EWJ FEB 59 2025 web - Flipbook - Page 29
What Happens When Acting
as an Expert and Investigator
Paul Grainger writes about expert witness assignment, investigations and acting as a
S166 skilled person.
dant’s legal teams. The relevant experts are then
required to review the other expert’s report and
identify areas of agreement and disagreement.
What happens when you are instructed as an
Expert Witness?
The role of an Expert Witness, whether in a civil case
or a criminal case, is to advise the Court on matters
where the Court does not have the required level of
expertise to determine key aspects of the matters
under consideration. The rules and procedure for
the instruction of an Expert Witness in civil legal
proceedings is set out in the Civil Procedure Rules.
The experts will then normally hold a meeting to
formally devise a statement of agreement and disagreement. This is a formal written report setting out
the points in each of the experts’ reports on which
they agree and those points on which they do not
agree. This Statement of Agreement and Disagreement is provided as evidence to the parties and the
Court.
An Expert Witness assignment will always begin with
an enquiry from a law firm or in-house legal counsel
representing either the complainant or the respondent/defendant. At the enquiry stage, the instructing
legal counsel will clarify the nature of the case, the expertise required, the scope of the report required, the
timetable for the report and whether the instruction
will be to report to one party or whether it is to act as
a Single Joint Expert.
If a case proceeds as far as a trial, it is possible that the
expert witness will be called upon to give evidence in
Court and to be subject to cross-examination by legal
counsel acting for either the complainant or the
defendant.
In my experience, most cases have been resolved
before they get to trial. The expert witness reports are
often helpful in reaching an agreement between the
parties on areas of dispute,thus enabling settlement of
the case without the need for a lengthy and expensive
trial.
We will then carry out an internal check to see
whether the firm or anyone in the firm has previously
acted for or provided services to either the complainant or defendant (a conflict of interest assessment). Assuming there is no conflict of interest, we will
confirm the same to instructing legal counsel and
prepare a cost estimate. Based upon this legal counsel
will normally then issue formal instruction and provide relevant documents to us (known as an
evidence bundle).
The process referred to above is that which is
applicable to legal proceedings in the civil courts (usually the High Court). The process for the instruction
of an Expert Witness in a Tribunal is very similar.
An Expert Witness may also be instructed to advise
the Court in criminal cases. The procedure is set out
in the Criminal Procedure Rules. The procedure is
very similar to that for civil cases.
The letter of instruction will normally set out exactly
what the Court has agreed it requires the Expert Witness to investigate and report on.This will normally
be quite specific and is designed to assist the parties
and the Court to resolve the case.
Sometimes, in order to provide expert opinion, an
expert may be asked to carry out some investigation
work. This may be instructed in civil litigation cases as
part of building evidence in a case. Similarly, it may be
instructed for similar reasons, by a police force or
other investigating body, in criminal cases.
The Expert will then read the evidence bundle and
analyse the evidence it contains in the light of the
specific matters and issues that the Expert has been
instructed to report upon. This can be quite time
consuming.
What usually occurs during an FCA visit and how
should firms prepare for it?
The FCA normally only carries out supervisory visits
to the vast majority of regulated firms as part of a thematic review of a part of the financial services sector or
in response to regulatory concerns raised via desk
based monitoring or similar information that has
come to the attention of the FCA. The FCA will already have a lot of information about the firm and its
senior managers because of the regular regulatory
and financial reporting that FCA regulated firms have
to make during each year.
Once the evidence has been analysed and taken into
account, the Expert can then form a view relating to
the specific matters and issues as requested in the instruction letter. The Expert will then prepare a report
setting out his or her opinion.
Unless the Court has appointed a Single Joint Expert,
it is normally the case that both the complainant and
the defendant will have instructed Expert Witnesses.
Where this is the case, the Expert Reports are
exchanged between the complainant’s and the defenEXPERT WITNESS JOURNAL
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