EWJ FEB 59 2025 web - Flipbook - Page 76
What to Expect When you
are Instructed by a Solicitor
As an instructing solicitor Dr Jock Mackenzie highlights the details experts should expect to see
in letters of instruction, and why any omissions should be raised early on.
The 2014 Guidance for the Instruction of Experts in
Civil Claims document, which accompanies Part 35 of
the Civil Procedure Rules, says that before instructing
an expert it is important to establish their expertise
and experience, their familiarity with the duties of experts, their ability to produce a report and deal with
questions within a reasonable time and at proportionate cost, their availability to attend trial, and the
absence of any conflict.
7. The letter will usually require that the expert
provides to the instructing solicitor certain documents
or information to assist with the latter being able to ascertain the suitability of the expert for formal instruction. These requests will typically be for:
a) An up-to-date CV, from the perspective of both
the expert’s medical background and medicolegal
experience;
b) Up to date terms and conditions (T&Cs), upon
which the retainer will be based, including hourly rate,
travel costs, cancellation charges, fees for court attendance, etc. It is worth noting at this point that it is possible that the solicitor may ask for an estimate – or even
a quote – to ‘cap’ the potential fees. In such a scenario,
the expert may wish to see the formal instructions and
gain an understanding of the extent of documentation before committing to an agreed fee;
In my view, there is a fairly standard process that
should be followed in an expert’s instruction. My experience is as a claimant clinical negligence solicitor,
but the principles are largely referable to all experts.
The nature and terms of an expert’s appointment are
usually initiated by way of a letter of approach prepared by the instructing solicitor. Assuming the appointment is agreed, this is followed by the letter of
instruction, which sets out the scope of the instruction.
c) The split of the expert’s work between claimant and
defendant, as it is generally deemed important for experts to act for both sides, as this can be demonstrative
of a balanced, impartial approach;
These are important documents which, prior to any
work being carried out, set out the basis upon which
the expert will be acting.
d) How many reports the expert prepares every year’;
and,
The letter of approach should usually contain the
following:
e) Whether the expert has ever given oral evidence at
trial or other tribunal, as the solicitor my want to know
whether there have been any judgments involving the
expert, whether positive or adverse.
1. The prospective parties’ names (or the actual
parties’ names if proceedings have been issued), and
the names of any key personnel in the history, so that
the expert can identify from the outset whether there
is any obvious conflict.
Even if the expert is deemed suitable in principle,
there may still be some negotiation over the T&Cs before formal instruction can take place. However, this is
a huge subject in its own right and beyond the scope
of this article. Nevertheless, once the T&Cs have been
agreed to the satisfaction of both expert and solicitor,
then the formal letter of instruction can be issued.
2. Which party the instructing solicitor acts for;
importantly, is the expert being asked to act in a
single joint expert (SJE) capacity?
3. A short summary of the case and issues that the
expert is being asked to address, so that the expert
knows whether they are a suitable expert or whether
the case falls outside their remit and areas of expertise.
The instruction letter is more detailed and sets out
the scope of the expert’s instruction. Much as with the
letter of approach, this letter should set out clearly at
the beginning who the parties are and what the
expert’s role is.
4. A short indication of the anticipated nature of the
expert’s instruction, for example whether the report
is to be a report on breach of duty, causation or
condition and prognosis, etc.
In my view, the letter should then address the
following:
5. An anticipated timeframe for the report, including
whether there may be any degree of urgency, for example because the case is coming up against a limitation deadline or is in a court timetable.
1. It should contain all documents and information
that is likely to be relevant to the expert’s role.
Depending on exactly when in the proceedings the
expert is being instructed, broadly these will usually
include:
6. It can usually be assumed that the expert’s role will
include answering questions, attendance at conferences and court, etc., but this may benefit from
confirmation.
EXPERT WITNESS JOURNAL
a) Court-related documents, such as pre-action protocol documents, statements of case and orders, and in
particular the order for directions if the expert is
74
F E B R UA RY 2 0 2 5
