Direction

Explanation

No permission is given for expert evidence.

The evidence of experts can be used only with the court’s permission and it is carefully controlled.
This direction makes it clear that no expert evidence can be used in the particular case.

By 4pm on [date] each party must serve and file with the Court

1. a list of issues relevant to the obtaining of expert evidence.
2. A list of the various bases of fact on which expert opinion is sought.

Sometimes it is not clear what expert evidence will be needed or even whether expert evidence will be needed at all.
By this direction, the judge is asking for the parties’ views.
The answer may be different according to which version of disputed facts is ultimately found to be correct. The parties must consider the alternatives.

The Claimant has permission to rely on the expert [medical] evidence annexed to the Particulars of Claim.  The Defendant may raise written questions of the expert by 4pm on [date] which must be answered by 4pm on [date].  [No other permission is given for expert evidence.]

When starting the claim, the Claimant may attach an expert’s report to his Particulars of Claim. (He is required to attach a medical report in a claim for personal injury.) In simple cases that may be all the expert evidence that is needed. If so, the expert does not attend court as a witness. The other party or parties can ask him questions in writing, which he must answer in writing.

The parties have permission to rely on the jointly instructed written evidence of an expert [type of expert] [who will be the same expert instructed to inspect in accordance with the Pre-Action Protocol ] [in respect of  …….. :…………….]

There will be a single expert witness instructed by the parties jointly, whose evidence will be in the form of a written report. The judge may define the issues to be addressed. Further directions may be given as to this expert, as below..
Pre-action protocols may have required an expert’s inspection before the claim is filed in court.

1. By [date] the expert should be agreed and instructed and if no expert has been instructed by that date the Claimant must apply to court by 4pm the following day for further directions.
2. By [date] the expert will report to the instructing parties.
3. By [date] the parties may put written questions to the expert.
4. By [date] the expert will reply to the questions.
5. A copy of this order must be served on the expert by the Claimant with the expert's instructions.
6. The expert may apply direct to the court for directions where necessary under Rule 35.14 Civil Procedure Rules.
7. A party seeking to call the expert to give oral evidence at trial must apply for permission to do so before pre-trial check lists are filed.
8. Unless the parties agree in writing or the Court orders otherwise, the fees and expenses of the expert shall be paid by the parties giving instructions for the report equally.

The parties are expected to agree on who the expert will be and on the instructions to be given to him. If they cannot, the court will give directions to resolve the matter.

The directions set a timetable of the preparation of the expert’s report.

A copy of the order is sent to the expert so that he will know at the earliest time the terms on which he is instructed and the timetable for him to report and to answer any questions.
The expert may apply to the court for directions, for example as to the timetable or to clarify what he should investigate.
This direction does not give permission for the expert to be asked to give oral evidence at the trial. If required, an application can be made for that additional permission.
Normally the parties pay the expert’s fee in equal shares. The share paid will become part of the party’s costs of the claim and would be included if those costs were ordered to be paid by another party.

Access must be given on reasonable request for the expert to inspect for items of alleged defect/disrepair and for necessary remedial work/repairs to be carried out.

Where the dispute concerns (for example) the state of repair of a house, the party in occupation is required to allow access for these purposes.

The parties have permission to rely on the written evidence of an expert [type of expert] [in respect of ……. ]

In more complex cases where the amount in dispute is large enough to justify the cost, permission may be given for the parties to instruct experts separately.
The use of the expert evidence is still strictly controlled.

The experts are required to consider each other’s opinions and to hold a discussion to identify and if possible resolve any differences between them. They must report the outcome to the parties and to the court.
The expert’s duty is always to the court, not to the party instructing him.

A copy of the order is sent to each expert so that they are aware of the terms under which they are instructed and the timetable for them to report, to answer any questions, to confer with each other and to produce a joint statement. Any expert may apply to the court for directions, for example as to the timetable or to clarify what he should investigate.

If the direction does not give permission for the expert to be asked to give oral evidence at the trial, an application can be made for that permission.

The parties have permission to rely on written expert evidence [in respect of ….. ] as follows

1. The Claimant:
2. an expert [type of expert], namely [name], whose report must be served by [date]
3. an expert [type of expert], namely [name], whose report must be served by [date]
4. an expert [type of expert], namely [name], whose report must be served by [date]

• The Defendant:

1. an expert [type of expert], namely [name], whose report must be served by [date]
2. an expert [type of expert], namely [name], whose report must be served by [date]
3. an expert [type of expert], namely [name], whose report must be served by [date]

• The parties may raise written questions of the authors of any reports served on them pursuant to this Order by 4pm on [date] which must be answered by 4pm on [date]
• Unless the reports are agreed, there must be a without prejudice discussion between the experts of like discipline by 4pm on [date] in which the experts will identify the issues between them and reach agreement if possible.  The experts will prepare for the court and sign a statement of the issues on which they agree and on which they disagree with a summary of their reasons in accordance with Rule 35.12 Civil Procedure Rules, and each statement must be sent to the parties to be received by 4pm on [date].
• A copy of this order must be served on the expert by each party with the expert's instructions.  The experts are reminded of their right where necessary to apply to the court directly for further directions under Rule 35.14 of the Civil Procedure Rules.
• The parties have permission to call oral evidence of these experts. or A party seeking to call oral expert evidence at trial must apply for permission to do so before pre-trial check lists are filed.

In more complex cases, the parties may wish to rely on a number of different kinds of expert.

In this example, three kinds of expert will be used.

The considerations described above, where only one kind of expert is used by each party, apply equally in this situation.

Any unpublished literature upon which any expert witness proposes to rely must be served at the same time as service of his report together with a list of published literature.  No expert witness may rely upon any publications that have not been disclosed in accordance with this order without the permission of the trial judge subject to costs as appropriate.

If, in reaching his opinions, an expert takes into account material contained in books, research reports etc, he must say so and identify the publications in question.

Experts will, at the time of producing their reports, incorporate details of any employment or activity which raises a possible conflict of interest

If an expert has some connection with a party or some matter in issue, he may (even unconsciously) be influenced by it. He is here directed to disclose any such connection.

For the avoidance of doubt, experts do not require the authorisation of solicitor or counsel before signing a joint statement

There used to be some concern that an expert needed the authority of the party instructing him before signing a joint statement with another expert. As the expert’s duty is to the court, not to the party, this is not so. This paragraph merely confirms that.

If an expert radically alters an opinion previously recorded, the joint statement should include a note or addendum by that expert explaining the change of opinion.

The expert may record a substantially changed opinion but he must make clear why he has done so.

An agenda identifying the outstanding issues for discussion may be prepared as necessary and should be agreed at least 35 days before the agreed date for the experts’ discussions.

In complex cases it will help to structure the experts’ discussion by having an agenda

The experts’ joint statement may include action, if any, which may be taken to resolve the outstanding points of disagreement, any further material points not raised in any Agenda and the extent to which the issues are agreed.

The experts may recommend steps to be taken which may help to reduce the areas of disagreement between them.