Letter of Instruction

Letter of Instruction

The contents of a Letter of Instruction will vary depending on the nature of the case and the issues on which expert evidence is required. The guidance below relates specifically to claims arising from incidents on or around golf courses and driving ranges.

A Letter of Instruction should be concise, focused and tailored to the particular case. It should identify the issues on which expert evidence is required, the questions the expert is being asked to address and the information necessary for the expert to provide an opinion.

A clear identification of the issues and questions is particularly important. The expert should understand what matters they are being asked to consider and the limits of the opinion sought.

What Should Be Included in a Letter of Instruction to a Golf Course Expert?

A Letter of Instruction to a golf course expert should clearly identify the issues on which expert evidence is required, the questions the expert is being asked to address, the relevant factual and legal context, the documents provided, applicable CPR Part 35 requirements, deadlines, confidentiality requirements and any arrangements for further information, site inspections or oral evidence.

The quality and clarity of the Letter of Instruction can have a significant effect on the scope, cost and usefulness of the expert's work. A well-drafted instruction helps ensure that the expert understands precisely what is required while maintaining the independence and objectivity required of an expert witness.

A Letter of Instruction should normally address the following matters.

1. A brief and neutral summary of the essential facts

The instruction should provide sufficient factual background to enable the expert to understand the circumstances giving rise to the claim.

The summary should be neutral and should distinguish, where appropriate, between established facts, allegations and matters that remain in dispute.

2. The expert's area of expertise

The solicitor should identify the particular expertise on which the expert's opinion is sought.

Any matters which may fall outside the expert's expertise should also be identified. An expert should not be asked to provide opinions on matters outside their knowledge, experience or professional competence.

3. CPR Part 35 and relevant court directions

The instruction should confirm that the expert is being instructed to prepare their report in accordance with CPR Part 35, Practice Direction 35 and any relevant court order or directions.

Where expert evidence requires the court's permission, the instruction should include a copy of, or clear reference to, the relevant order and any directions governing the preparation, exchange or use of the expert evidence.

4. The questions and issues for the expert

The Letter of Instruction should contain a clearly defined list of the questions and issues on which the expert is being asked to provide an opinion.

Specific questions are generally preferable to a broad request to "consider the claim" or "comment on liability".

The questions should enable the expert to understand precisely what their evidence is intended to assist the court in determining.

5. Material assumptions and gaps in information

Any material assumptions that the expert is being asked to make should be identified.

The solicitor should also identify any known gaps in the information provided. If further information is required before a reliable opinion can be reached, the expert should be able to identify this at an early stage.

6. Confidentiality, data protection and artificial intelligence

The instruction should identify any particular requirements concerning confidentiality, data protection and the handling of personal or confidential information.

Where relevant, the solicitor should also address the use of artificial intelligence (AI) or other third-party software in the preparation, storage or analysis of material provided to the expert.

This may include clarification of whether confidential or personal information may be uploaded to external AI systems or other third-party platforms.

The precise requirements will depend on the circumstances of the case, the nature of the information and any applicable legal, contractual or court-imposed restrictions. Clear instructions at the outset can help avoid uncertainty or subsequent challenges concerning the handling of confidential material.

7. A list of the materials provided

The instruction should contain a clear list of the documents and other materials provided to the expert.

For golf course and driving range claims, this may include, where relevant:

• photographs;

• site plans and drawings;

• risk assessments;

• operating procedures;

• maintenance records;

• inspection records;

• accident or incident reports;

• CCTV or other recordings;

• correspondence;

• witness statements;

• relevant policies and procedures; and

• previous reports or expert evidence.

Documents should be clearly identified, preferably by their existing document or bundle reference.

8. The relevant legal framework

The solicitor should provide a concise explanation of the relevant legal issues and principles necessary for the expert to understand the questions they are being asked to address.

The expert should not, however, be asked to determine questions of law outside their expertise.

The purpose of providing the legal framework is to explain the context in which the expert's factual or technical opinion will be considered, rather than to invite the expert to act as an advocate for either party.

9. Confidentiality, anonymity and transparency

Where relevant, the instruction should identify any restrictions or directions concerning:

• confidentiality;

• anonymity;

• reporting restrictions;

• access to court documents;

• disclosure of the expert's report; and

• publication or other use of the expert's evidence.

The solicitor should draw the expert's attention to any specific court order or direction which affects the handling or disclosure of their report or supporting material.

10. Permission and case management directions

A copy of, or reference to, any order giving permission for expert evidence should be provided where applicable.

The instruction should also identify any relevant directions governing:

• the scope of the expert evidence;

• the preparation of the report;

• exchange of reports;

• questions to experts;

• joint discussions;

• preparation of statements of agreement or disagreement; and

• the giving of oral evidence.

11. Site inspection

For claims involving golf courses and driving ranges, a site inspection may be an important part of the expert's work.

Where an inspection is contemplated, the instruction should provide details of:

• the proposed location;

• access arrangements;

• proposed dates;

• persons expected to attend;

• any restrictions on photography or recording;

• any proposed measurements or testing; and

• any relevant arrangements for access to particular areas of the course or facility.

Where the physical condition or layout of a site is relevant, early consideration should be given to whether an inspection is required before the preparation of the report.

12. Persons the expert should meet or contact

The instruction should identify any persons the expert is expected to meet or contact.

This might include, for example, representatives of the golf club, course managers, greenkeepers, facility managers, designers or other relevant individuals.

Material communications which may affect the expert's opinion or instructions should be appropriately recorded or confirmed. Care should also be taken to avoid informal discussions giving rise to uncertainty about what the expert has been asked to consider.

The expert must remain independent and must not be placed in the position of acting as an advocate for the party instructing them.

13. Deadlines and hearing dates

The instruction should clearly identify all relevant deadlines, including:

• the date by which the report is required;

• the date for exchange of reports;

• any deadline for questions to the expert;

• any deadline for a joint expert meeting or statement; and

• relevant hearing or trial dates.

Where the expert is expected to give oral evidence, sufficient notice should be provided to allow the expert to reserve the relevant dates.

14. Disclosure and intended use of the report

The instruction should make clear the intended use of the report and identify any relevant requirements concerning disclosure.

The solicitor should also draw attention to any court order or direction governing disclosure, exchange or use of the expert evidence.

15. Questions arising after instruction

The instruction should explain the procedure for raising questions or seeking clarification after the initial instruction.

This can be particularly useful where additional information becomes available during the preparation of the report or where the solicitor needs to clarify the scope of a particular question.

Any additional work falling outside the original scope of the instruction should be clearly identified and, where appropriate, separately authorised.

Should an Expert Review and Comment on the Evidence?

One issue that should be addressed expressly in a Letter of Instruction is the extent to which the expert is expected to review and comment on the evidence.

There is an important distinction between an expert considering the evidence to the extent necessary to reach and explain their opinion and being asked to undertake a wider written review or commentary on the evidential record.

A general review and commentary on the evidence can significantly increase the scope and cost of the expert's work. It may also make a report substantially longer than is necessary to address the issues requiring expert evidence.

The Letter of Instruction should therefore make clear whether:

• the expert is expected to consider the evidence insofar as it is necessary to answer the identified questions; or

• the expert is specifically being asked to provide a wider written review and commentary on the evidence.

The expert must, of course, remain independent and objective and consider material facts relevant to the opinion, including matters that may be adverse to the instructing party.

Additional Documents Provided After Instruction

Any additional material provided after the initial instruction should be clearly identified and accompanied by instructions explaining why it is being provided and what, if anything, the expert is being asked to do in response.

The solicitor should identify documents which:

• are new;

• supersede documents previously provided;

• correct or materially alter information previously provided; or

• require particular consideration by the expert.

This is particularly important where additional material is provided after the expert has completed or substantially completed their report.

If new material causes the expert to reconsider a material aspect of their opinion, the expert should deal with that appropriately in accordance with their duties under CPR Part 35.

Preparing an Expert for Oral Evidence

Where the expert is to give oral evidence, the lead instructing party should ensure that the expert is provided with the relevant and up-to-date material in sufficient time before the hearing.

Subject to the court's directions and the circumstances of the case, this should include:

• the updated court bundle, at the same time as it is lodged with the court;

• a list of documents filed since the expert was instructed, highlighting those which the parties consider should be reviewed before oral evidence is given; and

• any further "loose-leaf" documents filed shortly before the hearing which are likely to be referred to during questioning.

The expert should be given sufficient time to consider any significant new material. Late disclosure of documents without an explanation of their relevance or significance can create avoidable difficulties shortly before a hearing.

What Should Solicitors Avoid When Instructing an Expert?

A well-drafted Letter of Instruction should avoid:

• Vague questions – the expert should be told precisely what issues and questions they are being asked to address.

• Asking the expert to act as an advocate – an expert's duty is to provide independent and objective evidence to assist the court.

• Seeking opinions outside the expert's expertise – the expert should identify matters which fall outside their expertise rather than being expected to provide an opinion regardless.

• Providing documents without identifying them – documents should be clearly listed and referenced.

• Sending late documents without explaining their significance – additional material should be accompanied by clear instructions.

• Requesting an unrestricted review of the entire evidence – where a wider evidential review is required, this should be expressly identified as part of the scope of the instruction.

• Failing to identify deadlines – the expert should be given all relevant report, hearing and procedural dates.

• Relying on informal or undocumented communications – material instructions and communications should be appropriately recorded or confirmed.

• Giving the expert an incomplete factual picture – the expert must be able to understand the material facts relevant to the opinion sought.

Conclusion

A good Letter of Instruction does more than ask an expert to prepare a report. It establishes the scope of the expert's work, identifies the questions to be answered and provides the factual, documentary and procedural context necessary for the expert to fulfil their duty to the court.

For golf course and driving range claims, the instruction should be sufficiently detailed to enable the expert to understand the incident, the physical environment and the particular technical or operational issues in dispute, while remaining focused on the matters on which expert evidence is required.

A clear and carefully considered instruction can help avoid unnecessary work, reduce the risk of misunderstanding and ensure that the resulting expert evidence is focused on the issues the court needs to determine.