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CPR Changes - 26th update

On 25th March 2002 the 26th update to the CPR came into affect. Certain changes affect Experts - in Part 35 and the Practice Direction to accompany Part 35.  The overall changes are important in that they are a combination of rationalisation and tidying. They should not cause Academy members or any well informed reputable expert any problems as they reflect a combination of Academy Best Practice, matters covered in our CPR Code of Guidance and matters that we have advocated. However they will require slight but important changes to the Expert's Declaration in the Report. A revised Declaration is now available [click here]. Adjustments are also being made to the CPR Code of Guidance, which will be circulated shortly. Detailed comment on the changes appear at the bottom of the page
Changes to Part 35
35.12	para (1), sub-paras (a) and (b) replaced with new text
35.14	para (2) replaced with new text; para (3), after ‘served with’ new text is inserted, and sub-paras (a) and (b) have been deleted
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 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. (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.
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 must, unless the court orders otherwise, provide a copy of any proposed request for directions under paragraph (1)- (a) to the party instructing him, at least 7 days before he files the request; and (b) to all other parties, at least 4 days before he files it. (3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.
Changes to Practice Direction PD 35 Paras 1.1-1.6 replaced with new text. Section (2) is replaced (with items 2.1-2.6). Existing sections 2-6 renumbered as 3-7
EXPERT EVIDENCE - GENERAL REQUIREMENTS 1.1 It is the duty of an expert to help the court on matters within his own expertise: rule 35.3(1). This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid: rule 35.3(2). 1.2 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 1.3 An expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate. 1.4 An expert should consider all material facts, including those which might detract from his opinion. 1.5 An expert should make it clear: (a) when a question or issue falls outside his expertise; and (b) when he is not able to reach a definite opinion, for example because he has insufficient information. 1.6 If, after producing a report, an expert changes his view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.
FORM AND CONTENT OF EXPERT'S REPORTS 2.1 An expert's report should be addressed to the court and not to the party from whom the expert has received his instructions. 2.2 An expert's report must: (1) give details of the expert's qualifications; (2) give details of any literature or other material which the expert has relied on in making the report; (3) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based; (4) make clear which of the facts stated in the report are within the expert's own knowledge; (5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision; (6) where there is a range of opinion on the matters dealt with in the report-7 (a) summarise the range of opinion, and (b) give reasons for his own opinion; (7) contain a summary of the conclusions reached; (8) if the expert is not able to give his opinion without qualification, state the qualification; and (9) contain a statement that the expert understands his duty to the court, and has complied and will continue to comply with that duty. 2.3 An expert's report must be verified by a statement of truth as well as containing the statements required in paragraph 2.2(8) and (9) above. 2.4 The form of the statement of truth is as follows: 'I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.' 2.5 Attention is drawn to rule 32.14 which sets out the consequences of verifying a document containing a false statement without an honest belief in its truth. (For information about statements of truth see Part 22 and the practice direction which supplements it.) 2.6 In addition, an expert's report should comply with the requirements of any approved expert's protocol.
Comments The changes are noted individually showing the alterations. The numbering shown is the (new) CPR number. 35.12 (1)(a) the word 'expert' has been added. This makes it crystal clear that the discussions are about the expert issues. [Return] (1)(b) 'issue' is made plural making it clear that the discussion is not restricted to one expert issue. [Return] 35.14 (2)(a) this removes the ability of the expert to apply to the court for directions without having given notice (7 days) to the party instructing him. [Return] (2)(b) this requires 4 days notice to be given to the other side. This change follows the Commercial Court and practice and The Academy philosophy. The careful reader will note that both (a) and (b) do not apply if 'the court orders otherwise'. We shall have to wait and see how the court can so order as the expert has to serve a copy of his proposed request before applying to the court! [Return] (3) this remains as at present but it removes the court's ability to direct that a copy of the request be served. Presumably because of the new notice requirements - subject of course to the court having ordered that 'notice' shall not be given. [Return] PD 35 1.1 although this is new it is a virtual rewrite of a section in the Expert's Declaration. It is interesting to note that it now introduces a 'paramount' duty that 'overrides' other obligations. Wordsmiths might feel that this suggests that 'overriding' duty is not as 'overriding' as had previously been thought. 1.2 to 1.6 although new to CPR they are not new to experts. Effectively it incorporates the 'Ikarian Reefer Rules' within CPR. 2.2(4) this is new and should be read in conjunction with the new declaration of truth (see 2.4). 2.2(9) this now makes clear that the duty to the court is a continuing one and is not discharged with the writing of the expert's report. The words 'and will continue' have been added to 'comply'. 2.4 At last! The Academy raised the form of the declaration of truth before the rules even came into effect. The new declaration follows that in use in the Commercial Court. It is in two parts, the affirmation of truth of the facts 'within the expert's own knowledge' (compared with the previous all facts) and that the opinion represents the 'true and complete professional opinion'. Return