up a collateral attack on my expert and me for choosing him” “In my view, Counsel should be involved as early as possible in the decision as to which experts to select, and Jones V Kaney reinforces this point” “It must also bring into question, even more forcefully than before, the role of medical reporting agencies and the dependence of solicitors on their choice of expert, rather than the solicitor carrying out the enquiries themselves”

11. Will these issues make solicitors approach appointments differently? “We now bring it to the expert’s attention in the instructions that they are now potentially liable in negligence for all aspects of their role as experts and we attach a copy of the Supreme Court’s decision” “In terms of how we now approach the appointment of experts, we will review carefully any additional exclusion or limitation of liability clauses and advise the client accordingly” “We have not received any change in terms from our experts, and it is this which might cause more of a problem for us if they attempted to restrict their liability. Then it is unlikely we could continue to use them”

12. Professional indemnity cover is being looked at more closely by solicitors “If I were to instruct someone I didn’t know, I would certainly investigate his / her credentials carefully and require evidence of professional indemnity cover” “It would be wise to ask experts to prove they have the appropriate insurance cover, but the litigator needs to be careful not to misinterpret the policy and advise the client accordingly” “Some experts, if asked for details of their professional indemnity policy, are putting up their prices” “The decision is likely to result in increased premiums for experts and if so, these will be passed on to the client.” Question – will insurers now perceive, post Jones V Kaney, that their risks are now greater because of disgruntled claimants making claims?

13. There is also a new regulatory compliance issue for solicitors to consider when appointing … The SRA Code of Conduct 2011 – outcomes focused regulation Chapter 6 includes the following mandatory outcome: “O(6.1) whenever you recommend that a client uses a particular person or business, your recommendation is in the best interests of the client and does not compromise your independence”

14. What is this likely to mean for experts? A small survey of some experts indicated some possible complacency ….

15. Complacency or reality? “It is unlikely that the lifting of an expert’s immunity will concern many experts” “The expert witness colleagues with whom I have spoken are unanimous in their view that this decision will not have much effect in practice because expert witnesses are still only offering an opinion” “The more worrying consideration for experts will be one of reputational damage on which their work is based”

16. What should experts now be doing? • Check your professional indemnity policy, to ensure it is sufficient to cover the kind of claims you might face in relation to this aspect of y our work. It should include cover for an action in negligence arising from opinion evidence given in legal proceedings • Obtain a clear and detailed letter of instruction from the client • Read the instructions carefully and if in doubt, ask questions • As solicitors are now likely to be more cautious as to the experts they appoint, make sure your ‘CVs’ are clear and accurate as to your area of expertise • Do not stray outside your area of expertise and ensure you are current in the subject area on which you purport to be an expert • Sharpen your focus and always err on the side of caution

17. What should experts now be doing? (continued) • Check your reports carefully • If you change your mind, say so at the earliest possible opportunity • Ensure you have read and understand any guidance given by your professional body in relation to your duties and obligations when acting as an expert. For example: “When an allegation of professional negligence is made against an RICS member, the court is likely to take account of the contents of any relevant Guidance Notes published by RICS in deciding whether or not the member had acted with reasonable competence” – from ‘Surveyors acting as Expert Witnesses’ NB – professional bodies generally have power to investigate and bring disciplinary proceedings against members for breaches of their duties as expert witnesses – and they do instigate such proceedings

18. Terms and conditions - to regulate the relationship • Need to be clear, concise and relevant • Difficult to avoid liability by use of terms and conditions where you are being held out ‘as an expert’ • Review your terms and conditions, including any limitations of liability • Keep limitation levels under review – [to the level of your PI insurance cover?] • Consider limiting liability where for example the consequences of negligence would far outweigh the fee charged. BUT – will solicitors accept limitations? – see earlier feedback

19. A final thought …. Get it right • First time • On time • Every time

20. Any questions?