Professional Solutions (Learning and Development) Ltd ICAEW Forensic and Expert Witness Group Annual Conference 2017 Writing Expert Reports Lynden Alexander Professional Solutions (Learning and Development) Ltd www.prosols.uk.com

Agenda for the Presentation Relationship with the Instructing Solicitor Producing the Expert Report Writing Opinion Questions

Relationship with the Instructing Solicitor

Use of Experts in the Litigation Process Identifying and selecting the cases to take forward Identifying expert issues to be addressed Producing expert reports Answering technical questions to clarify issues Attending the meeting of experts Producing the joint statement Attending one or a series of case conferences Giving oral evidence in court

Trends in Expert Report Writing Harman v East Kent Hospitals NHS Trust (TURNER J - Quoting Sir James Munby) “…too many expert reports…, are simply too long, largely because they contain too much history and too much factual narrative… I want to send out a clear message: expert reports can in many cases be much shorter than hitherto, and they should be more focused on analysis and opinion... In short, expert reports must be succinct, focused and analytical. But they must also of course be evidence based.”

Concerns of Instructing Solicitors Deadlines: fixed by the court, not by the parties, in respect of: expert reports, answers to questions, joint discussions, provisions of the joint statement. Documents: the expert needs all the relevant documentary evidence required to complete the report and must be proactive in letting the solicitor know what is needed Merits of the Case: a reasonable and realistic view of the merits Fees: delays in payment are usually down to the solicitor being out of funds – make sure terms of appointment are clear Feedback: is not usually a part of the process and where an out of court settlement has been agreed, such enquiries may not be welcome

Professional Consequences of Inadequate Reporting Complaints to an expert’s professional body Legal action against the expert for breach of duty Recovery of additional costs paid to the opposing party Recovery of costs not recovered from the opposing party

Independence of the Expert Witness Accident Exchange Ltd v Nathan George Broom and Others Autofocus provided dishonest evidence in court about the car hire rates payable for legitimate claims for car hire from people involved in no-fault road traffic accidents. The defendants were found to have perjured themselves in producing the evidence having signed statements of truth on expert reports. The purpose of the fraud was to reduce the cost of civil claims and so attract instructions to act. The defendants were imprisoned for 18-24 months for perjury.

Producing the Expert Report

Preparing the Expert Report What are the key-issues to be addressed? What is the appropriate methodology/approach? What is the appropriate structure and order? How best to present the factual basis? What technical explanations are required? How best to present the opinion? What kind of summary is appropriate?

Court’s Decision Making Process Issue Facts Relevant to the Issue Expert’s Reasoning Process Opinion/Conclusions (Applying the Appropriate Legal Test)

Establishing the Factual Basis Clarifying and agreeing instructions Establishing the methodology or approach to the evidence Carrying out investigations, interviews or assessing documents Reading documentary evidence Reading the evidence of other witnesses (factual / experts) Researching regulations, professional standards or guidance Understanding the statute or common law context Identifying ‘blind spots’ in the factual basis Assessing likely scenarios for ‘missing facts’ Assessing facts for relevance or importance

Help the Court to Understand the Evidence Valuing a Business as a ‘Going Concern’ A prospective purchaser would be interested in the past performance of XYZ Limited to understand the context within which the business operates, the market sentiment towards the company and the trends in its key markets. The company’s past performance would provide an initial guide to its future performance. However, a prospective purchaser would seek to make adjustments to the available financial information to reflect its assessment of the company’s likely future performance.

Admissibility of Skilled Facts Will the evidence assist the court in its task? Does the witness have the necessary knowledge and experience to give the evidence? Is the witness impartial in the presentation and assessment of the evidence? Is there a reliable body of knowledge or experience to underpin the expert’s skilled evidence?

Drafting Strategy (Preferences) ESSENTIAL INFORMATION DETAILED INFORMATION LINEAR (Logical) NON-LINEAR (Forensic)

Basic Report Structure CONCLUSIONS Reasoning OPINION FACT Issues

Modular Report Structure SUMMARY OF CONCLUSIONS CONCLUSIONS OPINION FACT ISSUES

Mapping the Evidence Section Main Headings Sub Headings Content Introduction Author Instructions Appointment Claim Structure 7 Sections Background Company A Description

Agenda Setting My Assessment of Future Maintainable Earnings In this section, I set out my assessment of the future maintainable earnings for XYZ Ltd. The assessment of future maintainable earnings is an essential element of valuing a company as a ‘going concern’ and provides the anticipated level of annual income (after tax) expected from its operating activities. […]

Writing Opinion

Establish and Apply the Legal Test Standards of Professional Conduct The Institute of Chartered Accountants in England and Wales (“ICAEW”) ‘Professional Code of Ethics’ (2011) (“the Code”) sets out the following fundamental principles for professional competence and due care that guide the conduct of professional accountants: […]

Establish and Apply the Legal Test (2) In the Code, the standard of practice reasonably to be expected of professional accountants is founded on the principles of competence and diligence. “100.5 (c) to maintain professional knowledge and skill at the level required to ensure that a client or employer receives competent professional services based on current developments in practice, legislation and techniques and act diligently and in accordance with applicable technical and professional standards.”

Establish and Apply the Legal Test (3) The obligations imposed on professional accountants by these principles are delineated in the Code as follows: “130.2 Competent professional service requires the exercise of sound judgment in applying professional knowledge and skill in the performance of such service. […] 130.4 Diligence encompasses the responsibility to act in accordance with the requirements of an assignment, carefully, thoroughly and on a timely basis.” I will apply these principles and obligations in assessing the standard of practice achieved by A.N. Other Accountants in this matter.

Expressing Opinions (1) Detailed Approach: Identify the issue Relevant facts Reasoning process Conclusion (applying the legal test)

Expressing Opinions (2) Explanatory Approach: Identify the issue Statement of Opinion (applying the legal test) Give reasons to support the opinion Explain any areas of complexity

Guntrip v Cheney Coaches Ltd Claimant Expert’s Orthopaedic Opinion: “It is difficult to correlate being back at work as being the cause of his knee problem, as this may have occurred anyway at this stage. However, his return to work did seem to precipitate the start of his ongoing symptoms.”

Guntrip v Cheney Coaches Ltd Claimant Expert’s Orthopaedic Opinion: “It is difficult to correlate being back at work as being the cause of his knee problem, as this may have occurred anyway at this stage. However, his return to work did seem to precipitate the start of his ongoing symptoms.”