Factsheet 35: CPR35 Experts and Assessors: the Rules and Practice Direction

Transcription

1 Factsheet 35: CPR35 Experts and Assessors: the Rules and Practice Direction When the then Lord Chancellor, Lord Mackay, appointed Lord Woolf to conduct an inquiry into the civil justice system in England and Wales, it was in response to a growing realisation that existing practices and procedures were failing to meet the needs of court users. In an Interim Report released in June 1995 Lord Woolf identified the principal faults of the system as being its complexity, the delays that flowed from that, and the resulting expense. In his Final Report a year later he made a whole series of recommendations designed to address these issues. 1 Principal among these was the replacement of the antiquated rules governing procedure in the High Court and county courts with a completely revised and rewritten set common to them both. The new Civil Procedure Rules were laid before Parliament in December 1998, and by April 2018 had been amended 97 times. They are grouped into more than 80 sections (termed Parts ) and run to several hundred pages of text 2. For this factsheet we must content ourselves with reproducing the text of the section of most direct concern to expert witnesses Part 35 as it stood at April Aims The Civil Procedure Rules give statutory effect to most of the reforms proposed by Lord Woolf. They not only alter the way in which civil disputes are dealt with by the courts but, in conjunction with their associated practice directions and preaction protocols, seek to bring about a fundamental change in the culture of litigation. The emphasis throughout is on encouraging parties to cooperate in the preparation of their cases, to identify at an early stage the issues in dispute, to facilitate the negotiation of settlements and to control costs. Case management Central to the realisation of these aims is the transfer from the parties to the court of responsibility for the conduct and pace of litigation. The Civil Procedure Rules accord judges a case management role, requiring them to allocate claims to different tracks according to their value and perceived complexity and, in general, to control every aspect of the process from start to finish. Interpretation Two things about the Rules that will strike the reader immediately are their clarity and concision. This is because, unlike their predecessors, they have not been drafted to cover every conceivable circumstance, but rather to establish a framework within which the civil courts may operate. Last reviewed: May 2018 The Civil Procedure Rules Part 35: Experts and Assessors This text is taken from the 97th update to the Civil Procedure Rules, dated May 2018 Crucially, they require judges to interpret them in the interest of achieving the overriding objective of dealing with cases justly. This involves, among other attributes, ensuring that claims are disposed of expeditiously and that costs are kept to a minimum. As will be seen, both these considerations are well to the fore in the Rules relating to expert evidence. Non-compliance Although only one of the Rules in Part 35 specifies penalties for non-compliance, that is not to say that an expert s failure to observe others will go unpunished. In fact there is a whole armoury of sanctions available to both procedural and trial judges. These range from, at one end of the scale, disallowance of the expert s fees and expenses to, at the other end, the striking out of the client s case. Obviously, the more serious the effect of a sanction on the client, the more vulnerable the expert will be to a suit for negligence. 3 Costs In general, procedural and trial judges now have much greater powers than before to limit the costs that may be recovered by a winning party. Quite apart from using them to penalise litigants who flout the Rules, they are required to exercise these powers in the interest of keeping the expense of litigation proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the parties financial positions. Most issues relating to costs can in fact be settled either in the preliminary stages or at the trial of the action, and in many instances the court is able to make a summary assessment of the costs there and then. A separate hearing for their detailed assessment (akin to the former taxation procedure) should only be necessary if the case has proved unusually complex or the parties to it have incurred considerable expenditure. The Jackson Reforms In April 2013, as part of the changes that flowed from Lord Justice Jackson s report into the control of costs in civil litigation, changes were made to Rule 35.4 requiring that an estimate of costs in respect of expert evidence be provided. Further amendments were made to clarify the issues any expert will address and to allow the court to specify issues the expert evidence should address. The practice direction was also changed to provide that the court may direct that experts from like disciplines give their evidence concurrently (so-called hot tubbing ). The procedures following such a direction are also set out Duty to restrict expert evidence Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings Interpretation and definitions (1) A reference to an expert in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.

2 (2) Single joint expert means an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings. (2) If a claim is on the small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice Experts overriding duty to the court (1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid Court s power to restrict expert evidence (1) No party may call an expert or put in evidence an expert s report without the court s permission. (2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify (a) the field in which expert evidence is required and the issues which the expert evidence will address; and (b) where practicable, the name of the proposed expert. (3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address. (3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue. (3B) In a soft tissue injury claim, permission (a) may normally only be given for one expert medical report; (b) may not be given initially unless the medical report is a fixed cost medical report. Where the claimant seeks permission to obtain a further medical report, if the report is from a medical expert in any of the following disciplines (i) Consultant Orthopaedic Surgeon; (ii) Consultant in Accident and Emergency Medicine; (iii) General Practitioner registered with the General Medical Council; or (iv) Physiotherapist registered with the Health and Care Professions Council the report must be a fixed cost medical report. (3C) In this rule, fixed cost medical report and soft tissue injury claim have the same meaning as in paragraph 1.1(10A) and (16A), respectively, of the RTA Protocol. (Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.) (4) The court may limit the amount of a party s expert s fees and expenses that may be recovered from any other party General requirement for expert evidence to be given in a written report (1) Expert evidence is to be given in a written report unless the court directs otherwise Written questions to experts (1) A party may put written questions about an expert s report (which must be proportionate) to (a) an expert instructed by another party; or (b) a single joint expert appointed under rule (2) Written questions under paragraph (1) (a) may be put once only; (b) must be put within 28 days of service of the expert s report; and (c) must be for the purpose only of clarification of the report, unless in any case (i) the court gives permission; or (ii) the other party agrees. (3) An expert s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert s report. (4) Where (a) a party has put a written question to an expert instructed by another party; and (b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert (i) that the party may not rely on the evidence of that expert; or (ii) that the party may not recover the fees and expenses of that expert from any other party Court s power to direct that evidence is to be given by a single joint expert (1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert. (2) Where the parties who wish to submit the evidence ( the relevant parties ) cannot agree who should be the single joint expert, the court may (a) select the expert from a list prepared or identified by the relevant parties; or (b) direct that the expert be selected in such other manner as the court may direct Instructions to a single joint expert (1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, any relevant party may give instructions to the expert. (2) When a party gives instructions to the expert that party must, at the same time, send a copy to the other relevant parties. (3) The court may give directions about (a) the payment of the expert s fees and expenses; and (b) any inspection, examination or experiments which the expert wishes to carry out. (4) The court may, before an expert is instructed (a) limit the amount that can be paid by way of fees and expenses to the expert; and (b) direct that some or all of the relevant parties pay that amount into court.

3 (5) Unless the court otherwise directs, the relevant parties are jointly and severally liable for the payment of the expert s fees and expenses Power of court to direct a party to provide information (1) Where a party has access to information which is not reasonably available to another party, the court may direct the party who has access to the information to (a) prepare and file a document recording the information; and (b) serve a copy of that document on the other party Contents of report (1) An expert s report must comply with the requirements set out in practice direction 35. (2) At the end of an expert s report there must be a statement that the expert understands and has complied with their duty to the court. (3) The expert s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written. (4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions (a) order disclosure of any specific document; or (b) permit any questioning in court, other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete Use by one party of expert s report disclosed by another Where a party has disclosed an expert s report, any party may use that expert s report as evidence at the trial Discussions between experts (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 setting out those issues on which (a) they agree; and (b) they disagree, with a summary of their reasons for disagreeing. The Civil Procedure Rules published in January 1999 were accompanied by 32 practice directions, one of which relates to Part 35 of the Rules and is reproduced here. Practice directions are subordinate to rules of court, being less concerned with principles than with detailing the steps that need to be taken in given circumstances. Nevertheless, Practice Direction (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 Consequence of failure to disclose expert s report A party who fails to disclose an expert s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission Expert s right to ask court for directions (1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions. (2) Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions under paragraph (1) (a) to the party instructing them, at least 7 days before they file the requests; and (b) to all other parties, at least 4 days before they file them. (3) The court, when it gives directions, may also direct that a party be served with a copy of the directions Assessors (1) This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981 or section 63 of the County Courts Act 1984 as an assessor. (2) An assessor will assist the court in dealing with a matter in which the assessor has skill and experience. (3) An assessor will take such part in the proceedings as the court may direct and in particular the court may direct an assessor to (a) prepare a report for the court on any matter at issue in the proceedings; and (b) attend the whole or any part of the trial to advise the court on any such matter. (4) If an assessor prepares a report for the court before the trial has begun (a) the court will send a copy to each of the parties; and (b) the parties may use it at trial. (5) The remuneration to be paid to an assessor is to be determined by the court and will form part of the costs of the proceedings. (6) The court may order any party to deposit in the court office a specified sum in respect of an assessor s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited. (7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament. the same sanctions are available to judges in dealing with infringements of them. The practice direction on experts and assessors is a somewhat hybrid document. It amplifies a number of the Rules provisions (for example, those relating to the appointment of single joint experts and of assessors), while repeating others

4 almost verbatim. It also sets out some detailed requirements concerning the content of expert reports which had previously figured in draft versions of the Rules. In addition, though, it specifies a couple of general requirements that are not even hinted at there. These are that an expert report must be Practice Direction: Experts and Assessors This text is taken from the 97th update to the Civil Procedure Rules, dated May 2018 Introduction 1 Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by only one expert. Experts and those instructing them are expected to have regard to the guidance contained in the Guidance for the Instruction of Experts in Civil Claims 2014 at (Further guidance on experts is contained in Annex C to the Practice Direction (Pre-Action Conduct)). Expert Evidence General Requirements 2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate. 2.3 Experts should consider all material facts, including those which might detract from their opinions. 2.4 Experts should make it clear (a) when a question or issue falls outside their expertise; and (b) when they are not able to reach a definite opinion, for example because they have insufficient information. 2.5 If, after producing a report, an expert s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court. 2.6 (1) In a soft tissue injury claim, where permission is given for a fixed cost medical report, the first report must be obtained from an accredited medical expert selected via the MedCo Portal (website at: (2) The cost of obtaining a further report from an expert not listed in rule 35.4(3C)(a) to (d) is not subject to rules 45.19(2A)(b) or 45.29I(2A)(b), but the use of that expert and the cost must be justified. (3) Accredited medical expert, fixed cost medical report, MedCo, and soft tissue injury claim have the same meaning as in paragraph 1.1(A1), (10A), (12A) and (16A), respectively, of the RTA Protocol. Form and Content of an Expert s Report 3.1 An expert s report should be addressed to the court and not to the party from whom the expert has received instructions. 3.2 An expert s report must: (1) give details of the expert s qualifications; (2) give details of any literature or other material which has been relied on in making the report; verified by a statement of truth, and that it should comply with the CJC s Guidance for the instruction of experts in civil claims (see Factsheet 53 for full details). The form the statement of truth should take is prescribed in the practice direction at 3.3 below. (3) contain a statement setting out the substance of all facts and instructions 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 (a) summarise the range of opinions; and (b) give reasons for the expert s own opinion; (7) contain a summary of the conclusions reached; (8) if the expert is not able to give an opinion without qualification, state the qualification; and (9) contain a statement that the expert (a) understands their duty to the court, and has complied with that duty; and (b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims An expert s report must be verified by a statement of truth in the following form I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. (Part 22 deals with statements of truth. Rule sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.) Information 4 Under rule 35.9 the court may direct a party with access to information, which is not reasonably available to another party to serve on that other party a document, which records the information. The document served must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information and an assessment of its significance. Instructions 5 Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents). Before it gives permission the court must be satisfied that

5 there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the crossexamination where it appears to be in the interests of justice. Questions to Experts 6.1 Where a party sends a written question or questions under rule 35.6 direct to an expert, a copy of the questions must, at the same time, be sent to the other party or parties. 6.2 The party or parties instructing the expert must pay any fees charged by that expert for answering questions put under rule This does not affect any decision of the court as to the party who is ultimately to bear the expert s fees. Single joint expert 7 When considering whether to give permission for the parties to rely on expert evidence and whether that evidence should be from a single joint expert the court will take into account all the circumstances in particular, whether: (a) it is proportionate to have separate experts for each party on a particular issue with reference to (i) the amount in dispute; (ii) the importance to the parties; and (iii) the complexity of the issue; (b) the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts; (c) expert evidence is to be given on the issue of liability, causation or quantum; (d) the expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion; (e) a party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol; (f) questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert; (g) questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial; (h) a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical; and (i) a claim to privilege makes the instruction of any expert as a single joint expert inappropriate. Orders 8 Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert. The claimant must serve the order on a single joint expert. Discussions between experts 9.1 Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts discussion and if so when. 9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify: (i) the extent of the agreement between them; (ii) the points of and short reasons for any disagreement; (iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and (iv) any further material issues not raised and the extent to which these issues are agreed. 9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone. 9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions. 9.5 If the legal representatives do attend (i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and (ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives. 9.6 A statement must be prepared by the experts dealing with paragraphs 9.2(i) - (iv) above. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing. 9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement. 9.8 If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion. Assessors 10.1 An assessor may be appointed to assist the court under rule Not less than 21 days before making any such appointment, the court will notify each party in writing of the name of the proposed assessor, of the matter in respect of which the assistance of the assessor will be sought and of the qualifications of the assessor to give that assistance Where any person has been proposed for appointment as an assessor, any party may object to that person either personally or in respect of that person s qualification Any such objection must be made in writing and filed with the court within 7 days of receipt of the notification referred to in paragraph 10.1 and will be taken into account by the court in deciding whether or not to make the appointment Copies of any report prepared by the assessor will be sent to each of the parties but the assessor will not give oral evidence or be open to cross-examination or questioning. Concurrent expert evidence 11.1 At any stage in the proceedings the court may direct that some or all of the evidence of experts from like disciplines shall be given concurrently. The procedure set out in paragraph 11.4 shall apply in respect of any part of the evidence which is to be given concurrently To the extent that the expert evidence is not to be given concurrently, the court may direct the evidence to be given in any appropriate manner. This may include a direction for the experts from like disciplines to give their evidence and

6 be cross-examined on an issue-by-issue basis, so that each party calls its expert or experts to give evidence in relation to a particular issue, followed by the other parties calling their expert or experts to give evidence in relation to that issue (and so on for each of the expert issues which are to be addressed in this manner) The court may set an agenda for the taking of expert evidence concurrently or on an issue-by-issue basis, or may direct that the parties agree such an agenda subject to the approval of the court. In either case, the agenda should be based upon the areas of disagreement identified in the experts joint statements made pursuant to rule Where expert evidence is to be given concurrently, then (after the relevant experts have each taken the oath or affirmed) in relation to each issue on the agenda, and subject to the judge s discretion to modify the procedure (1) the judge will initiate the discussion by asking the experts, in turn, for their views in relation to the issues on The case of Stevens -v- Gullis (Pile, third party) heard by the Court of Appeal in July 1999 provided that court with an early opportunity to affirm the duties and responsibilities of expert witnesses under the Civil Procedure Rules. The case also makes plain the potentially dire consequences for the client of failure on an expert s part to observe the specific requirements regarding experts reports that are laid down in Part 35 and its associated Practice Direction. The lead judgment of the Court of Appeal was delivered by the Master of the Rolls, Lord Woolf, and it was notably detailed and wide ranging. Unfortunately, though, the published report of it 5 was much condensed and omitted to record that the Court had upheld one particularly important decision of the judge (see below). For much of the detail included in the following account of the case we are indebted to Mr Simon Chandler of CMS Cameron McKenna, solicitors for the architect in the third-party proceedings. The dispute In Stevens -v- Gullis the claimant was a builder who had been employed by the defendant to refurbish some shop premises. The total value of the work was 122,000. The employer s architect, a Mr Pile, supervised the work, and in February 1995 he issued a final certificate for 8,764 + VAT. The builder s invoice for this amount went unpaid, and when he sued for the money in Cardiff County Court the defendant employer counterclaimed for 127,000 under various heads, including defective and incomplete works and delay in completion. Enter the expert In the first half of 1997 a building surveyor, Mr S J Isaac, was instructed on behalf of the defendant, and he prepared a schedule supporting, point by point, the latter s counterclaim. On the basis of this schedule, an amended defence was filed, by which stage there were no fewer than 170 live issues. At the same time the defendant initiated third-party proceedings against his architect, alleging negligent supervision and overcertification. In April 1998 the parties to the main action were given leave to adduce expert evidence. At the same time they were Cautionary tale the agenda. Once an expert has expressed a view the judge may ask questions about it. At one or more appropriate stages when questioning a particular expert, the judge may invite the other expert to comment or to ask that expert s own questions of the first expert; (2) after the process set out in (1) has been completed for any issue (or all issues), the judge will invite the parties representatives to ask questions of the experts. Such questioning should be directed towards: a) testing the correctness of an expert s view; b) seeking clarification of an expert s view; or c) eliciting evidence on any issue (or on any aspect of an issue) which has been omitted from consideration during the process set out in (1); and (3) after the process set out in (2) has been completed in relation to any issue (or all issues), the judge may summarise the experts different positions on the issue and ask them to confirm or correct that summary. ordered to arrange a meeting of their experts to reduce the number of issues in dispute to a more manageable number. As usual the experts were required to prepare joint memoranda of matters agreed or not agreed. There were difficulties in setting up the meeting, but this eventually took place on 11 November Soon afterwards the other experts sent Mr Isaac a draft Memorandum of Agreement for him to sign, but despite numerous reminders and much chasing he failed to respond. Furthermore, he was late in submitting the reports on which the owner proposed to rely in both actions. Nevertheless, in December 1998 an 8 day trial was listed for the following June. Preliminary hearings By then the solicitors for the architect had come to suspect that Mr Isaac must have taken his instructions from the defendant direct, and that this accounted for the fact that his reports were undated, confused and showed little relation to the issues pleaded. Citing these concerns and the principles laid down by Mr Justice Cresswell in the case of The Ikarian Reefer, 1 they obtained from the court an unless order, which required Mr Isaac to supply the details specified in paragraph 2.2 of the Practice Direction relating to Part 35 of the Civil Procedure Rules, or else be debarred from appearing as an expert witness in the third-party proceedings. A copy of the Practice Direction was attached to the order. Although Mr Isaac made a stab at complying with the order, it was only to the extent of supplying details of his qualifications and experience. He neither made the required statement that he understood his duty to the court and had complied with it, nor set out the substance of the instructions he had received. Accordingly, at a further hearing held barely a month before the trial was due to take place, His Honour Judge Moseley QC ruled that in the interests of the administration of justice Mr Isaac could not give expert evidence in the third-party action. No-one bringing an action for professional negligence can hope to succeed without expert evidence, and under the old Rules the employer might then have secured a postponement of the trial to enable him to sort matters out and instruct a new expert. Under the Rules, though, the solicitors for the

7 architect successfully applied for the third-party action to be dealt with there and then, and in the absence of expert evidence Judge Moseley was bound to dismiss it. In doing so he also ordered that the costs of the third-party action be paid by the defendant. At a subsequent hearing the judge made a similar ruling preventing Mr Isaac from giving expert evidence in the main action. He declined, though, to deal with that case summarily, holding that the defendant s counterclaim might yet succeed without expert evidence. He also left open the possibility that Mr Isaac could give evidence of fact at the trial of the action. The defendant appealed all three decisions on the basis that the judge had exceeded his powers and improperly exercised his discretion, and that this had resulted in an outcome that was extreme, draconian and unjust. The appeal The Court of Appeal heard the appeal within a month of it being filed and had little difficulty in rejecting all the grounds that were advanced on the defendant s behalf. In the opinion of the Court, Judge Moseley had been both entitled to make the orders he did and fully justified in doing so. The only criticism the Court made of the judge was that he had not gone far enough. In its view he should have debarred the defaulting expert from giving any evidence at all in the continuing proceedings, even evidence of fact. Delivering the lead judgment of the Court, the Master of the Rolls, Lord Woolf, reviewed the requirements laid on experts by the Civil Procedure Rules. He stressed the importance of parties and experts co-operating with the court to ensure that cases are dealt with justly and efficiently within the allotted timespan. Mr Isaac had demonstrated that he had no conception or understanding of his duties as an expert witness, which had been well established even before the coming into force of the new Rules. In view of his behaviour Judge Moseley had had no alternative but to debar him from giving evidence in the third-party action. Lord Woolf went on to say that in the light of subsequent developments it was obvious the judge had also been right to dismiss the third-party action altogether. It now seemed that the defendant s counterclaim against the builder would have to be entirely recast because of defects in the schedule prepared by Mr Isaac. The defendant had wisely consulted another expert, and the latter s report, while supporting his counterclaim against the builder, indicated that the sum overpaid was one-tenth of that asserted by Mr Isaac. Clearly, they could not both give evidence on the defendant s behalf in the same proceedings, and Mr Isaac was so discredited that it would be pointless for him to give any evidence at all in the main action. In these circumstances, it would be inappropriate to resurrect the defendant s claim against the architect. That left the defendant s appeal against Judge Moseley s order debarring Mr Isaac from giving expert evidence in the action brought by the builder. Although the parties had agreed terms under which they invited the Court to set aside this order, His Lordship was satisfied that it should not do so. Courts now have the power to control the evidence placed before them. When a judge has properly exercised his discretion in that regard, it would be wrong, even with the parties consent, to overrule him on appeal. With all grounds of the appeal rejected, the Court ordered that the costs of both the builder and the architect were to be paid by the defendant. Comment The Court of Appeal s judgment in Stevens -v- Gullis is important for the encouragement it gives judges at first instance to exercise their powers of case management robustly. It gives a clear indication that, provided they do so in accordance with the overriding objective of the Civil Procedure Rules, the Court will be reluctant to interfere with their decisions. For expert witnesses, too, the message is no less clear. Failure on their part to observe requirements laid down in either Part 35 of the Civil Procedure Rules or its associated Practice Direction could have potentially disastrous consequences for their clients. That, in turn, can only serve to give the client grounds on which the expert could be sued in negligence. 6 Footnotes 1 For a summary of Lord Woolf s initial recommendations concerning expert evidence, see Factsheet 3 in this series. 2 The full text of the Civil Procedure Rules may be consulted on the Ministry of Justice website at courts/procedure-rules/civil/rules. 3 For a discussion of the need expert witnesses have for professional indemnity insurance, see Factsheet 14 in this series. 4 Rule reads: (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. (Part 22 makes provision for a statement of truth) (2) Proceedings under this rule may be brought only: (a) by the Attorney General; or (b) with the permission of the court. 5 See The Times, October 6, See Factsheet 28 in this series for a discussion on an expert s liability in negligence. Disclaimer The information contained herein is supplied for general information purposes only and does not constitute professional advice. Neither J S Publications nor the authors accept responsibility for any loss that may arise from reliance on information contained herein. You should always consult a suitably qualified adviser on any specific problem or matter. J S Publications can be contacted at: PO Box 505, Newmarket, Suffolk CB8 7TF Tel: Fax: ukrew@jspubs.com