CPR 35 CONSULTATION PAPER

12 July 2007 Item 9 CIVIL LITIGATION COMMITTEE 12 JULY 2007 Classification Public Purpose For decision CPR 35 CONSULTATION PAPER The Issues The Committee needs to decide whether it wishes to apply for additional resources to deal with a response to this consultation on CPR 35 from the Civil Justice Council Expert s Committee. The Civil Litigation Committee can alternatively elect to prepare a response themselves. Financial and Resourcing implications There will be financial and resourcing implications should the Committee wish to apply for additional funding to prepare a response to this. Equality and Diversity implications There are no equality and diversity implications. Consultation This paper was prepared for the Civil Litigation Committee. Annex 1 Annex 2 Annex 2A Annex2B Letter from His Honour Judge Nic Madge Consultation paper Letter to consultees Responses to the letter on Single Joint Expert Guidance Policy Director Evlynne Gilvarry, Director of Representation and Legal Author Ben Arrowsmith, Committee Secretary Date of report 4 July 2007 1

ANNEX 1 Harrow Crown Court, Hailsham Drive, Harrow, HA1 4TU. 0208 424 2294 His Honour Judge Nic Madge Introduction I am writing to you on behalf of the Civil Justice Council s Experts Committee which I chair. The Ministry of Justice (formerly the Department for Constitutional Affairs) and the Civil Procedure Rule Committee are committed to keeping the Civil Procedure Rules under review. They have embarked on a systematic series of comprehensive reviews of key Parts of the CPR. The next Part to be reviewed will be Part 35 which as you are aware, deals with Experts and Assessors. The Ministry of Justice has asked the Experts Committee to consider what changes could be made to strengthen Part 35, its Practice Direction and the Protocol for the Instruction of Experts to give evidence in civil claims. Before discussing these provisions in detail, and submitting our proposals to the Civil Procedure Rules Committee, we have decided to carry out a consultation exercise. In view of this I would be very grateful if you could let us have your views and comments on the working of CPR35 and, in particular, your answers to the questions set out below by 31 July 2007. Please could you send your response to His Honour Judge Nic Madge Harrow Crown Court, Hailsham Drive, Harrow, HA1 4TU. Or Email nmadge@lix.compulink.co.uk It would be particularly helpful to have an electronic version. General 1. Do you consider that CPR Part 35, PD 35 and the Protocol are, in general, working satisfactorily? Apart from the areas covered below, are there any changes that you would like to see to CPR Part 35, PD 35 or the Protocol? Is there any need to vary the definition of expert in CPR 35.2? Single Joint Experts 2. Last year we consulted in relation to SJEs. After considering responses and further discussions we proposed an amendment to PD35. That 2

proposal is attached to this letter. The CPR Rules Committee decided to delay consideration of the proposed amendment pending the general review of CPR 35. Do you have any comments in relation to SJEs or the proposed amendment? Agenda 3. Agenda for experts meetings can play a significant role in experts meetings. It has been suggested that there are relatively few problems in agreeing and following agenda in cases involving construction and surveyors, but that there have been problems in agreeing and following agenda for meetings in medical cases. Do you agree? Are there any changes that you would like to see to CPR Part 35, PD 35 or the Protocol? Questions to experts 4. CPR 35.6 provides that written questions may be put to experts, but that they must be for the purpose only of clarification of the report. Is this criterion still appropriate? Are questions to experts being put in a disproportionate way, simply as a first bite of cross-examination? If they are, is this wrong? Alternatively, would a widening of the criterion be appropriate? Enforcement 5. A balance has to be struck between the need for compliance with orders and the CPRs on the one hand and flexibility, proportionality and justice on the other hand. Some people have argued that if judges took a stricter line when there has been non-compliance with an order or the CPRs (e.g. by refusing to allow a party to rely upon an expert s report), parties would be more likely to comply with orders. Do you agree that there is a problem? Are there any changes that you would like to see to CPR Part 35, PD 35 or the Protocol? Should there be a provision that an expert s report which does not comply with CPR 35 or PD 35 should not be admitted as evidence without the permission of a judge? Protocol 6. How is the Protocol for the Instruction of Experts to give evidence in civil claims working? Do you consider that any amendments are needed? Low speed impact whip lash claims 7. Over the last year it has been said that there has been an increasing number of cases in which defendants insurers have argued that the claimant could not have suffered whip lash because of the low speed of the vehicles on impact. Do you consider that any changes to CPR Part 35, PD 35 or the Protocol are necessary as a result of this increase? Expert s statement of truth 8. Is there any need to vary the form of the expert s statement of truth? (PD35 para 2.4) I look forward to hearing from you. 3

ANNEX 2 Experts Committee The decision to allow the evidence of single or separate experts 23 rd January 2006 The Experts Committee of the Civil Justice Council includes a circuit judge, a district judge, a barrister representing the Bar Council, a solicitor nominated by the Law Society s Civil Litigation Committee, representatives from APIL, FOIL, the Expert Witness Institute the Academy of Experts and the Council for the Registration of Forensic Practitioners together with employees of the Legal Services Commission and the DCA. All have significant experience of civil litigation involving the use of experts. We approach the subject from very different perspectives. We have discussed the apparent inconsistency of courts when deciding on whether to allow the evidence of single or separate experts at a number of meetings. Our discussions started with anecdotal evidence of inconsistency between different levels of judges and between judges in different parts of the country. It is inevitable that there are differences of approach. The Civil Procedure Rules give a discretion which is designed to be exercised flexibly. Different cases require different approaches. What may be proportionate in one case may be disproportionate in another case. However our members talked about uncertainty as to what was likely to be ordered because of differences of approach by judges and of some courts where separate experts would never be allowed in a particular discipline but other courts where they would inevitably be allowed in the same discipline. It was said that this results in some solicitors engaging in forum shopping. Notwithstanding decisions in Daniels v Walker [2000] 1 WLR 1382 and Peet v Mid Kent Healthcare NHS Trust [2001] EWCA Civ 1703, it was felt that there was relatively little guidance from the Court of Appeal. Others said that the guidance given in those cases was not uniformly followed. At our meeting on 8th November 2005 we discussed a paper on the subject written by Mark Harvey, a solicitor with expertise in personal injury litigation and Robin Oppenheim, a barrister with experience in clinical negligence litigation. The paper included a proposed set of criteria which it was suggested should be considered by courts deciding when whether to appoint separate or single experts. These were drawn from existing case law in this area and were designed to improve the consistency of decision-making according to existing law and practice. 4

As a result of that discussion we consulted on a modified version of those criteria, asking three questions: 1. Do you agree that there are inconsistencies between different courts and different judges when giving permission to call expert evidence? 2. Would some guidance be helpful? 3. If you think that some guidance would be helpful, do you have any comments on our suggested considerations? A copy of the consultation letter is annexed. We received responses from FOIL, APIL, the London Solicitors Litigation Association, the Association of District Judges, the Clinical Disputes Forum, the Law Society, and a number of Specialist Bar Associations including the Technology and Construction Bar Association, the Personal Injury Bar Association, the London Common Law and Commercial Bar Association and Falcon Chambers. A summary of the responses is annexed to this paper. A majority of consultees felt that there was more inconsistency than is desirable. Several consultees indicated that they did not think that guidance would be helpful, but detailed consideration of a number of these responses indicated that the authors were in fact trying to go behind the Woolf reforms and re-argue the whole CPR approach to expert evidence. At our meeting on 12th January 2006, having regard to these responses, we concluded that it would be helpful for the Practice Direction to CPR Part 35 to be amended to include a number of non-exhaustive considerations that courts should take into account when deciding whether to give permission for the evidence of single or separate experts, based on existing practice and case law without seeking to modify established practice. Having regard to the responses of the consultees, we modified the criteria so that they take the form of a proposed amendment to PD 35 para 6 which we set out below. We ask that this be approved by the Civil Justice Council and sent to the Lord Chancellor with a request that it be submitted (with this brief paper and the summary of the consultation responses) for consideration by the CPR Rules Committee. Proposed amendment to PD35, para 6, by inserting before the existing material 6.1 When a party seeks permission to call an expert or put in evidence an expert s report, the party and the court shall consider whether or not it is appropriate for such evidence to be given by a single joint expert within the meaning of CPR 35.7. 6.2 Where a claim has been allocated to the small claims track or the fast track, there is a presumption that, if permission is given for expert evidence, it will only be given for evidence from one expert on a particular issue. 6.3 Where a claim has been allocated to the multi track, the court, when considering whether to give permission for the parties to call experts or put in 5

evidence experts reports from separate experts or single experts, shall take into account all the circumstances and in particular: a) The value of the claim and whether or not it is proportionate to have separate experts for each party on a particular issue with reference to the amount at stake and the importance to the parties and the complexity of the issue; b) Whether the instruction of a single expert is likely to assist the parties to resolve the issue more speedily and in a more cost-effective way than separately instructed experts; c) Whether expert evidence is to be given on an issue of liability (including causation) or quantum; d) Whether there is likely to be a range of expert opinion on which it may be difficult for a single joint expert to express an opinion, or whether the expert evidence falls within a substantially established area of knowledge which is likely to be the subject of agreement; e) Whether a party has already instructed his own expert on the issue in question and whether or not that was done in compliance with any relevant pre-action protocol; f) If one party has already instructed his own expert, whether questions put in accordance with CPR 35..6 will resolve the need for the other party to have his own expert g) Whether the nature of the expert evidence required is such that questions put to a single expert may not conclusively deal with all issues that may require testing prior to trial; h) Whether the nature of the expert evidence required is such that a conference may be required with the expert and other witnesses which may make instruction of a single expert impractical; i) Whether there are any issues concerning legal professional privilege which make the instruction of a single expert impractical; and j) If a single expert is appointed, whether there a significant risk that a party will instruct his own shadow expert, and, if so, the implications for costs, the likelihood of resolution of the issue and the use of court resources. 6.4 [existing para 6] Nic Madge, Chair of CJC Experts Committee 23 January 2006 6

ANNEX 2A Letter to consultees 16 th November 2005 As you are no doubt aware, the Civil Justice Council (CJC) is a non-departmental public body sponsored by the Department of Constitutional Affairs. Among other things it keeps the civil justice system under review and refers proposals for changes in the civil justice system to the Lord Chancellor. The CJC has a number of committees of which one is the Experts Committee. The CJC Experts Committee is concerned that there appear to be inconsistencies between different courts and judges as to the appointment of single joint experts ( SJEs see CPR 35.7) and separate experts. There is anecdotal evidence that this results in solicitors issuing proceedings in particular courts where judges are known to have particular approaches to the question and to unnecessary wrangling between solicitors about the appointment of experts. To some extent differences in approach are inevitable because the CPRs are designed to be flexible, but in discussions, we have come to the conclusion that it would be helpful for more guidance to be given. Although it would be wrong to impose a straight jacket on courts and solicitors, we consider that it would be helpful for there to be some non-exhaustive considerations which courts should take into account when permission is given to call expert evidence. We have provisionally identified the following questions which are relevant to the instruction of experts and which are among the factors which should be taken into account:- Is the issue for which expert evidence is sought a liability or quantification of damages issue? Is the issue on which expert evidence is sought one on which there is likely to be a range of opinion which may be difficult for a SJE to express such a range of opinion which might be held on the issue in question by other experts? Is the issue on which expert evidence is sought one which falls within a substantially established area of knowledge where it is not necessary to sample a range of opinion and where such evidence is likely to be the subject of agreement? Has one of the parties or both parties instructed their own expert on the issue in question? Was this done in compliance with the relevant pre-action protocol? If one party has already instructed their own expert, will part 35 questions resolve the need for the other party to have their own expert? Is the nature of the expert evidence required such that Part 35 questions of a SJE may not conclusively deal with all issues that may require testing prior to trial? 7

Is the nature of the expert evidence required such that a conference may be required with the expert, lay and other expert witnesses which make single joint instruction of the expert in question impractical? Are there any issues concerning legal professional privilege which make single joint instruction of the expert in question impractical? If a SJE is appointed, is there a significant risk that one or other of the parties will instruct their own shadow expert? If so, what are the implications for costs, likelihood of resolution of the litigation and the use of court resources? Will the instruction of a SJE assist the parties to resolve the litigation more speedily and in a more cost-effective way than separately instructed experts? Is it proportionate to have separate experts for each party on the issue for which expert evidence is sought by reference to the amount at stake, importance of the issue to the parties and all the circumstances of the case? [see gloss on proportionality and small value claims in Layland v Fairview [2002] EWHC 1350 (Ch) at [29-31]] Before we consider the position further, we should be grateful for your views on the following questions:- 1. Do you agree that there are inconsistencies between different courts and different judges when giving permission to call expert evidence? 2. Would some guidance be helpful? 3. If you think that some guidance would be helpful, do you have any comments on our suggested considerations? It would be helpful if you could reply to this letter by 23 rd December 2005. You can either reply by email at Monique.deletant@cjc.gsi.gov.uk or to the Civil Justice Council at the address above. Yours sincerely, HHJ Nic Madge Chair, Experts Committee 8

ANNEX 2B Responses to the letter on Single Joint Expert Guidance HHJ Nic Madge, Chair of the Experts committee, wrote to nine representative bodies in November, to ask their views on the following questions. 4. Do you agree that there are inconsistencies between different courts and different judges when giving permission to call expert evidence? 5. Would some guidance be helpful? 6. If you think that some guidance would be helpful, do you have any comments on our suggested considerations? Of the bodies that were contacted the following responded: APIL FOIL Bar Council (in the form of individual committee submissions) Association of District Judges Clinical Disputes Forum Law Society I have not yet received responses from MASS, Council of Circuit Judges and LSLA. Views: There are a wide range of views and the responses to the three questions have been summarised in table format below. Suggestions seem to differ between defendant and claimant solicitors with both stating that the pendulum has swung too far in favour of the opposing side. 9

Body Question 1: Are there inconsistencies? Question 2: Would guidance be Question 3: Suggestions? helpful? APIL Yes No need for further guidance The protocol could form the basis of a template or pro forma to be considered by the judge prior to appointment of an expert. Association of District Judges Not aware of any Guidance is not necessary First consideration should be whether any expert evidence is necessary Bar Council: Falcon Chambers Yes Yes Please see response for further suggestions Bar Council: London Common Law and Commercial Bar Assoc Not aware of any - but main divergence in QB Masters Not clear Primary considerations are case value, importance of disputed issue and the subject matter of expert evidence. Bar Council: Personal Injury Bar Assoc Does not appear to be great inconsistency between trial centres Discrepancy between level of judge No need for further guidance Bar Council: Technology and Construction Bar Assoc Not surprised inconsistencies exist although approach is different in TCC. Guidance would seem to be helpful List quite long, could it be shortened. Worked case studies where SJE s might be appropriate? CDF There are inconsistencies General guidance would be helpful Concern that there should not be further constraint in use of experts - please see his letter for individual suggestions FOIL Yes Yes although not necessarily helpful if relates to expert evidence alone Could suggest when discarded evidence could be disclosed. - please see response for further suggestions Law Society Yes Yes The criteria stated could be acceptable provided they are supportive of the overriding objective. Costs/court availability should not be perceived as a pretext for limiting or forbidding expert evidence. Detailed comments: 10

APIL: Current principles and guidance in CPR and case precedents should be restated. Proportionality should be based on what is value, complexity and importance of the issue Defendants granted leave to seek an additional expert report without specifying any objections to the first belief that similar requests from claimants not granted. Bar Council; Should be no presumption in favour of SJE rather than separate expert witnesses Only suitable where claim is of low value, differences between parties not great or where issue of expert evidence is minor element of claim Equality of arms Should assume parties realise cost and time implications of course Court should be cautious where issue is about liability Established area of knowledge is not a helpful guideline Experts who have been instructed should be retained Compliance with pre action protocol not a material consideration. Never fair to prevent one party from calling own expert once other party has already instructed an expert. Part 35 questions would rarely be conclusive in dealing with issues. Conference with an expert should militate against appointment of SJE Parties deprived of opportunity of having a candid and frank exchange in present of expert where a SJE is appointed. Court cannot prevent a shadow expert being appointed. Implication of costs is important but court time saving should not be placed above fair resolution of claim. CDF Highly unlikely there will ever be a place of SJE in deciding liability issues. Close scrutiny needed if a SJE is to be used may not give full range of opinions How is lawyer to know whether issues fall within a substantially established area of knowledge? The use of a SJE in a privileged client conference is impossible. It is difficult to discuss a range of opinions with a SJE as they may reveal concerns to the opposing side about weaknesses and strengths in a case. Shadow experts on the defence side are almost inevitable. Do not believe that SJE are always cost effective. Concerned that there should not be a further constraint in the use of experts. FOIL No mention of issues of causation explicitly in document. 11

Guidance could help level the playing field and suggest when discarded evidence should be disclosed. Discretion for each case Stepped approach Continuity of case management with same DJ used Local practice directions still seem to remain TCC management of expert evidence is preferable to county court. Consideration should be given to: position pre protocol if expert has been nominated by default because of protocol breach, defendant should not be penalised. Complexity and value should be taken into consideration Experts discipline needs to be considered eg: psychologist or psychiatrist At allocation parties could provide better information in relation to need for alternative expert evidence. Even lower value claims sometimes require alternative expert evidence to avoid unreasonable settlements Disconnection between Part 35 and protocol. The process under the PAP by which an expert is chosen by the claimant and the defendant does not object and /or agree does not result in SJE. Whether orders by judges should name the discipline or both the expert and the discipline. Monique Deletant 9 th November 2005 12