Martin Burns: Commercial Court requires expert witnesses to be trained as expert witnesses
Martin Burns, head of alternative dispute resolution (ADR) research and development at the Royal Institution of Chartered Surveyors, reflects on rule changes in the Northern Ireland courts.
The High Court of Justice in Northern Ireland has issued a game-changing Practice Direction which affects all those who wish to act as expert witnesses in commercial proceedings.
Expert witnesses play a central role in the judicial process. The key constituent of the evidence they give is their specialist subject matter knowledge. Expert witnesses are instructed because they are very knowledgeable about their particular field. An expert will know lots more about a specific subject than most people, including many of their peers. They will almost certainly know more than the judge hearing the case in court does.
The role of the expert is fundamentally about communicating information about the expert’s specialist area to the court. The court needs the evidence of the expert witness to understand something about the specialist area in order to connect properly to the issues at the heart of a dispute and deliver an informed decision.
Exceptional subject matter expertise is inevitably a key requirement for anyone wishing to act as an expert witness, but it is not the only qualification they must have. Expert witnesses must have a sound appreciation of the workings of legal proceedings and have a more than firm grasp of rules and protocols for giving evidence, including the duties set out in the Practice Direction.
The Practice Direction, which applies to all proceedings in the Commercial List from 1 June 2019, emphasises the extent of the duty owed by anyone who is instructed to give or prepare expert evidence for court proceedings. The primary message is that the duty to the court overrides any obligation the expert might owe to an instructing party or person(s) who pay the expert’s fees.
The Practice Direction offers a reminder to expert witnesses that they should follow best practice and be mindful of the objective of the Rules of Court, which is to enable the court to deal with cases justly. Experts should have regard to the objectives of the Pre-Action Protocol for Commercial Actions and they should sign an Experts Declaration.
At the heart of the Practice Direction is a key message to expert witnesses that they will be expected to be qualified, not only in their specialist subject matter, but also as expert witnesses. In other words, they should be trained and accredited in the role and duties of the expert witness.
Experts who fail to comply with the Rules of Court or the Practice Direction or are responsible for excessive delay may cause the parties who instruct them to be penalised in costs orders. The court may even order that expert evidence provided by non-compliant experts will be disbarred.
The Practice Direction is clearly a move in the right direction to improve the quality and impartiality of expert witness testimony in the Northern Ireland commercial courts. It is also likely to generate demand for high quality expert witness training and accreditation programmes. Proper training should help ensure that professionals understand the duties attached to the expert’s role and give written and verbal evidence correctly. Formal accreditation by a recognised training provider will signal that an expert witness will properly discharge the role. It gives instructing parties and the court confidence that experts understand the relevant law and the primacy of their duty to the court.
Expert witness training and qualifications helps experts to work efficiently and positively with lawyers, and properly define their briefs. Experts who are well trained acquire high levels of confidence. The qualifications they achieve through training enables them to demonstrate that they have first-rate courtroom skills and have mastered the art of dealing with robust cross-examination.
In summary, instructing parties naturally desire experts who have high levels of technical expertise. The courts desire this too, but they also require experts to know how to discharge the role expertly and dispassionately. A key message arising out of the issue of the Practice Direction is that experts must be trained and accredited in the role.
- Martin Burns is head of alternative dispute resolution (ADR) research and development at the Royal Institution of Chartered Surveyors.