Posted on Monday 29 June 2015 by Ulster Business

A new practice direction which came into play on 01 June 2015 is set to bring about more focus on the use of expert witnesses and the asssociated costs in commercial litigation cases.  John Dugdale,  Associate at A&L Goodbody, explains how this will impact on how an expert is instructed going forward. 

Expert reports – used to assist the court to decide on matters within an expert's area of specialist expertise – are a common feature of litigation in Northern Ireland. For example, doctors are asked to give an expert view on a claimant's injuries.  Likewise, construction claims will often be supported by quantity surveyors and claims against professionals such as architects, engineers and valuers, are invariably supported by expert evidence. Solicitors too aren't immune from such claims, but Judges are usually well-placed to consider allegations of legal negligence without assistance from an expert.

The costs of expert evidence can be significant, and the courts have long been making efforts to ensure that the cost of litigation is proportionate.

The commercial list is a specialist list within the High Court, in which a designated commercial judge hears disputes where the parties are businesses. A new practice direction on expert evidence, which applies to all proceedings in the commercial list, came into effect on 1 June 2015.

The practice direction sets out the procedure that the commercial judge will expect parties to follow before instructing an expert. Key points to consider from the new practice direction include:-

Costs Budgets

Parties instructing an expert will have to produce a costs budget, setting out the projected costs of engaging that expert to produce a report and to attend as a witness. Where the court directs a costs budget, an expert's report and his or her evidence will not be admitted unless this has been approved by the court.

Whilst already common in England & Wales, costs budgets will be a relatively new concept in Northern Ireland and the form that they will take remains to be seen. It is also not yet clear whether a "kitchen sink" approach that covers every possible cost will be required, or whether parties should aim to be more realistic in their budgeting. Given that the rationale for introducing costs budgets includes saving expense and dealing with cases proportionately, it seems likely that a realistic or conservative budget estimate will be the norm.Either way, the practice should ensure that cost management is at the forefront of parties' minds at an early stage.

Accreditation

The practice directions also sets out that, ordinarily, the court will expect an expert witness to have obtained a form of accreditation as an expert witness. Parties will, therefore, have to be careful in choosing their experts, whilst the experts themselves should ensure that they have necessary qualifications lest the number of instructions they receive dwindles. 

Hot-tubbing

Hot-tubbing is now common in commercial cases. Although that might sound bizarre in the context of litigation, the reality is rather more mundane.  Hot-tubbing is the practice of expert witnesses from the same discipline being in the witness box and available to give evidence at the same time—often cutting down on the time that experts are required at trial. The practice direction confirms that the court may direct experts to give their evidence concurrently.

Conclusion

Solicitors, experts and parties involved in litigation in Northern Ireland should be aware of the new practice direction. The requirement for costs budgets will focus parties' minds at an early stage. We can expect more judicial scrutiny—in relation to both whether expert evidence is necessary and whether the costs are proportionate to the amount at stake.

For further information, please contact John Dugdale, Associate, A&L Goodbody Northern Ireland by calling 028 9031 4466 or emailing jdugdale@algoodbody.com

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