Expert evidence - entente cordiale or vive la différence?

JULY 2001 saw the seminar on Expert Investigation of Maritime Accidents, organised by the French Maritime Law Association, take place in Paris. It was quickly apparent that, while most countries have their own system and procedures when it comes to expert evidence, the differences between them are relatively insignificant - especially when compared with the gulf which divides all of these essentially civil law systems from the common law system which operates in England and other Anglo-Saxon countries.

It is not only the Channel Tunnel that has made the distance between England and the European continent seem slightly smaller in recent years. In the course of his comprehensive review of the English civil justice system, Lord Woolf, now the Lord Chief Justice of England, studied a number of other legal systems and was particularly interested by the French concept of the 'expert judiciaire'.

In France, as in other civil law systems, it is the court itself that appoints an expert to investigate the technical aspects of the case and report his conclusions to the court. In England, on the other hand, the traditional approach is that each party instructs its own expert and, if they disagree, as they usually do, the court then hears evidence from both of them and decides which one is right.

In his report published in 1996, Lord Woolf expressed his concern that in the traditional English system, "the experts sometimes take on the role of partisan advocates instead of neutral fact-finders or opinion-givers". He was also concerned about the escalation of costs generated by what he called the "litigation support industry". He did not recommend the adoption of the expertise judiciaire system, as such a radical change would never have been accepted anyway. But the new Civil Procedure Rules, which were the result of Lord Woolf's review and came into force in 1999, did introduce some changes which were, to some extent, influenced by the French system.

The main features of the 1999 rules in relation to expert evidence are:

• It is the court which decides whether - and, if so, what - expert evidence the case requires;
• The parties have no right to rely on expert evidence at all unless the court gives them permission;
• Any expert who is instructed to prepare evidence for the purpose of court proceedings has an "overriding duty" to help the court, and this takes precedence over any duty owed to the party who has instructed him;
• In appropriate cases, the court may direct the parties to appoint a single joint expert instead of each party appointing its own experts. If the parties cannot agree on the appointment of the single expert, the court may make the appointment.

It is important to remember that these are the general rules which apply to all litigation in the English courts, ranging from small property disputes or personal injury claims through to multi-million-dollar commercial disputes. The restrictions on expert evidence are particularly important as a way of reducing the cost of litigation for private individuals.

The courts recognise that in complex commercial cases it is not usually practicable to exclude expert evidence. The Commercial Court Guide, which applies to all litigation in the Commercial Court and Admiralty Court, expressly states that "cases in the Commercial Court frequently are of a size and of a complexity or nature such that the use of single joint expert is not appropriate".

On the other hand, that does not mean that every commercial or admiralty case requires a vast and expensive array of expert witnesses. The days are gone when defendants' lawyers could try to deter claimants from pursuing a claim by calling for expert evidence on every conceivable subject. Today, judges take seriously their new duty to restrict expert evidence to "that which is reasonably required to resolve the proceedings".

The new Civil Procedure Rules introduced in the UK in 1999 pursuant to the Woolf Reforms introduced changes which were, to some extent, influenced by the French system.

There are certainly some maritime cases in which a single joint expert should be sufficient to give the court the expert guidance it needs. Take for example a cargo claim arising from cargo breaking free from its lashings during heavy weather. In the past there would undoubtedly have been one expert saying the cause was just the exceptionally bad weather conditions and another saying the weather was not that bad and the cause of the damage was poor stowage.

As long as the expert is truly neutral and takes seriously his or her duty to help the court, it may well be sufficient in such a case for a single expert to advise the court on the true nature of the weather conditions and the adequacy of the stowage - especially when the judges who hear shipping cases are specialists with a lot of experience of these issues.

The French system has influenced the new English rules to some extent. However it would be an exaggeration to say that the English courts have adopted, or are ever likely to adopt, the French system, as fundamental differences remain. For example, even when a single joint expert is appointed, it is normally the parties who have to agree on the appointment and give the expert the necessary instructions. The court itself will only appoint the expert as a last resort, if the parties cannot agree.

The other fundamental differences are connected with the particularly Anglo-Saxon procedures of disclosure, or discovery, and cross-examination. Normally the French expert judiciaire is appointed at the very beginning of the case, and therefore has the advantage of investigating the facts while they are fresh in witnesses' memories. However, having deposited his report with the court, the expert has normally ended his involvement with the case.

The experts in English proceedings, on the other hand, are expert witnesses and give their evidence to the court only at a late stage of the proceedings. Normally, experts' reports are exchanged only after the parties have filed their statements of case, disclosed to each other all relevant documents, and exchanged witness statements containing the factual evidence on which they intend to rely.

Given that the parties in English proceedings are required to disclose all relevant documents, including those which may help the other party's case, this puts the expert in a good position to form a view of the case in the light of full information. This may lead to a more accurate assessment of the merits than the French system.

When it comes to the final trial of the case, the experts are normally called to give evidence in person and are cross-examined by counsel. If a separate expert is appointed by each party, and the two of them put forward conflicting opinions, cross-examination is an important way of testing the respective opinions and enabling the judge to make up his mind between the two. When writing their reports, experts should know that they are likely to be cross-examined in court on the basis of what they write. This was described in Lord Woolf's report as "an essential safeguard to ensure the quality and reliability of evidence".

In French proceedings it is possible for the court expert to be called on to attend the trial and to answer questions on his report, but, in practice, this rarely happens. That is not to say that the quality and reliability of French expert evidence is any less than in England, but it is safeguarded in a different way, by virtue of the appointment of the expert by the court itself and by the duty of experts to report their findings to the court rather than to the parties.

Each system, therefore, has its own advantages and, no doubt, disadvantages. However, both systems share the fundamental principle of the neutrality of the expert, and the reinforcement of this principle in the revised English procedure since 1999 is a welcome development.