“Where the subject matter of the action lies in a highly technical area, it is of particular importance that the expert is scrupulous in putting forward all relevant considerations which occur to him or her as being relevant to the issues to be decided. The Court has no point of reference other than those provided by the expert. If both experts lack objectivity the Court is deprived of any proper basis to arrive at the decision.” (Pumphrey J, Cantor Fitzgerald v Tradition [2000] RPC, 128).
This quote highlights the important role that experts play in cases of a technical nature (including disputes involving IT systems).
In addition to selecting an expert witness with the skills necessary to be a credible witness before the court, there are a number of other important factors relevant to the successful use of an expert witness in IT litigation. Some of these are considered in more detail below.
Any substantial IT dispute is likely to need technical experts. One part of their role is to describe and explain the relevant technical background. Their main role is: (i) in the case of a technical project, to give evidence as to the nature and extent of technical problems or difficulties that have occurred and, crucially, identify the causes and reasons for those problems; (ii) in cases of copyright infringement, to give evidence as to whether or not the allegedly copied work could have been independently derived. This evidence will normally then be applied by the lawyers (and ultimately by the judge) to the legal framework in order to establish the legal consequences. It will often also be necessary in IT disputes to have accounting experts involved to provide evidence as to costs and losses suffered. Whilst some of the matters set out below apply equally to accounting experts, this article focuses on requirements applicable to technical experts.
The role of an expert
The role of an expert witness was reviewed as part of the overall review of civil litigation that took place in
The Civil Procedure Rules which govern the conduct of civil litigation after
The overriding duty of an expert is to the court (see CPR, r35.3) and it is made clear in the CPR that the duty that the expert owes to the court ‘overrides any obligation to the person from whom he has received instructions or by whom he is paid’. As was made clear in the Ikarian Reefer case:2
1. “Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.”
What makes a good expert?
In practice the characteristics required of a technical expert include at least the following:
4. A clear understanding of his duties to the court and the need for impartiality. He has to understand that all other requirements are subsidiary to this issue.
5. First-rate technical expertise. Be careful in IT disputes to make sure that your expert is sufficiently close to the technology to really understand what the technical issues are, particularly given the rapid developments that have occurred in the field. It is often necessary to look for someone who has direct recent experience.
6. An open mind and a willingness to consider alternative explanations that may be put to him, analysing those quickly and if necessary adjusting his views. Subject to this, he must be prepared to stand up robustly in support of his expert opinion. He will have to meet with the other side’s expert (see below) without either the parties or their lawyers in attendance and he needs to be able to support his own position with confidence.
7. An ability to express himself and explain technical issues clearly and concisely, both orally and in written reports.
8. He will have to come across well in giving evidence to the court and in cross-examination.
9. He will need to have the time and, if necessary, the back-up resources to do what will be needed within the timescales required. These will often be very demanding and this issue should not be overlooked or underestimated.
Finding an expert with all of these skills can be a difficult task. The approach which should be adopted is very much a ‘horses for courses’ one. The issue is one that should be considered and discussed with the client at an early stage.
An obvious source for a possible expert would be those that you have instructed in the past (or those who have been instructed by the other side). There is nothing like direct experience to recommend (or not) an expert. If no suitable expert can be identified, other sources include, industry bodies, and associations or other bodies which maintain details of experts, and academic institutions as potential sources of experts. In many cases, the client has access to the greatest amount of information on suitable experts.
Should a ‘professional’ expert (ie a technical expert who now makes a full time career out of giving expert evidence) be used? There is no objection to using such an expert in principle and they are often the easiest to identify quickly. These experts will generally be familiar with what is required of them, the work loads involved, how to present their evidence and matters of this nature. On the downside, consider whether such an expert may have been removed from the relevant technical area for too long. Do they have the available time? Have they maintained positions in the past inconsistent with the case being advanced?
In general it is sensible, where possible, to identify a shortlist of two or three potential experts and evaluate each of them in detail. The lawyers must be content that the individual is able to meet his or her obligations to the court and all parties must be content that the individual is somebody with whom they believe they can work and who has won the confidence of both the lawyers and the client. This is particularly important in very technical cases where the role of the expert is likely to be significant.
Single joint experts
The court has the power to direct that the expert evidence on a particular issue should be given by only one party (CPR, r35.7). Whilst this provision exists, it is generally the case in large commercial matters, particularly those of a technical nature, that the courts accept that separate experts, instructed by each party to the litigation, are appropriate. However, if there is more than one party seeking to advance the same argument, ie if there are two defendants with an identity of interest, the court is unlikely to want to hear evidence on the same issue from both parties and may well use its powers to control costs to ensure that that does not happen.
When to instruct the expert
A potential claimant has a great advantage in that it can often be in a position to search for an expert and then instruct that expert as necessary before coming under the time pressures that occur once proceedings are initiated. A defendant may only become aware of its need to retain an expert once it receives the pre-action correspondence which will normally now proceed any legal action – this may give it only a brief period before it finds itself faced with an aggressive timetable for the litigation.
An important point to bear in mind under the CPR however is that expert evidence cannot be adduced without the permission of the court (CPR, r35.4). The court also has the power to limit the expert evidence to a named expert or to a particular field of expertise and may limit the amount of the expert’s fees that may be recovered from another party. Early introduction of an expert does not therefore guarantee that his evidence will be admissible, or that costs incurred will be recoverable.
Nevertheless, as a general rule, it is advisable in any sort of serious dispute for any party to proceedings or potential proceedings to instruct an expert at the earliest opportunity. This is for a number of reasons, including the following:
10.It may not be possible to prepare the technical case without the assistance of an expert. This will be particularly relevant in complex technical cases where a Scott schedule is required.3
11.An expert may well lend credibility to the case which is being advanced. It may indicate to the other side that the matter is being treated particularly seriously and that a party is willing to invest significant sums to secure a satisfactory outcome.
12.Finding an expert can be a time-consuming task. Spending the time at the start of the matter may be better than leaving the search until a later date when time pressures may be greater.
13.Appointing an expert as early as possible gives a party the greatest choice of suitable experts. This could be particularly important in highly specialised cases in which the number of suitably qualified experts is limited and there is a significant risk that all of the parties to the litigation will be looking to instruct one of a small group of experts.
How to instruct an expert
One of the most significant changes introduced by the CPR was that an expert must set out in the expert report the substance of all of the material instructions that he or she has received. This includes both written and oral instructions. There is, as a matter of law, no longer any privilege in the instructions given to an expert, but in practice a court will only look behind the contents of an expert report and at the instructions given if it believes the statement in the expert report regarding instructions is inaccurate or incomplete.
It is clearly important that instructions are formulated carefully and clearly; that they are prepared on the basis they may have to be disclosed and that they are consistent with (and indeed emphasise) the obligations and duties of the expert to the court. They will, where applicable, also ensure that the expert addresses only those issues upon which the court has agreed that expert evidence can be given. They should be in writing; if given orally (in a meeting for example), they should be confirmed in writing.
Experts in the Technology and
Virtually all contractual IT disputes are either started in the TCC or are transferred to the TCC. For many years, the TCC was at the forefront of the court’s activities in managing the role of the expert witness in litigation. Many of the procedures which the judges in the TCC have adopted over a number of years were incorporated into the new CPR.
The essence of the approach taken by the judges in the TCC is to get the parties to focus on the key areas of dispute as early as possible in the hope of assisting the parties to achieve a settlement without the need to resort to a trial. If settlement is not achieved, the trial is in any case thereby confined to matters that are truly in dispute. The expert is seen as a crucial part of that process. As a result, the role of the expert witness in IT cases is not confined simply to the production of an expert report and the giving of evidence in the witness box.
The court will expect the parties to identify their experts at an early stage in the proceedings (ideally at the first case management conference, although in some instances there are good arguments as to why this cannot or has not been done – for example, a defence may not have been served by the time of the first case management conference). At the first case management conference (regardless of whether an expert has been identified or not), the court will order a series of steps to be taken by the experts or the parties relating to the expert evidence. These may include the following.
14.The identification of the areas in which expert evidence will be required (even though a particular expert may not have been identified, the parties will need to have considered the areas where experts’ evidence will be required).
15.A timetable for the experts to meet to seek to reach agreement on technical issues, facts and common assumptions. Experts should only address matters that are genuinely in dispute. By meeting early in the proceedings and seeking to agree issues, the scope of the expert evidence can hopefully be limited.
16.If relevant, when a joint inspection of any relevant system/software should take place and any conditions relating to that inspection.
17.Following exchange of reports, when a meeting of the experts should take place to further narrow the issues in dispute.
18.A timetable for the production of a joint report setting out the matters that have been agreed by the experts and the matters that have not been agreed by the experts.
The intention behind this interventionist approach is that, when an expert does eventually give evidence, it will be limited to those matters that the parties have not been able to agree on despite the best efforts of the parties and their experts.
What not to do
It is entirely possible for the inappropriate selection and use of experts to be fatal to a case, or to result in cases being litigated which simply should not be before the court. This can best be illustrated in an IT litigation context by a case heard by His Honour Judge John Toulmin CMG QC.4 The dispute concerned a computer system purchased by a company called Winther Brown (who were a distributor of wooden and carved mouldings and other decorative items). The main expert instructed by Winther Brown offered two types of services to his clients. The first was to provide technical consultancy services with a view to rectifying system problems. The second was as a consultant in IT cases directed towards pursuing and winning a claim, ie acting as a negotiator or a claims consultant. As the judge said:
“It is normally inappropriate for the same expert to undertake both roles [that of an expert witness and a negotiator]. In this case it is clear that [the expert] was unable to distinguish between them.”
If this was not bad enough, it emerged in cross-examination that the expert had written an article in 1995 which appeared in The Expert, the journal of the
The key issue arising from this case (and there are many other cases of a similar nature) is that any experts should fully understand and adhere to the requirement that his or her primary obligation is to the court. CVs of experts should be checked carefully, and any previous cases in which they have been involved should be reviewed and a detailed literature search should be done. It is much better to exclude an unsuitable expert at the start of an action rather than part way through a case or at the trial. It is a fair assumption that any other party to the litigation, properly advised, will carry out such an investigation to determine whether anything the expert has done in the past can be exploited to the disadvantage of the expert.
Conclusion
Selection of a technical expert is likely to be an absolutely critical part of preparing any significant piece of IT litigation. The choice is unlike choosing other advisers (solicitors, barristers, quantum experts and so on) in that the characteristics which are needed may take you to an expert who has little or no previous litigation experience. They will need to understand their duties to the court and the requirements and timescales they have to meet. It is essential to get the right expert on board as part of the team as soon as you can. n
Endnotes
1. See, for example, National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No.1) [1993] FSR 563.
2. Ibid.
3. This is a schedule used in the Technology and
4. Anglo Group plc v Winter Brown & Co Ltd 72 Con.L.R. 118(QBD (T&CC)).
| Nick Gardner is a partner in Herbert Smith’s Intellectual Property and Technology Department. He has in the last 15 years handled a wide range of major IT disputes. Most recently he acted during 2001 and 2002 for National Air Traffic Services (NATS) in defending proceedings brought by EDS, which was seeking to recover approximately £50 million in damages for the alleged breach of a contract to design, build and operate a major air traffic control computer system. The action was brought to trial in just over 12 months, and after some 3 months in trial the action settled on terms satisfactory to all parties. This article is based upon one section of a forthcoming Herbert Smith publication A Guide to IT Litigation. |
© Herbert Smith 2002
