Question
I was previously instructed on a case through an organisation with whom I no longer have a contractual relationship. I do not wish to undertake any further work through that organisation and would prefer any future instructions relating to the matter to come directly from the instructing solicitor.
My concern relates to the appropriate handling of any future work arising from the existing instruction, including matters such as CPR Part 35 questions, requests for clarification, joint statements, conferences with counsel, or any other work connected with the proceedings.
As an independent expert, my understanding is that my overriding duty is to the Court. However, I would be grateful for the Institute's guidance on the following:
1. Whether it is appropriate to decline further instructions through the intermediary organisation where no contractual relationship now exists.
2. Whether it is appropriate to request that any further instructions be made directly by the instructing solicitor.
3. Whether there are any professional or ethical considerations that I should take into account in relation to ongoing proceedings where my original appointment arose through the intermediary.
4. Whether there is any guidance or best practice regarding the transfer of communications and future instructions from the intermediary to the instructing solicitor.
I wish to ensure that I act in accordance with my duties as an expert witness and maintain my independence while avoiding any disruption to the litigation process.
Answer
1. Whether it's appropriate to decline further instructions through the intermediary where no contractual relationship now exists.
Where there is no contract, there is no obligation. If you are unaware about the terms of the intermediary's own contract with the instructing solicitor, the suggestion is that you can act on your own contractual position now and let the intermediary or solicitor raise anything further if it exists.
2. Whether it's appropriate to request future instructions come directly from the solicitor.
The Board doesn't see why not, assuming no contractual obligation exists. But it's the solicitor's call whether they instruct you directly, not something that you can require.
3. Whether there are professional or ethical considerations for ongoing proceedings arising from the original intermediary appointment.
The Board thinks the real issue here isn't ethical, it's continuity. Part 35 questions and clarification requests are deadline-bound by rule. If they're still being sent to the intermediary during a disengagement, there's a genuine risk of a missed deadline landing on you through no fault of their own.
4. Best practice on transferring communications and future instructions.
The Board’s advice is to give written notice to both the intermediary and the solicitor, confirming the effective date, requesting all future case correspondence come direct, and asking the intermediary to confirm there's nothing currently outstanding or in transit. This is what I've done in the past and it has worked without a problem. It protects against the Q3 risk regardless of how the underlying contractual position resolves.
Bottom line in the opinion of the Board: assuming no contract remains in place, you are free to refuse the intermediary and ask for direct instruction. But whether that request succeeds depends on the solicitor's own arrangement with the intermediary, which is outside of your control and outside our visibility too.