ASK THE JUDGESQ: Civil Procedure Rules 1998 (CPR) rule 35.4 empowers the court to limit the amount of an expert's fees and expenses which the party who wished to rely on the expert may recover from the other party.

If the expert's fees or expenses are reduced on assessment, who bears the loss?A: If and order has been made limiting the amount recoverable, this will cap the amount allowed on assessment.

The costs judge cannot allow more but he may allow less.

This relates to the amount payable by the paying party to the receiving party.

How much the receiving party has to pay to the expert is entirely dependent on the contract between them and normal contractual considerations apply.

A difficulty arises when the reason for the reduction on the assessment would also be a reason (in contractual terms) for reducing the amount sought to be charged by the expert to the client.

Where such an objection is taken by the paying party in the assessment proceedings, it is prudent to invite the expert to write or even attend the assessment hearing to justify his fee with a view to reducing the risk of a dispute between expert and client which has to be litigated in other proceedings.Q: Who should sign a statement of truth where (otherwise than in a group action) there is more than one claimant or defendant? CPR rule 22.1(8) says two parties may sign jointly where this is permitted by a practice direction but I cannot see that there is any practice direction on the point.

The position may become more complicated if, say, two claimants can verify different facts but neither can verify them all.A: Each party can sign his own statement of truth and if each can speak to some only of the facts, that should be made clear in his statement (although it is implicit that he is required merely to assert his belief in what is said and not his personal knowledge of everything).

Alternatively, the statement of truth can be make by you under PD22 para 3.7 and you would be signing by reference to your clients' respective beliefs and not your own.

However, you must be able to comply with the obligations imposed on you by PD22 para 3.8 (you have the clients' authorities to sign and before signing you explained to the clients that in signing you would be confirming their beliefs that the facts stated were true.

And you informed the clients of the possible consequences if it should subsequently appear that they did not have an honest belief in the facts).

It may be thought that a solicitor, who is prepared to state that his client holds a particular belief, is a brave solicitor and that in signing a statement of truth he is following a perilous course.SURVIVING SANCTIONSThe Civil Procedure Rules 1998 (CPR) provide the court with unprecedented powers for use in the pro-active management of cases.

In particular, rule 3.1(3) gives the court an express power to attach conditions to an order, including a direction to make a payment into court, and to specify the consequences of failure to comply with the order or the conditions.While the court is not under any express obligations to attach conditions to an order, there will be less reluctance than before to impose a sanction even in an order requiring something to be done for the first time.

Even where there is no express sanction, one of the bases on which the whole or part of a statement of case can be struck out is where there has been a failure to comply with a rule, practice direction or order (rule 3.4(2)).

Thus, an omission to take a p rocedural step, such as filing an allocation questionnaire, will often result in an unless order and in principle could lead to a strike-out of the court's initiative.Help!What, then, do you do if you are faced with a sanction as a result of a mistake, forgetfulness or even a specific problem beyond your control? Forget about the Human Rights Act 1998.

Article 6 (1) does not require a hearing to take place before an order imposing a sanction can be made.

Nor does it provide a means of escape from a failure to comply with a rule.

Even if the sanction has been imposed of the court's own initiative, the right to apply for it to be set aside or varied within seven days under rule 3.3(5) is probably sufficient to ensure that the rule is compliant with article 6.Nor, in the case of a time limit, is it sufficient to do a deal with the other side.

Where a rule, practice direction or order requires something to be done within a specified time period and states the consequences of failure, rule 3.8(3) precludes any extension of time by agreement.The desirable way forward is to apply for an extension of the time within which to comply.

This should preferably be done before the time has expired.

Although rule 3.1(2)(a) permits an application to be made after expiry, the court will in such a case be looking for a better quality of excuse.

Parties are required by rule 1.3 to help the court to further the overriding objective, and if you have a problem, you should bring it to the court's attention as soon as possible.Otherwise, an application should be made for relief from sanctions, supported by evidence, pursuant to rule 3.9.

The court will consider all the circumstances and in particular the nine factors listed in rule 3.9(1), which must be considered individually and systematically (Bansal v Cheema, 2 March 2000 CA unreported).

Explanations and whether there have been other defaults will be important factors.

If the trial date can still be met if relief is granted, the court will be reluctant to retain the extreme sanction of a strike-out.

The proportionality of the sanction will be another important consideration.

In Keith v CPM Field Marketing Ltd (2000) The Times, 29 August, CA the defendants had, in the contention of the claimant's solicitors, been difficult about disclosure and the district judge had made an unless order providing for the defence to be struck out if disclosure was not made within a specified period.Before the time limit had expired, the defendants applied to a circuit judge for an extension of time, alternatively for relief from the sanction.

The circuit judge, two days before the judgments in Bansal v Cheema, refused to extend the time and struck out the defence, even though no trial date had been fixed at that stage.The Court of Appeal per Lord Justice Brooke concluded that the circuit judge's order was, in the circumstances, disproportionate.

In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out.Relaxed -- relativelyEven in 'want of prosecution' cases, the approach of the Court of Appeal to date has been relatively relaxed.

The old and hard-line authorities will generally be no longer of relevance and alternatives to striking out will be appropriate if they produce a more just result (Biguzzi v Rank Leisure plc [1999] 4 All ER 934 CA).

Where liability is not in dispute, it may be possible to protect a defendant from prejudice by making orders for costs or by disallowing interest (Walsh v Misseldine [2000] All E R (D) 261).

The inherent justice of the particular case must be considered in the light of the overriding objective (Purdy v Cambran [1999] All ER (D) 1518).

However, the thought processes behind decisions such as Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 should not be thrown overboard, and striking out can still be an appropriate sanction in a case where there has been prolonged and wholesale disregard of rules and orders (UCB Corporate Services Ltd v Halifax SW Ltd, 6 December 1999, CA, unreported).