The importance of time and case management for experts

The importance of time and case management for experts in many areas of legal practice expert evidence is vital and most certainly in clinical negligence. Whilst all lawyers realise that experts have other commitments (and indeed hope they do as this is why they are instructed) it is important the the workloads are managed so that delays do not occur.

My experience of experts is generally good. From time to time an individual expert is slower in providing a report or response than required but there are equally many times when urgent requests have to be made and on the whole experts tend to be very good about making time to deal with them.

Much of time management of cases is of course the responsibility of the solicitor who should make every effort to agree or argue for a realistic timetable for court rather than rush to a trial date without any possibilty of expert evidence being available.

A recent case however in the family courts has highlighted the role of the expert in complying with the timetable set by court. In X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 HH, a consultant paediatrician delayed in completing the reports on two children.

The judge confirmed that although it had to be accepted that experts could accept instructions in the genuine belief that they could comply with the timetable and circumstances could change which made this impossible, there was an obligation to notify the instructing solicitor of this as soon as possible. This would allow solicitor to make an application to court and for the court to deal with the matter in the best way possible.

In the instant case the court ordered a new expert to be instructed and confirmed that it would be difficult to justify any fees for work undertaken by the original expert.

Now there is no doubt that in family proceedings time is hugely important as there are children potentially in difficulties who need matters considered and decided. However there are plenty of clinical negligence matters in which the same urgency applies. The terminally ill, the elderly and indeed any individual who needs access to funds to provide urgent care or accommodation can all be considered as significant.

The judge did make clear that there should be coordination between court and expert in dealing with the timetable but it is also important that experts realise cases can take more time than anticipated. A case that goes to trial for example can involve days’ worth of commitment at one time which might not be anticipated at the outset. Not all cases settle and some cases where experts think settlement should occur simply do not.

The judge made clear experts should identify at the outset whether a reasonable timetable would cause a problem and whether given their other commitments they could give the case sufficient attention in good time.

In the instant case the paediatrician attended court to hear the comments about the failure to provide reports and apologised. However this did not prevent the judge ordering the release of the judgment which may well result in limited future work for the expert as a result.

It should be understood that the courts, with costs in mind, are increasingly willing and able to criticise experts where they feel they have failed to assist the court or in accordance with court orders. Experts should be conscious of this and should notify solicitors of issues as soon as possible, as otherwise they could find criticism made in a more public forum than expected.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*