The Instruction of Experts in County Court Proceedings

In accordance with the Practice Direction – Pre-Action Conduct and Protocols and CPR 35.4, parties to civil proceedings should be aware that whilst they do not necessarily need the court’s permission to obtain expert evidence the parties will need the court’s permission before being able to rely on that expert evidence at trial.

The court has powers to limit the costs recoverable in respect of expert fees and in low value claims. Particularly within the Small Claims Track, the court may direct that if expert evidence is considered necessary, that the parties instruct a single joint expert. In such circumstances, the parties will be jointly and severally liable for the fees and expenses of the joint single expert unless the court directs otherwise (CPR 35.8(5)).

A party to court proceedings may seek the assistance from an expert witness and an expert adviser; however, the two should not be confused as these are different distinct roles.

CPR Part 35 describes an expert witness as a person instructed to give expert evidence in proceedings. Usually this will be written evidence, but the expert may also be called to give oral evidence at a hearing. Such evidence is usually opinion based, derived from the expert’s professional knowledge and experience, as applied to the facts of the case, and will often include explanations of technical terms and subjects, and with relevant supporting literature or references to the same.

In accordance with CPR Rule 35.3 an expert witness’ overriding duty is to the court, rather than to the party instructing and paying them.

The Civil Justice Council has issued Guidance for the instruction of experts in civil claims which can be found here.

An expert witness must:

• Always exercise reasonable care and skill to those instructing them, and adhere to a professional code of conduct;
• Be aware of the overriding objective of the court to deal with cases justly and adhere to their obligation to the court to assist in that regard (link to overriding objective page);
• Confine their opinions to the matters in dispute and take into account all material facts before them

The role of expert advisor

An expert advisor’s role is different in that they may advise a party on technical or specialist matters and assist with preparation of statements of case and witness statements. This advice usually attracts litigation privilege, meaning that it is confidential to that party and is not disclosable to the court within the proceedings.

Where a single joint expert witness has been instructed, any relevant party may give instructions to the expert but the terms of those instructions should be agreed where possible. Where the terms of instruction cannot be agreed the parties should take steps to jointly identify where the areas of disagreement lie and confirm these in their instructions to the single joint expert. The single joint expert must keep all parties informed equally throughout the process and serve copies of the report on all parties at the same time.

Where each party is instructing their own expert witness, usually within more complex and higher value Multi-Track proceedings, reports may be simultaneously exchanged or served sequentially, often with the defendant’s expert’s report “responding” to a claimant’s expert report. Where the court considers it appropriate, it may direct that the parties’ experts enter into discussions in an attempt to try and agree an overall opinion, or to narrow the issues in dispute.

Paragraph 3.2 of CPR Practice Direction 35 sets out what an expert witness’ written report must contain as includes the requirement for a statement that, inter alia, the expert understands and has complied with their duty to the court and that the expert is aware of the requirements of CPR Part 35, CPR Practice Direction and the Guidance. In accordance with paragraph 3.3 of CPR Practice Direction 35 an expert report must also contain a statement of truth verifying the contents thereof.

Following disclosure of the expert’s report, a party may put written questions to the expert for the purposes of clarifying the contents of the report. This can be done even if the expert is instructed by an opposing party or is a single joint expert. However, in accordance with CPR Rule 35.6 questions may only be put once and must be raised within 28 days of service of the report. The expert’s replies will be treated as being part of the report.