Part 35 of the Civil Procedure Rules (CPR) governs expert evidence in civil proceedings in England and Wales. The part is divided into several sections, each of which addresses specific issues related to the use of expert evidence. This article will provide an analysis of each section of Part 35 and examine relevant case law.
Section 1: Introduction
Section 1 provides an introduction to the part, setting out its scope and purpose. The section emphasizes the importance of expert evidence in assisting the court and providing objective and independent opinions. The section also sets out the duty of experts to assist the court, rather than the party who has instructed them.
Section 2: Experts and assessors
Section 2 sets out the qualifications required for experts and assessors and provides guidance on their duties. The section states that an expert must have the necessary qualifications, experience, and knowledge to provide the opinion required. The section also emphasizes the duty of experts to provide objective and independent opinions and to comply with their duty to the court.
The case of Bank of Ireland v Watts Group Plc [2017] EWHC 1667 (TCC) is an example of a case where the court considered the independence of an expert. In this case, the court allowed the expert to give evidence, despite a challenge to their qualifications, because the expert had extensive experience in the relevant field. The judge found that the bank’s expert was not independent since the bank was the expert’s principal client and had provided the majority of his work and fees; the judge did not accept his evidence.
Section 3: Instruction of experts and use of reports
Section 3 sets out the requirements for instructing experts and the use of expert reports. The section requires that instructions to experts be clear and concise and that the report produced by the expert be verified as accurate. The section also provides guidance on the use of joint statements and the timing of the exchange of expert reports.
In the case of Jones v Kaney [2011] UKSC 13, the court considered the use of expert reports and the duties of experts and their immunity from legal action. Mr. Jones, who was claiming for psychological after-effects of a road accident, sued Dr. Kaney, his expert witness, for negligence after she signed a joint report that did not reflect her views. The Supreme Court rejected the traditional justifications for protecting expert witnesses from being sued, stating that experts can be sued by their clients for negligence in non-contentious work without it putting them off acting.
Section 4: Experts’ discussions and meetings
Section 4 deals with the conduct of experts’ discussions and meetings. The section provides guidance on the use of joint statements and the timing of the exchange of expert reports. The section also allows the court to direct experts to meet and discuss issues relevant to the case.
Section 5: Expert evidence at trial
Section 5 deals with the presentation of expert evidence at trial. The section sets out the requirements for expert witnesses to be called to give evidence and the use of written evidence in lieu of oral testimony. The section also provides guidance on the cross-examination of expert witnesses.
Section 6: Limits on expert evidence
Section 6 sets out the limits on expert evidence and provides guidance on when expert evidence is not required. The section states that expert evidence must be relevant to the issues in dispute, and the court may exclude expert evidence that is not necessary to resolve the issues.
Section 7: Discussions between experts
Section 7 deals with discussions between experts and sets out the rules and guidelines for expert discussions. The section states that expert discussions must be conducted in good faith, with the aim of reaching an agreement on the issues in dispute. The section also allows the court to direct experts to hold a meeting to discuss issues relevant to the case.
Section 8: Instructions to single joint experts
Section 8 provides guidance on the instructions given to single joint experts, including the content and form of the instructions. The section emphasizes the importance of the instructions being clear and concise and sets out the requirements for the expert to provide a report and to be available for cross-examination.
Section 9: Change of expert
Section 9 deals with the change of expert and sets out the requirements for a party to change an expert. The section requires the party seeking to change the expert to obtain permission from the court and provide a detailed explanation for the change.
Section 10: Concurrent expert evidence
Section 10 provides guidance on the use of concurrent expert evidence, also known as “hot-tubbing.” The section allows the court to direct the parties to use concurrent expert evidence, with the aim of facilitating discussion and agreement on issues in dispute.
Part 35 of the Civil Procedure Rules (CPR) outlines the rules and guidelines for the use of expert evidence in civil proceedings in England and Wales. The part covers the qualifications required for experts, the limits of expert evidence, expert discussions, instructions to single joint experts, change of expert, and concurrent expert evidence. Relevant case law has been considered to help interpret and analyse the different sections of Part 35.
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