Cambridge Orthopaedic Medicolegal

Call Us on 01223 253763 to discuss your needs

Mr Jai Chitnavis MA MChir FRCS FRCS (Trauma and Orthopaedics)
Consultant Orthopaedic Surgeon,
Senior Anatomy Demonstrator,
Cambridge, England

Email info@CambridgeOrthopaedicMedicolegal.com or complete the contact form below.

https://www.jspubs.com/index.htm

Civil Procedure Rules Part 35-Experts and Accessors

Duty to restrict expert evidence
35.1 Expert evidence shall be restricted to that which is reasonably required to
resolve the proceedings.

Interpretation
35.2 A reference to an `expert’ in this Part is a reference to an expert who has been
instructed to give or prepare evidence for the purpose of court proceedings.

Experts – overriding duty to the court
35.3
(1) It is the duty of an expert to help the court on the matters within his
expertise.
(2) This duty overrides any obligation to the person from whom he has
received instructions or by whom he is paid.

Court’s power to restrict expert evidence
35.4
(1) No party may call an expert or put in evidence an expert’s report without
the court’s permission.
(2) When a party applies for permission under this rule he must identify –
(a) the field in which he wishes to rely on expert evidence; and
(b) where practicable the expert in that field on whose evidence he wishes
to rely.
(3) If permission is granted under this rule it shall be in relation only to the
expert named or the field identified under paragraph (2).
(4) The court may limit the amount of the expert’s fees and expenses that the
party who wishes to rely on the expert may recover from any other party.

General requirement for expert evidence to be given in a written report
35.5
(1) Expert evidence is to be given in a written report unless the court directs
otherwise.
(2) If a claim is on 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 experts
35.6
(1) A party may put to –
(a) an expert instructed by another party; or
190
(b) a single joint expert appointed under rule 35.7, written questions
about his report.
(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 in accordance with this rule; 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.

Court’s power to direct that evidence is to be given by a single joint expert
35.7
(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 given by one
expert only.
(2) The parties wishing to submit the expert evidence are called `the
instructing parties’.
(3) Where the instructing parties cannot agree who should be the expert, the
court may –
(a) select the expert from a list prepared or identified by the instructing
parties; or
(b) direct that the expert be selected in such other manner as the court
may direct.

Instructions to a single joint expert
35.8
(1) Where the court gives a direction under rule 35.7 for a single joint expert to
be used, each instructing party may give instructions to the expert.
(2) When an instructing party gives instructions to the expert he must, at the
same time, send a copy of the instructions to the other instructing 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 the instructing parties pay that amount into court.
(5) Unless the court otherwise directs, the instructing 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 information
35.9
Where a party has access to information which is not reasonably available to
the other 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 report
35.10
(1) An expert’s report must comply with the requirements set out in the
relevant practice direction.
(2) At the end of an expert’s report there must be a statement that –
(a) the expert understands his duty to the court; and
(b) he has complied with that duty.
(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 another
35.11
Where a party has disclosed an expert’s report, any party may use that
expert’s report as evidence at the trial.

Discussions between experts
35.12
(1) The court may, at any stage, direct a discussion between experts for the
purpose of requiring the experts to –
(a) identify the issues in the proceedings; and
(b) where possible, reach agreement on an issue.
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts they
must prepare a statement for the court showing –
(a) those issues on which they agree; and
(b) those issues on which they disagree and 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 report
35.13
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 directions
35.14
(1) An expert may file a written request for directions to assist him in carrying
out his function as an expert.
(2) An expert may request directions under paragraph (1) without giving
notice to any party.
(3) The court, when it gives directions, may also direct that a party be served
with –
(a) a copy of the directions; and
(b) a copy of the request for directions.

Assessors
35.15
(1) This rule applies where the court appoints one or more persons (an
`assessor’) under section 70 of the Supreme Court Act 1981 or section 63 of
the County Courts Act 1984.
(2) The assessor shall assist the court in dealing with a matter in which the
assessor has skill and experience.
(3) An assessor shall take such part in the proceedings as the court may direct
and in particular the court may –
(a) direct the assessor to prepare a report for the court on any matter at
issue in the proceedings; and
(b) direct the assessor to attend the whole or any part of the trial to
advise the court on any such matter.
(4) If the 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 the assessor for his services shall be
determined by the court and shall form part of the costs of the proceed-
ings.
(6) The court may order any party to deposit in the court office a specified
sum in respect of the 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.