Experts’ discussions and solicitors’ instructions

Related Sector: Expert Witness

It is settled law that instructing lawyers are not permitted to get involved in drafting the joint statement, but can parties get access to each other’s communications with their expert witness?

The point has been raised but not yet fully argued and not yet decided in the case of Frasers Group PLC v Saxo Bank A/S and another [2024] EWHC 188 (Comm).

The claimant’s solicitors, Reynolds Porter Chamberlain (“RPC”), made the application following an email exchange with Clifford Chance (“CC”) for the Second Defendants.

Prior to the experts’ discussion, RPC emailed CC stating that that they were not communicating with their experts about the contents of the joint statement and asking CC to confirm that they were adopting the same approach.

CC replied that they had communicated with their experts about logistics and timing and “to raise issues of clarity or completeness with a view to ensuring that the joint statement is as helpful as possible for the court in identifying the key issues between the experts and articulating clearly each expert's position on those issues."

RPC then applied for an order for disclosure of CC’s instructions to their experts before the discussion.

The judge, HHJ Pelling KC, although not making any ruling, which he left to the trial judge as the matter was going to be coming to trial in a matter of 3 weeks after the date of the application, did make the following observations:

1. Communications between the solicitor and the expert witness are subject to litigation privilege.
2. This is subject to CPR 35.10, which states that experts’ reports must contain a statement setting out the substance of all material instructions.
3. Instructions are not privileged but a court will not order disclosure of documents containing such instructions   "... unless it is satisfied that there are reasonable grounds to consider the instructions in the expert's report to be inaccurate or incomplete".
4. The judge gave no reason in principle why CPR 35.10 should not also apply to instructions given ahead of a joint meeting.

In this case, there was nothing in the correspondence to suggest that CC has asked their experts to make any factual assumptions.

That may not be the end of the matter. The application can still be heard at the trial. There is nothing in the judgement to indicate that the parties had fully argued the point about instructions other than the issue of disclosing what factual basis the experts were being asked to proceed on.

That is not the only matter contained within “instructions”. Under paragraph 55 of the Guidance for the Instruction of Experts in Civil Claims 2014, “instructions” means just that, what the solicitor has requested the expert to do, as well as all material sent by the solicitor.

It is therefore possible that there will be a ruling that the instructions given before a discussion may be disclosable in some circumstances.

Experts should be careful that they are being instructed properly. They should:

-        keep records of all instructions (written or oral)

-        be vigilant not to accept any instruction to avoid or defer reaching agreement on matters within their expertise (paragraph 77 of the Guidance)

-        not send their solicitor a draft of the joint statement, only the final signed version

-        not seek, or respond to, input on the contents of the joint statement

The lawyers can raise issues about the joint statement with all the experts involved (i.e. all parties) only in exceptional circumstances if there are serious concerns that the wording could mislead the court as to the experts’ true opinions (see paragraph 10.48 of the King’s Bench Division Guide).