PART 35EXPERTS AND ASSESSORS
Duty to restrict expert evidence | Rule 35.1 |
F4Interpretation and definitions | Rule 35.2 |
Experts—overriding duty to the court | Rule 35.3 |
Court’s power to restrict expert evidence | Rule 35.4 |
General requirement for expert evidence to be given in written report | Rule 35.5 |
Written questions to experts | Rule 35.6 |
Court’s power to direct that evidence is to be given by a single joint expert | Rule 35.7 |
Instructions to a single joint expert | Rule 35.8 |
Power of court to direct party to provide information | Rule 35.9 |
Contents of report | Rule 35.10 |
Use by one party of expert’s report disclosed by another | Rule 35.11 |
Discussions between experts | Rule 35.12 |
Consequence of failure to disclose expert’s report | Rule 35.13 |
Expert’s right to ask court for directions | Rule 35.14 |
Assessors | Rule 35.15 |
Duty to restrict expert evidenceI135.1
Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.
F5Interpretation and definitions35.2
1
A reference to an ‘expert’ in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.
2
‘Single joint expert’ means an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings.
Experts—overriding duty to the courtI235.3
1
F6It is the duty of experts to help the court on matters within their expertise.
2
This duty overrides any obligation to the person from whom F7experts have received instructions or by whom they are paid.
Court’s power to restrict expert evidenceI335.4
1
No party may call an expert or put in evidence an expert’s report without the court’s permission.
F92
When parties apply for permission they must identify—
a
the field in which expert evidence is required; and
b
where practicable, the name of the proposed expert.
3
If permission is granted F10... it shall be in relation only to the expert named or the field identified under paragraph (2).
F83A
Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.
(Paragraph 7 of practice direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)
F114
The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.
General requirement for expert evidence to be given in a written reportI435.5
1
Expert evidence is to be given in a written report unless the court directs otherwise.
2
If a claim is on the F12small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.
Written questions to expertsI535.6
F131
A party may put written questions about an expert’s report (which must be proportionate) to—
a
an expert instructed by another party; or
b
a single joint expert appointed under rule 35.7.
2
Written questions under paragraph (1)—
a
may be put once only;
b
must be put within 28 days of service of the expert’s report; and
c
must be for the purpose only of clarification of the report,
unless in any case,
i
the court gives permission; or
ii
the other party agrees.
3
An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.
4
Where—
a
a party has put a written question to an expert instructed by another party F14...; and
b
the expert does not answer that question,
the court may make one or both of the following orders in relation to the party who instructed the expert—
i
that the party may not rely on the evidence of that expert; or
ii
that the party may not recover the fees and expenses of that expert from any other party.
F15Court’s power to direct that evidence is to be given by a single joint expert35.7
1
Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.
2
Where the parties who wish to submit the evidence (“the relevant parties”) cannot agree who should be the single joint expert, the court may—
a
select the expert from a list prepared or identified by the relevant parties; or
b
direct that the expert be selected in such other manner as the court may direct.
Instructions to a single joint expertI635.8
1
Where the court gives a direction under rule 35.7 for a single joint expert to be used, F16any relevant party may give instructions to the expert.
F172
When a party gives instructions to the expert that party must, at the same time, send a copy to the other relevant parties.
3
The court may give directions about—
a
the payment of the expert’s fees and expenses; and
b
any inspection, examination or experiments which the expert wishes to carry out.
4
The court may, before an expert is instructed—
a
limit the amount that can be paid by way of fees and expenses to the expert; and
b
direct that F18some or all of the relevant parties pay that amount into court.
5
Unless the court otherwise directs, the F19relevant parties are jointly and severally liable(GL) for the payment of the expert’s fees and expenses.
Power of court to direct a party to provide informationI735.9
Where a party has access to information which is not reasonably F20available to another party, the court may direct the party who has access to the information to—
a
prepare and file a document recording the information; and
b
serve a copy of that document on the other party.
Contents of reportI835.10
1
An expert’s report must comply with the requirements set out in F21practice direction 35.
F222
At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
3
The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
4
The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions—
a
order disclosure of any specific document; or
b
permit any questioning in court, other than by the party who instructed the expert,
unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.
Use by one party of expert’s report disclosed by anotherI935.11
Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.
Discussions between expertsI1035.12
1
The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—
F1a
identify and discuss the expert issues in the proceedings; and
b
where possible, reach an agreed opinion on those issues.
2
The court may specify the issues which the experts must discuss.
F233
The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which—
a
they agree; and
b
they disagree, with a summary of their reasons for disagreeing.
4
The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
5
Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.
Consequence of failure to disclose expert’s reportI1135.13
A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.
Expert’s right to ask court for directionsI1235.14
F251
Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.
F242
Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions under paragraph (1)—
a
to the party instructing them, at least 7 days before they file the requests; and
b
to all other parties, at least 4 days before they file them.
F26Assessors35.15
1
This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981 or section 63 of the County Courts Act 1984 as an assessor.
2
An assessor will assist the court in dealing with a matter in which the assessor has skill and experience.
3
An assessor will take such part in the proceedings as the court may direct and in particular the court may direct an assessor to—
a
prepare a report for the court on any matter at issue in the proceedings; and
b
attend the whole or any part of the trial to advise the court on any such matter.
4
If an assessor prepares a report for the court before the trial has begun—
a
the court will send a copy to each of the parties; and
b
the parties may use it at trial.
5
The remuneration to be paid to an assessor is to be determined by the court and will form part of the costs of the proceedings.
6
The court may order any party to deposit in the court office a specified sum in respect of an assessor’s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.
7
Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament.
Words in Pt. 35 Table of Contents substituted (1.10.2009) by virtue of The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(a)