The costs of instructing a computer expert in civil litigation can often easily exceed the sum in dispute, unless the exercise is very carefully disciplined. The problem is not so much the expert’s hourly rate but the complexity of computer systems, software and data. For the expert, the difficulty is that any conclusions given have to be supported not by the ordinary considerations of offering an opinion or practical remedy but by the prospect of hostile cross-examination in which his expertise is put in doubt. CPR1 requires parties to recognise the overriding objective of enabling the court to deal with cases justly, and in particular towards : 1.1(2)(b) saving expense; and (c) dealing with the case in ways which are proportionate – ( i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; For these reasons the early engagement of an expert to assist in defining what can be readily agreed and limiting what is actually in dispute is an essential route to limiting costs. A preliminary engagement may also be useful in identifying what specific knowledge, experience and skills are in fact likely to be needed; it may be that an expert initially appointed suggests another one for specific tasks. Electronic Disclosure under CPR 31 also presents significant problems. A further strategy to explore is the scope for using a Single Joint Expert under CPR 35.7 Disputes in Computer Contracts used to be the main feature of the practices of some computer experts. A typical situation is where the contract for the supply and/or maintenance of a system, or for the supply of out-sourced services was insufficiently detailed or thought-out and what is needed for resolution is a view on the reasonable expectations of the parties. Sometimes the dispute is that a product has turned out to be buggy or has failed, or that expected service levels have not been met. It is alas usually not cost-effective to employ a computer expert in disputes involving single personal computers or very small business systems Cases where evidence in digital form is significant But with the ubiquity of computers in organisations and in private life, there are almost no limits to the situations in which computer-derived evidence may produce much needed direct evidence, or in the alternative, evidence of intent. Cases can include: disputed commercial transactions, asset recovery, defamation, family law situations, misuse of intellectual property/counterfeiting, breach of confidence/theft of proprietary information, and employment disputes. The computer expert can give advice, carry out investigatory procedures and give evidence on substantive transaction records, emails, the contents of personal computers, and trace the personal computer-related activities of individuals. The Internet has opened up many new areas- establishing what has been published on the world wide web, or in a blog, or on a social network site - and capturing it reliably. Activities on e-commerce sites can be reviewed and decoded. Sometimes the work can extend into an investigation -who was responsible for specific activities on a computer, or on a remote Internet site - and how to obtain reliable evidence of that. Intellectual Property disputes A more specialised type of instruction is where the IP is itself computer-related - software code, web-designs, images, audio and video files. Here the task may be to demonstrate levels of similarity, or to prove authorship. Civil Search Orders Many civil search orders inevitably include references to documents and other materials in digital form. All too often these Orders are less effective than they might be because those requesting them have failed to understand what might be available and what problems might be involved in execution Disclosure. Standard Disclosure under CPR 31 now includes an Electronic Disclosure Questionnaire under PD31B. Assistance in responding and delivering a practical action plan often requires expert assistance . There are also situations where it is helpful to have clear explanations about computer systems and their relationship to the organisations and individuals that use them are needed, or about the operation of particular technologies. For further information, please click the appropriate box in the bar below:
A list of recent and important civil instructions can be found here .