IAN - The Actuary as an Expert Witness Version 2.0 Issued on 15/02/2013

IAN - The Actuary as an Expert Witness Information and Assistance Notes (IANs) are intended to provide helpful material on particular matters in an accessible form for all members including those who may not have any specialised knowledge in the relevant area. It is not mandatory for Members to have regard to an IAN.

MEMBERS MUST AT ALL TIMES COMPLY WITH THE REQUIREMENTS OF THE ACTUARIES’ CODE, ACTUARIAL PROFESSION STANDARDS, AND TECHNICAL ACTUARIAL STANDARDS PRODUCED BY THE FINANCIAL REPORTING COUNCIL, WHEN ADDRESSING ISSUES WHICH MAY ARISE. Author: Professional Regulation Executive Committee

Purpose: This IAN is intended to assist actuaries in the United Kingdom whenever they are instructed as an expert in proceedings before civil courts or tribunals. It is also intended to be helpful to actuaries preparing reports in other jurisdictions and when they have been instructed in an advisory expert, rather than expert witness, capacity.

Target Audience: Actuaries who are considering accepting an appointment to act as an expert in such proceedings.

Date of Issue: 15 February 2013

To be reviewed: In the context of the development of a new Actuarial Profession Standard and in any event, no later than December 2013

1. Introduction

1.1. This IAN is intended to provide assistance to an actuary who is instructed as an expert witness in proceedings before civil courts, other tribunals or in mediations in England and Wales. As such, reference is made throughout to the Civil Procedure Rules (CPR) which set out what is required of an expert by those courts and tribunals. The CPR do not apply to courts in Scotland or Northern Ireland, nor does it apply in criminal proceedings.

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1.2. However, the general principles are likely to apply to an actuary acting as an expert

before any other United Kingdom tribunal or court and actuaries giving evidence in courts in Scotland and Northern Ireland should interpret this IAN accordingly. Actuaries should always ensure that they are familiar with the specific rules and guidance applicable to the circumstances of their instruction.

1.3. This note does not seek to replicate the relevant CPR and an actuary instructed as an expert witness in civil proceedings should be familiar with the relevant rules. Attention is drawn to the fact that some courts such as the Commercial Court have differing CPR procedures. Experts and those instructing them should ensure appropriate compliance.1

Links to the relevant rules can be found in section 9, “Rules and Legislation”.

1.4. Appendix A sets out particular points to note for an actuary who is instructed as an expert in proceedings before the civil courts in Scotland. Specialist tribunals are likely to have their own specific procedural provisions and requirements and actuaries should ensure that they are informed of the specific requirements by those instructing them.

1.5. Civil proceedings in which an actuary is instructed as an expert can lead to a relatively high profile being given to an actuary's opinion. It is, therefore, important that expert opinions provided by actuaries are thoroughly prepared and carefully explained so that public confidence is maintained in the competence of the Institute and Faculty of Actuaries to evaluate future contingent events, even in the event of diverging opinions between actuarial experts.

1.6. The focus of this IAN is on the preparation and delivery of sound expert evidence by actuaries. It is not intended to constrain genuinely held differences of actuarial opinion or to unreasonably restrain the selection of actuarial assumptions or methods.

2. Role of the expert witness

2.1. While an actuary may be instructed to act as an expert by lawyers or a particular client, an actuary must be aware that the role of an expert witness is to provide assistance to the court or tribunal on specialist or technical matters within their expertise.

2.2. This duty to act as an expert overrides an obligation to the client or person who is

instructing or paying the actuary. This means that the actuary must act independently and must not be influenced or swayed by the person who is instructing or paying them. This duty also means that the actuary must give evidence honestly and in good faith and must not deliberately mislead the court.2

2.3. A good test of “independence” which actuaries might like to consider is: would I express the same opinion if I were given the same instructions by the opposing party?”3

1 See Part 49 of the CPR.

2 Cresswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68, 81-82.

3 See paragraph 3.2.3 of the “Guidance for the instruction of experts to give evidence in Civil claims.”

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3. Instructions to Act

Conflict of Interest

3.1. According to principle 3 of the Actuaries’ Code, before accepting any instruction, an actuary must consider whether a conflict of interest arises. Actuaries must also be prepared to take appropriate steps to reconcile conflicts of interest if one arises during the course of their engagement. In the event that a conflict of interest cannot be reconciled, actuaries must consider whether it is appropriate to continue to act in the case. Actuaries should have regard to the Institute and Faculty of Actuaries’ guidance on conflicts of interest when considering this matter.

3.2. A particular issue which could give rise to a conflict of interest is where an actuary is asked to act as an expert witness for a party to litigation against a current or previous client of a colleague in the same firm. For example, an actuary might be asked to quantify loss of pension rights in the context of an employee's wrongful dismissal claim, where a partner or colleague is advising, or has previously advised, the directors of the employing company.

Appropriate experience

3.3 According to principle 2.2 of the Actuaries’ Code, actuaries will not act unless they have an appropriate level of relevant knowledge and skill. This means that any actuary approached to act as an expert must ensure that they are competent to do the work and that they have the appropriate relevant experience to both provide and speak to the report.

Nature of Instruction

3.4 When accepting instructions to act as an expert witness, an actuary should ensure that they are clear as to the scope and extent of those instructions. Their report must state the substance of all material instructions on the basis of which the report was written. This includes both written and oral instructions. An actuary's instructions to act as an expert will not attract legal privilege4

. However, the court will not order disclosure of specific documents unless the statement of instructions in the expert report is considered inaccurate or incomplete.

3.5 An actuary's instructions to act as an expert should clearly identify the issues on which the actuary's opinion, as an expert, is sought. An actuary should restrict their opinion to the areas in which their opinion is sought. Nevertheless, the actuary should be careful not to “assume the role of an advocate.”5

3.6 If an actuary:

3.6.1 is being instructed in an area which, in their opinion, falls outside the scope of their expertise; or

4 Rule 2.2 of the CPR defines “privilege” the right of a party to refuse to disclose a document or to refuse to answer

questions on the ground of some special interest recognised by law. 5 2.2 of Practice Direction 35 of the CPR.

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3.6.2 is unable to reach a definite opinion, for example, because they do not have sufficient information upon which to form their opinion,

then this should be pointed out to their instructing solicitors immediately.

3.7 Furthermore, if an actuary believes that they will need to rely on professionals in other disciplines, they should request appropriate assistance from those professionals having discussed the matter with their instructing solicitors e.g. if they are acting in a case involving unusual taxation impacts on calculations, an appropriately experienced accountant or tax lawyer may need to be engaged.

Instruction of a Single Joint Expert

3.8 The CPR contains provision for the court to direct that a single joint expert be instructed. In such a case, each party to the litigation may give instructions to the expert. The party sending instructions to the expert must also send a copy to the other relevant parties.

3.9 The instruction of joint experts is encouraged by the court and such appointments have

become the norm in cases allocated to the small claims6 and fast track7

courts. For more complex cases, it is more likely that each party will instruct their own expert.

3.10 Where a joint expert has been instructed, the parties will normally attempt to agree a single, joint set of instructions. The appointment of a single joint expert does not prevent parties from instructing their own experts to provide advice in their role as an expert advisor.

3.11 Where an actuary is instructed as a single joint expert, they should keep all of the instructing parties informed of any material steps that they are taking and should copy all correspondence to each party instructing them.

3.12 All expert witnesses owe an overriding duty to the court, over and above their duty to the parties instructing them. A single joint expert should not attend any meeting or conference call which is not attended by all parties, unless the other parties have agreed in writing or the court has directed that such a meeting may take place.

3.13 In the event that an actuary is instructed as a single joint expert in England and Wales, particular attention should be paid to Part 17 of the Protocol for the Instruction of Experts to give Evidence in Civil Claims”8 (Protocol) or section 4 of the Guidance for the instruction of experts to give evidence in Civil claims (Guidance).9

6 See Part 27 of the CPR.

The Protocol was published by the Civil Justice Council and is due to be replaced by the Guidance in due course.

7 See Part 28 of the CPR. 8 http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-

rules/civil/contents/form_section_images/practice_directions/pd35_pdf_eps/pd35_prot.pdf.

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Remuneration

3.14 An actuary's overriding duty is to the court and not to the person instructing or paying them and actuaries must comply with paragraph 2.6 and with principle 3, “Impartiality” of the Actuaries’ Code in relation to remuneration arrangements. Additionally, the Court may require experts to provide an estimate of their charges and expert actuaries should be aware that their fees and expenses may be limited by the Court.10

3.15 Occasionally, actuaries may be asked whether they will be prepared to act under a conditional fee arrangement (CFA). CFAs allow parties to receive an increased success fee if their client is successful, but this is not directly linked to the amount awarded to the claimant. This is often referred to as a “no win, no fee” arrangement. A CFA is the only lawful form of contingency fee arrangement currently allowed in England and Wales for litigious work. The position is different for non-contentious work. However, CFAs are not appropriate in the instruction of experts as they are perceived as undermining an expert's objectivity.11

4. Preparing An Expert Report

Civil Procedure Rules (CPR)

4.1. Part of the reason for the introduction of the CPR was an attempt to contain the costs of civil litigation. Expert reports were seen as one of the major generators of costs, partly because experts can sometimes be perceived to act in an inappropriately partisan manner, rather than in a manner aimed at impartially assisting the court. The CPR therefore stresses the overriding duty of an expert to the court and not to the instructing party.

4.2. Any actuary who is instructed as an expert witness in civil litigation in England and Wales must make themselves familiar with the provisions of the CPR. Any failure to comply with the provisions of the CPR may, in certain circumstances, lead to an expert's evidence not being admitted in Court. This may have significant consequences for the case. An expert who acts inappropriately in the presentation of their evidence (for example, by opining upon matters outside their expertise) might find themselves subject to disciplinary action and/or sanction by the court which may include costs orders being made directly against expert witnesses.12

4.3. If an actuary has any doubt as to how the CPR relates to an instruction they have received to act as an expert witness, they should seek to clarify the position with their instructing solicitor.

9 Note that the Civil Justice Council has recently published a 2011 edition of this protocol entitled “Guidance for the

Instruction of Experts to Give Evidence in Civil Claims” which is expected to be annexed to Practice Direction 35 in due course.

10 See paragraphs 2.2.2 and 2.2.11 of the “Guidance for the instruction of experts to give evidence in Civil claims.” 11 See paragraphs 7.6 and 7.7 of the “Protocol for the Instruction of Experts to give evidence in civil claims” and

paragraph 4.3 of the Guidance for the instruction of experts to give evidence in Civil claims 12 Phillips v Symes [2004] EWHC 2330 (Ch).

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4.4. In addition to Part 35 of the CPR, a Practice Direction has been published to accompany that Part of the CPR. This Practice Direction should also be considered when acting as an expert witness. Finally, the Protocol and Guidance as referred to at paragraph 3.13 above should be read in conjunction with this IAN.

4.5. There are certain requirements, including certain specific requirements set out in the CPR13

, which an expert must comply with when compiling their report. These include, but are not limited to, the report

• being addressed to the court and not the instructing party;

• containing a statement that the expert understands his/her duty to the Court and is aware of the requirements of the CPR, Practice Direction and Protocol/Guidance;

• containing a statement of truth. The statement of truth must be in the following form: "I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer".

• containing any statement of qualification(s) if an expert is unable to give their own opinion without qualifying it;

• containing details of the expert's professional qualifications;

• containing details of any literature and/or material that the expert has relied upon in compiling their report;

• setting out the substance of all facts and instructions, both written and oral, given to the expert which are material to the opinions they have reached in their report;

• making clear which of the facts stated in the report are within the expert's own knowledge;

• stating who carried out any examination, measurement, test or experiment which the expert has used for the report, giving the qualifications of that person and stating whether or not the examination, test etc has been carried out under the expert’s supervision;

• where there is a range of opinion on matters considered in the report, summarising that range of opinion and providing reasons for the conclusion the expert has reached; and

• containing a summary of the conclusions reached.

4.6. The CPR continues to evolve and develop and it is possible that additional documents will be published from time to time. An expert witness actuary should confirm with their instructing solicitor what the relevant and up-to-date requirements are.

13 See Part 35 of the CPR: http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part35.htm#rule35_3; as well

as Practice Direction 35: http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part35.htm

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Data and Actuarial Assumptions

4.7. An expert witness actuary: 4.7.1. must identify the data necessary to undertake an actuarial analysis. Whilst an

actuary would not normally be personally responsible for verifying the data, where practical, taking into account the costs involved, they should be satisfied of its validity and reasonableness; and

4.7.2. should identify any limitations or shortcomings in the data used that might have an effect or have implications for the conclusions set out in their report.

4.8. An expert witness actuary may be asked questions by his/her instructing solicitors, the

opposing party14

or the court. These questions may ask the actuary to show what the outcome of a calculation would have been based on an alternative method or on different assumptions. It is acceptable for the actuary to present these calculations, even where the actuary does not accept the assumptions upon which they are proceeding. However the actuary must make it clear, so as to avoid any misunderstanding by the Court or any of the parties, that the calculations by the actuary are based upon assumptions which the actuary does not believe to be appropriate.

Forming an Opinion

4.9. An actuary's opinion should be restricted to matters which lie within the actuary's expertise.15

An actuary could be subject to disciplinary, civil or criminal proceedings arising out of their conduct as an expert if, for example, they gave expert evidence to the court outside their area of expertise. Disciplinary action might be taken in these circumstances having regard to the general definition of “misconduct” (Rule 1.6 of the Institute and Faculty of Actuaries’ Disciplinary Scheme), and paragraph 2.2 of the Actuaries’ Code.

4.10. In England & Wales, actuaries should be aware that expert witnesses are no longer immune from disciplinary proceedings arising from his or her conduct in his or her role as an expert witness.16 Furthermore, the longstanding immunity from suit of expert witnesses in civil cases has now also been abolished.17 Finally, actuaries should also be aware that the immunity of expert witnesses as a defence to tortious claims has also been abolished so that experts may argue that their immunity be retained against an opposing party but not to their instructing client.18

4.11. In Scotland, the position is that experts are still immune from suit However, given recent Court decisions in the Supreme Court the position on this may change. There is no immunity from disciplinary proceedings which is reflective of the position in England and Wales. Actuaries should ensure that they adhere to the provisions of the

14 The CPR make provision for a party putting written questions to another party's expert witness about that expert's

report. These require to be answered by an expert, bearing in mind their primary duty to the Court (CPR Part 35.6(1)).

15 CPR Part 35.3(1) and see also paragraph 3.7 of this IAN for additional comments about expertise. 16 Meadow v General Medical Council [2007] QB 462, 17 Jones v Kaney [2011] UKSC 13 18 Baxendale-Walker v Middleton [2011] EWHC 998 (QB)

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Actuaries’ Code and other professional guidance; doing so will reduce the likelihood of any civil or legal action brought as a result of their instruction as an expert witness.19

4.12. An actuary should resist any pressure from a client, their instructing solicitor or their counsel to:

4.12.1. give evidence or form an opinion that is contrary to the actuary's true view; or

4.12.2. express an opinion on a matter which is outside the actuary's expertise.

4.13. If an expert witness actuary feels unable to support aspects of the case which they have been asked to advise on being advanced by the client, they should let their instructing solicitor know at the earliest opportunity. As such, it is important for an actuary to identify clearly the scope of his/her instruction at the outset, and to make clear in their report any limitations on their report’s scope.

4.14. Certain investigations may be necessary in the course of compiling a report and

forming an opinion which will incur additional costs. In order to ensure compliance with one of the overriding objectives of the CPR that cases are to be dealt with in a proportionate way, an actuary must ensure that any costs are proportionate to the nature of the case. The court will endeavour to ensure that the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party are all taken into account. Against that background, whilst some investigations may be desirable when preparing a report, it may be that they are unjustifiable on cost grounds. An expert witness actuary should be mindful of these constraints and should discuss the implications of carrying out, or omitting to carry out, certain investigations with their instructing solicitor.

4.15. In compiling the report, an actuary must include the methodology used for any scientific

or technical tests that have been carried out. The expert report should also include details of the literature and any materials they have relied on in making the report. An actuary should give consideration, in consultation with their instructing solicitor, as to whether it would be beneficial and appropriate for the report to give sufficient information to enable another actuary to be able to reproduce the calculations to an appropriate degree of accuracy.

4.16. It will often assist the court if an actuary indicates in their report that an actuarial

valuation necessarily has a degree of uncertainty associated with it and that the result of the valuation may be sensitive to certain of the assumptions made. The actuary should indicate which of the assumptions in that statement applies and to identify any assumptions which are particularly significant. In the event that the actuary provides evidence in court, they should be prepared to explain the concept of uncertainty and sensitivity, both verbally and numerically, to convey to the court the actuary's own expectation of future outcomes. Errors

19 See Lord Justice Hope’s decision in Jones v Kaney [2011] UKSC 13, Watson v McEwan [1905] AC 480, B v

Burns 1994 SLT 250 and Karling v Purdue 2004 SLT 1067.

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4.17. If, having given expert evidence, or prepared an expert report, an actuary becomes aware of a material error in their report or evidence, the actuary must inform their instructing solicitor of the error and the reasons for it without delay.

4.18. If an actuary becomes aware of any error in their evidence whilst in the course of giving

evidence to the court, the court's attention should be immediately drawn to that error. Exchange of reports

4.19. Once the actuary has submitted his/her report to their instructing solicitor, that solicitor will advise the actuary whether and when that report will be provided to the other party. Written questions to experts

4.20. After the expert reports have been exchanged, it is possible that one party may write to the other party with questions about their actuary’s report.20

The purpose of these questions is to clarify opinions and issues following the exchange of reports. An actuary is obliged to answer questions which are properly put. If the actuary is unsure if a question has been properly put, or whether they have been asked out of time, they should seek clarification from their instructing solicitors.

4.21. Failure to answer questions which have been properly put may result in sanctions being imposed. The answers will form part of the actuary’s report and evidence.

5. Alternative Dispute Resolution- Mediation

5.1. Mediation is increasingly used as a form of alternative dispute resolution and is encouraged by the court. Mediation is a process by which the parties seek to resolve their dispute outside the constraints of a formal court process. An expert witness actuary may be asked to attend mediation.

5.2. In the event that an actuary is involved in a case which is referred to mediation, their

instructing solicitor will be able to clarify what role, if any, the appointed expert(s) will be expected to play in that mediation e.g. perhaps they may form part of a client team as an expert advisor. No fixed formal procedural rules govern the conduct of mediation and therefore the role of any expert(s) will vary from case to case.21

As in court proceedings, however, the expert will be expected to form an objective opinion on the matters at issue, adhering to the principles set out above.

6. Meeting of Experts

6.1. Experts who have been instructed by the respective parties may be asked to meet before the trial, usually without their instructing solicitors being present. Instructions of this nature may arise either following a direction from the court or because the parties have agreed. These meetings are not arranged so that the experts attempt to reconcile their clients' competing accounts of events or to decide between them, or to resolve the substantive issues in dispute. This task will be undertaken by the court. Meetings may

20 See CPR 35.6. 21 See section 7 below for further detail.

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not necessarily be face-to-face and may be undertaken via a video link or over the phone.

6.2. The purpose of such a meeting is to allow the experts to

6.2.1. discuss technical questions that arise in the case and which are within their expertise;

6.2.2. identify the extent of the agreement and the disagreement between them; and 6.2.3. identify any action which could be taken to try and resolve any outstanding

points of disagreement.

6.3. A meeting of experts may either be held on a "without prejudice basis" or on an "open" basis. A meeting that is held on a "without prejudice basis" means that only limited, if any, reference can be made in Court to the discussions during the meeting. The discussions during an "open" meeting can, however, be referred to during any subsequent court hearing. When receiving an instruction to attend a meeting of experts, an actuary should seek clarification from their instructing solicitors as to the basis on which the meeting will be held. The status of the meeting should then be specifically confirmed at its commencement.

Amendment of reports

6.4. Actuaries may find that they need to amend their reports following meeting with the other party’s expert or where further documentation is provided to them.

6.5. Where an actuary:

6.5.1. changes his/her opinion following a meeting of experts, a signed and dated addendum usually suffices; or

6.5.2. significantly changes their opinion, they should amend their report to reflect those changes which should include reasons for the amendments and let their instructing solicitors know as soon as possible about their change of opinion.

7. Difference between experts formally instructed to report and those only asked to

advise

7.1. The Guidance makes it clear that Part 35 of the CPR and the Guidance only applies where an actuary is instructed to appear as an expert witness in court proceedings.

7.2. Advice which actuaries give which is not to be used in litigation is confidential but the

Guidance does not apply. Likewise, where, after the proceedings have commenced, an actuary is instructed only to advise, and not to give or prepare evidence for use in the proceedings, the Guidance does not apply. In such situations, the actuary is likely to be viewed as an “expert advisor”, not an “expert witness.” However, the Institute and Faculty of Actuaries regards it as good practice for actuaries to comply with the provisions of Part 35 and the Guidance even if the actuary is acting in their capacity as an expert advisor.

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7.3. However, the Guidance and Part 35 of the CPR do apply if an actuary who was originally instructed to act as an expert advisor is later instructed to act as an expert witness in civil proceedings.22

7.4. Furthermore, if an expert advisor has been instructed to act as an expert witness, they will need to give careful consideration as to whether they can accept a role as an expert witness due to the fact that their original instructions and/or work has, for any reason, placed them in conflict with their duties as an expert.23

8. Appearance in Court

Before the hearing

8.1. The CPR envisage that it will not always be necessary for an expert to attend court to give oral evidence. If a case is being heard on the fast-track procedure, an expert will only be requested to attend if it is in the interests of justice that they do so. Where an expert witness is not required to attend court, their written report is taken as their evidence.

8.2. An expert witness actuary is, however, obliged to attend court if they are called upon to do so. It is therefore important that the instructing solicitors are made aware, as early as is reasonably practicable, of any dates when the actuary would be unable to attend court. The court will expect that the actuary will be as flexible as reasonably possible in making themselves available to appear in court.

8.3. Because an actuary may be required to provide oral evidence, when the actuary is considering accepting instructions to act in the matter, they should also consider, whether, under the Actuaries’ Code, paragraph 2.2, they have the appropriate level of skill required to provide oral evidence in court.

At the hearing

8.4. An actuary must always remember that they are instructed to assist the court by providing their relevant expert opinion. A court is most likely to be persuaded by an expert who gives evidence clearly, logically and in measured terms.

8.5. As such, actuaries who are providing oral evidence should:

8.5.1. listen to questions carefully; 8.5.2. ensure that they understand the question being put to them; 8.5.3. only answer the question being put to them; 8.5.4. if they do not understand the question, cannot remember or do not know the

answer, simply explain that that is the position they find themselves in; 8.5.5. remember that although a barrister or solicitor will be asking the questions,

actuaries should address their response to the judge; and 8.5.6. speak slowly and clearly and keep calm.

22 See paragraph 3.1 of the “Guidance for the Instruction of Experts to Give Evidence in Civil Claims” 23 See paragraph 3.3.1.4 of the “Guidance for the Instruction of Experts to Give Evidence in Civil Claims”

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8.6. An actuary’s expert report is usually regarded as that actuary’s 'evidence-in-chief'. This means that it would not be necessary for the barrister representing the party instructing the actuary to take the actuary through their evidence in detail.

8.7. Once the actuary’s evidence has been led 'in chief', the other parties will have the opportunity to cross-examine the actuary. If the actuary has been jointly instructed by all parties, all parties have an opportunity to cross-examine the actuary.

8.8. Under cross-examination, an actuary must respond truthfully and on the basis of their professional opinion, to questions posed during cross-examination.

8.9. During the course of giving evidence, an actuary should not be afraid to resist any attempt to characterise an actuarial opinion as nothing more than speculation. An actuary should be prepared to defend the concept of uncertainty against an attempt to use it to discredit the validity of actuarial work and testimony.

8.10. An actuary should be alert, whilst being cross-examined, to questions from counsel which seek to manoeuvre an actuary into adopting an extreme position in respect of any particular matter. Adopting such a stance may then undermine the value of the rest of the evidence. An actuary should also be alert to any attempt to portray their field or background as narrow, in an attempt to portray the actuary as inexperienced in a particular field.

8.11. Whilst giving evidence, the foremost duty of an expert witness actuary remains to assist the court in matters that lie within their expertise.

8.12. Whilst giving evidence, an actuary may be asked to comment on differences between their evidence and earlier evidence that has been heard. Any such comment by an actuary on such issues should be objective and professional. Differences of opinion between actuarial experts can arise as a result of the opinions being based on a different factual premise or on different actuarial assumptions. When this is explained to the court, it may be that the area of disagreement can be significantly narrowed.

8.13. In other cases, however, differences of opinion between actuarial experts may arise because one actuary is using a different type of methodology or approach to the other. This is most likely to occur in cases where there have been allegations of negligence made by a claimant, which are supported by an actuarial expert on his side and refuted by another expert instructed by the defendant. An actuary may be unable to assist the court further, beyond explaining the basis for their own opinion and highlighting the existence of the difference of professional opinion.

8.14. Finally, when an actuary is giving evidence, whether it be during examination-in-chief or during cross- or re-examination, the actuary is deemed to be “in purdah”. This means that he or she may not discuss that evidence or the case itself with anyone else. This may occur e.g. over a lunch break or overnight if the actuary is still giving evidence.

9. Rules and legislation

9.1. Actuaries should refer to:

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9.1.1. Part 35 of the CPR24

9.1.2. Practice Direction 35, 25

9.1.3. the Protocol for the Instruction of Experts to give Evidence in Civil Claims; and

26 and, when it comes into force later in 2012, the “Guidance for the Instruction of Experts to Give Evidence in Civil Claims27

” which is expected to be annexed to Practice Direction 35 in due course.

10. Further guidance

10.1. The Institute and Faculty of Actuaries’ Professional Support Service may be able to help with more specific issues.

10.2. Additionally, the following organisations may be able to provide you with additional

guidance or further information:

The Academy of Experts http://www.academy-experts.org The Civil Justice Council http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc The Expert Witness Institute http://www.ewi.org.uk The Society of Expert Witnesses http://www.sew.org.uk The Law Society of England & Wales http://www.lawsociety.org.uk The Law Society of Scotland www.expertwitnessscotland.info/codepract.htm

24 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35 25 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part35 26 http://www.justice.gov.uk/courts/procedure-

rules/civil/contents/form_section_images/practice_directions/pd35_pdf_eps/pd35_prot.pdf 27 http://www.judiciary.gov.uk/Resources/JCO/Documents/CJC/Publications/Pre-

action%20protocols/CJC%20Guidance%20for%20the%20Instruction%20of%20Experts.pdf

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APPENDIX A 1.1 Expert evidence and the Scottish Courts

An actuary instructed as an expert in civil proceedings before the Scottish Courts should be alert to the fact that the CPR do not apply in Scotland. The general advice provided in this IAN (in relation for example to conflicts of interest and the importance of objectivity and the clarification of relevant assumptions) remain applicable in Scotland. However, there are a number of relevant differences which relate primarily to the form in which any written report is presented, and the presentation of evidence before the court. An actuary instructed to act as an expert before the Scottish Courts should seek specific guidance from their instructing Scottish solicitor. Nevertheless, actuaries may find the following points useful: 1.1.1 An expert report is addressed to their instructing solicitor not, as in England

and Wales, addressed to the Court. It is a matter for the instructing solicitor to decide whether they intend to rely on the expert's evidence before the court and, if so, whether they wish to produce the written report to the court. The expert actuary should however remember their duty to act objectively and professionally in the presentation of their expert opinion.

1.1.2 The instruction of a joint expert is relatively rare in Scotland but it is not unusual for a meeting to be arranged between the parties' respective experts with a view to seeking to narrow the scope of the points of dispute between them.

1.1.3 The Scottish courts attach primary importance to oral evidence. Therefore,

experts would normally be expected to appear in court, and to provide their 'evidence in chief' orally to the Court, before being subject to cross-examination by the other party's solicitor or advocate (barrister).

1.1.4 An actuary instructed as an expert in civil proceedings before the Scottish

courts should confirm with their instructing solicitor the nature and extent of any differences in the style of report required for this purpose. A number of the specific CPR requirements in relation to the formal presentation of an expert report (for example, the 'statement of truth') are not formal requirements in Scotland, although the principles underlying them are likely to be equally applicable.

1.1.5 An actuary instructed as an expert in civil proceedings before the Scottish

courts should also be aware of the possibility of having to give evidence before a jury.

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