Expert evidence was one of the most controversial issues in Lord Woolf’s civil justice inquiry in the 1990s.

Back then I was the Law Society’s civil litigation committee secretary and was very aware that solicitors wanted to retain control over ‘their’ experts. Before the implementation of the CPR in 1999, there was little judicial management of expert evidence, particularly in the county courts. Each party instructed their own expert, even in low-value claims, and solicitors ‘expert shopped’ to find an expert who backed the party’s case. Experts for each side were allowed to give oral evidence at trial even when the difference between their reports was minor.

But the CPR changed all that, giving control over expert evidence to the judges, and introducing a new type of expert, the single joint expert (SJE).

Between 1999 and the mid-2000s there was considerable satellite litigation on part 35 of the CPR. Applications were made on the need for and choice of an expert, appeals were issued against orders for SJEs, and on the right to challenge SJE reports by written questions or by calling another expert. But no rule changes were made. In the last few years, satellite litigation on part 35 has slowed to a trickle. Lord Justice Jackson’s interim costs review devotes only half a page to expert evidence. Does this mean part 35 has been working well after a shaky start? I think it does.

Review and updateFour years ago the Civil Justice Council (CJC) began a review of part 35 – they consulted widely with stakeholders. The Civil Procedure Rule Committee (CPRC) agreed to update part 35 following the CJC review. I chaired the CPRC sub-committee. The amendments to emerge from four years’ hard work are important, but only tinker with the fundamentals of part 35. They were summarised briefly by DJ Hill in his recent round-up of CPR changes (see [2009] Gazette, 1 October, 18).

Lower-value claimsLord Woolf proposed that a jointly instructed single expert should be the norm in lower-value claims. Solicitors were outraged – they wanted to choose and privately brief their expert, and ensure the disclosed report supported their client’s case. They were very nervous about the reforms, though the Law Society supported them.

But judicial case management of expert evidence is now firmly established. The Woolf protestors have mostly reluctantly accepted the reduction in control. SJEs in lower-value claims have become the norm. Occasionally we hear applications for the parties to have an expert each in fast-track or low-value multi-track claims, usually made by defendant personal injury insurers. They rarely succeed. But the rules on SJEs were still at the top of the lawyers’ list for review in the CJC consultation: complaints were made about judicial inconsistency in the requirement to instruct an SJE.

From 1 October revised rules 35.4.3 and 35.7 now explain more clearly than before that in small claims and fast-track cases the norm will be a report from a single joint expert on any one issue.

Paragraph 7 of the part 35 PD has been expanded to provide guidance on the factors to be taken into account when the court decides whether expert evidence should be given by an SJE. They include proportionality, resolving cases speedily, whether there may be a range of expert opinion (probably the most important), whether a party has already instructed an expert (legitimately or to jump the judicial gun), whether questions to the single expert may resolve the disputed issues, and whether the need for the expert to attend a conference may make the instruction of a single expert impractical.

Most judges have always considered these factors. But the intended signal to lawyers and their clients is that they will have to make out a strong case for other than an SJE in lower-value claims. In practice little should change, but there may be a few more case management conferences until the revised rules bed down.

Questions to experts and discussionsThese were both a novelty in the CPR, although they were routine in the TCC Division pre-1999. In principle both were a good idea – questions to explore inconsistencies or gaps in an expert’s report, and discussions to encourage party experts to narrow areas of apparent disagreement. Early case management directions often provide for the option of both in multi-track cases, but only because at that stage the court does not know what the real issues in the expert evidence will be.

In practice both are often necessary in lower-value claims, except where the expert evidence will be crucial to the outcome, yet the directions are often followed slavishly, no doubt because more work means more fees.

The revised rule 35.6 states that written questions to experts must be proportionate (as well as for clarification only) – so no more 20 pages of cross-examination questions on a 10-page report in a fast-track case. The PD paragraph 9.1 states that experts’ discussions are not mandatory, that lawyers will not usually attend, that experts can agree/disagree what they wish and need no authority from client or lawyer to sign the joint statement, which they should do promptly. These are all sensible additions.

Undoubtedly there will still be some attempts to manipulate expert evidence, but the new rules will give the other party and the expert some leverage to complain to the court.

Other changesOther changes to part 35 are minor and uncontroversial:

  • A slightly amended definition of an expert in rule 35.2 and adding a definition of an SJE as ‘an expert instructed to prepare a report for the court on behalf of the claimant and one or more defendants’.
  • An amendment to the expert’s statement of truth (in the PD paragraph 3.3 and the protocol) to clarify what the expert is agreeing to be true, that is the facts and matters within their own knowledge, not, as previously, also the facts that the expert has been invited to assume to be true. The new paragraph 13.5 of the protocol says that experts’ reports must contain a statement that they understand their duty to the court, have and will comply, and are aware of the requirements of part 35, the PD and the protocol.
  • The deletion of PD paragraph 6.2 regarding the use of lead experts, because since CPR implementation the lead expert concept (one expert coordinating the reports of others for the same party) has not been adopted.

ConclusionsThe pre-Woolf ‘hired gun’ experts have mostly retired. Only a minority of old-style adversarial lawyers seek to rely upon their own expert in routine cases under about £50,000. Professional experts are increasingly able to withstand client or lawyer pressure to modify their views. The October 2009 changes to part 35 should help with all these trends.

Is there anything else new in the world of expert evidence? Do you know about hot-tubbing, an Australian practice in which the judge hears oral evidence from the parties’ experts together? Here, the judge facilitates a debate between the experts to be better able to ‘compare and contrast’ their evidence.

I have tried it successfully a few times, most recently in a fast-track building dispute when both parties were in person. It works very well, provided the judge has read the papers thoroughly in advance and broadly understands the technical issues. You will not find rules on hot-tubbing in the CPR – yet?

District Judge Suzanne Burn sits at Bromley County Court. She has been a district judge since 2005. She is also a member of the CPRC, is a JSB tutor judge, is the editor of the Law Society’s Civil Litigation Handbook and writes for the White Book