The Commercial Court’s ‘Long Trials’ Working Party was set up in January last year, in response to press and other comment on the outcome of the BCCI and Equitable Life cases. Last December, the working party published its report and recommendations, the product of a number of meetings. The proposals are currently being put into practice in the Commercial Court for a trial period which will run, at least initially, to the end of July this year. Expert witnesses will read Section G of the report, on expert evidence, with particular interest.

In the case of expert evidence, the working party found that a failure to define with precision the relevant disciplines and issues before the experts put pen to paper can result in reports that are over-elaborate and too long. The working party recommended that:

  • - the court should settle a list of issues at the first case management conference, to be used to regulate subsequent disclosure, witness statements and expert reports;
  • - expert reports should normally be exchanged sequentially;
  • - the court should consider limiting the length of expert reports; and
  • - no change should be made to the current position in relation to court-appointed experts.
  • Experts in different disciplines are employed in a number of ways in commercial dispute resolution, and the sort of questions they are required to answer come up with varying frequency. Experts in accountancy, finance, business valuation or economics are often involved, often enough that specialist practices exist to provide advice in such contexts. Accountants, for example, are frequently asked to assist in the quantification of damages.
  • In the words of the working party, a ‘heavy and complex’ case is like the proverbial elephant, and the working party did not try to define it. From my perspective as an accountant, if the case involves:
  • - cupboards-full (or, these days, servers-full) of documents;
  • - a large number of alternative claims or defences that each need to be considered separately; and
  • - reliance on, and interdependency between, the opinions of a number of experts in other disciplines, then it is fair to call it a complex case.