Related Sector: Expert Witness
As well as giving evidence at court and compiling expert reports, expert witnesses can also be asked to provide what is termed, a brief advisory report or a screening report.
What are brief advisory reports?
What do experts need to bear in mind when providing one?
Nick Deal, Barrister and subject matter expert at Bond Solon discusses the components of this type of report and the practical issues that experts need to consider.
1. What is a “brief advisory report”?
Essentially, this a short report provided by an expert in a particular field after consideration of some, but not usually all, the material in the possible dispute. It is sought by instructing solicitors before proceedings are issued, when they are weighing up the merits of their client’s case. If an expert is instructed by a claimant, they will be asked to work out whether there is enough merit in the claim to warrant launching proceedings. If an expert is instructed by a defendant, they will be asked to consider whether the client has a strong enough defence to the claim to warrant defending it.
Instructing solicitors might need, for example, an opinion as to whether there is evidence to suggest that the defendant’s actions fell below the standard expected under a contract of engagement for services (e.g., a breach of contract claim) or below the standard of a reasonably competent practitioner (e.g. clinical negligence claim or professional negligence claim).
They may also need expertise to assist them to identify specific areas, actions or inactions which failed to meet the required standard. A lawyer may not know what the applicable standards are, but someone who works in that field will do and so their opinion is sought.
In that sense, what is being sought by the solicitor is no different from the usual report from an expert witness. What is different, however, is the timing of the request and the concept of a “brief advisory report” or “screening report”.
As mentioned above, the instruction will take place at the earliest stage of the litigation process before proceedings have been launched. The solicitor will want to know if it is worth pursuing a claim or defence.
In a civil action, a claimant must send a letter before action to the defendant, setting out what their claim is. A brief advisory report or screening report will help a solicitor determine whether or not their claim has any merit and, if it does, what specifics they can allege on the currently available evidence.
A solicitor instructed by a defendant will be able to show their expert witness the letter before action and the expert will be able to help them to understand whether their client has avenues for defending the claim or not and, if they do, how strong they are.
Because it is at such an early stage, there may be limited information available. Pursuing a claim and unearthing evidence is a costly process, hence the need to review the merit before embarking on that path.
(ii) The concept of the brief advisory report
Essentially, the solicitor is trying to limit the costs at this stage.
They will therefore ask the expert to provide the report based on limited information and at a reduced cost.
It is important to recognise straightaway that what they are doing is legitimate and, indeed, encouraged and endorsed by the overriding objective of the civil procedural rules to deal with cases justly and “at proportionate cost.
In other words, if there is nothing in the claim, a claimant will need to know that at the outset and avoid the costs of issuing proceedings which are not going to succeed. Equally, a defendant will need to appreciate at the outset if they have any prospect of defending against all, or part of, the claim; this may lead to them settling at an early stage before the costs of the action start to mount up.
2. Should the expert witness provide a brief advisory report?
As it is a legitimate request from the solicitor, it is legitimate for an expert witness to provide such a report. In principle, no criticism can be made of an expert for doing so.
3. What should the expert witness look out for?
There are several issues to think about here, which come under two broad headings:
An advisory report is produced to help the solicitors assess the merits of the case. It will come under the heading of documents which are privileged against disclosure to the other side as this category includes material which is produced by a third party (the expert witness) for a solicitor, once litigation is contemplated or pending. Litigation privilege allows parties to seek advice on the merits of the claim without having to disclose that to the opposing party in the dispute.
An advisory report is not subject to the court’s oversight and will not (usually) be seen by the court. The expert, therefore, is not bound by the duty to assist the court on matters within their expertise in the way that an expert witness instructed to provide a full court report would be.
That being said, it would be wise for experts to write it as if under this duty to the court because this will help them remain objective and evidence based and not overstate the merit of the claim or the defence.
The best insight you can provide your instructing solicitor is evidence based and genuine. Of course, they may press you to be more supportive of the client’s case but, once they understand the basis of your advice, they will be able to advise the client and prevent a wasted investment.
The expert will still owe a contractual duty to the solicitor to take reasonable care and will owe a duty of care to the client to meet the standards of the reasonably competent expert in their field in providing the advice. Again, the expert’s genuine expert view is sought here, and anything less would fail to meet the contractual standard and the duty of care standard.
(ii) Practical issues
There are two broad considerations to focus on: firstly, the contractual arrangements; secondly, protecting the expert.
(a) Contractual arrangements.
The expert must clarify with the instructing party what is being sought and on what basis. Essentially, this boils down to three matters:
- Quantity of information. Find out from the instructing party exactly how much information is going to be provided. It is best to pin them down to the number of pages; this will help the expert to give a reasonable estimate of time and cost.
- Timescale. Find out what their timescale is for receiving the report, the reason for the timescale and its flexibility, or rigidity. They may be up against a time limit within which to bring the action, in which case they will have no flexibility. The expert needs to know if they can commit the time to writing the report within the limits requested. If they cannot, the expert should not accept instructions. An expert who accepts instructions, knowing the time constraints, and then fails to provide the report within the agreed time, may well find themselves facing an order for third party costs.
- Cost. Agree a fee. Alternatively, agree to do the work at no charge. Either is acceptable but it is essential to be clear about what has been agreed before embarking on any work. The fee should reflect the amount of reading to be done (see the quantity of information point above), the time taken to think through the issues and the time to write the report.
It is essential to make sure that you have a written agreement. That can be done as simply as writing a confirmatory email with the agreed points, or more formally in a contract.
(b) Protecting the expert
There are three matters to consider here:
- The heading. Head the document as “Screening Report” or “Brief Advisory report” and “Not for Use as a CPR35 Report” to make it clear to the reader that this report is for limited use only. As we shall see later, there may be circumstances where the report comes into the hands of the other party. Using this heading will protect the expert from unjustified criticism.
- The introduction. In the opening paragraph, it is good practice to reiterate that this report is a brief advisory report or a screening report and not for use in court. In addition, that it has been prepared on the basis of limited information (specify exactly what information has been provided) and with a limited time in which to draw conclusions. Finally, that it represents a preliminary view which may change as other information becomes available.
- The language of the report. It is vital to keep the language evidence based and not judgemental; the expert should maintain the language of the independent expert, not the language of the advocate trying to advance a case. It is all too easy to adopt the language of the advocate. For example, an advocate might say “we can argue a breach of duty on this basis”; the expert should be saying “there is evidence of falling below accepted standards of practice in the following areas”.
Anyone reading this article may ask why it is necessary to protect the expert if the report is not going to be disclosed. This is a fair question.
The problem is that it could be disclosed accidentally by being included in material shared with the other side. Or it could be referred to in a subsequent report, which then allows the other side to request a copy of it.
In short, the expert should always write the report on the basis that it might be seen by the other side and by the Judge. In that sense, it is far safer to maintain an independent tone and evidence-based language, to be wholly transparent about the limitations under which it has been produced and that it therefore represents a provisional view which may be subject to revision in the light of further material.
One last thought: an expert is never obligated to undertake instructions if they do not wish to do so. If the terms of producing the brief advisory report are not acceptable to the expert, they are perfectly entitled to refuse to accept those instructions.
Author: Nicholas Deal, Trainer and subject matter expert
This article was first published in the Expert Witness Journal