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| 4.1 |
As part of its management of a case, the court will give directions about the disclosure of documents and any expert evidence. Attention is drawn to paragraphs 3.8 to 3.10 above. An application for specific disclosure should be made by a specific Part 23 application and is not to be regarded as a matter routinely dealt with at a case management conference.
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| 4.2 |
Under the CPR, the normal order for disclosure is an order for standard disclosure, which requires disclosure of:
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(1) |
a party's own documents - that is, the documents on which a party relies;
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(2) |
adverse documents - that is, documents which adversely affect his or her own or another party's case or support another party's case; and
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(3) |
required documents - that is, documents which a practice direction requires him or her to disclose.
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| 4.3 |
The court may make an order for specific disclosure going beyond the limits of standard disclosure if it is satisfied that standard disclosure is inadequate.
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| 4.4 |
The court will not make such an order readily. One of the clear principles underlying the CPR is that the burden and cost of disclosure should be reduced. The court will, therefore, seek to ensure that any specific disclosure ordered is proportionate in the sense that the cost of such disclosure does not outweigh the benefits to be obtained from such disclosure. The court will, accordingly, seek to tailor the order for disclosure to the requirements of the particular case. The financial position of the parties, the importance of the case and the complexity of the issues will be taken into account when considering whether more than standard disclosure should be ordered.
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| 4.5 |
If specific disclosure is sought, the parties should give careful thought to the ways in which such disclosure can be limited, for example by requiring disclosure in stages or by requiring disclosure simply of sufficient documents to show a specified matter and so on. They should also consider whether the need for disclosure could be avoided by requiring a party to provide information under Part 18.
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| 4.6 |
Part 35 contains particular provisions designed to limit the amount of expert evidence to be placed before the court and to reinforce the obligation of impartiality which is imposed upon an expert witness. The key question now in relation to expert evidence is the question as to what added value such evidence will provide to the court in its determination of a given case.
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| 4.7 |
Fundamentally, Part 35 states that expert evidence must be restricted to what is reasonably required to resolve the proceedings and makes provision for the court to direct that expert evidence is given by a single joint expert. The parties should consider from the outset of the proceedings whether appointment of a single joint expert is appropriate.
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| 4.8 |
It is the duty of an expert to help the court on the matters within his or her expertise; this duty overrides any obligation to the person from whom the expert has received instructions or by whom he or she is paid (rule 35.3). Attention is drawn to PD 35.
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| 4.9 |
In fulfilment of this duty, an expert must for instance make it clear if a particular question or issue falls outside his or her expertise or he or she considers that insufficient data are available on which to express an opinion. Any material change of view by an expert should be communicated in writing (through legal representatives) to the other parties without delay, and when appropriate to the court.
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| 4.10 |
The introduction to PD 35 states that, where possible, matters requiring expert evidence should be dealt with by a single expert.
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| 4.11 |
In very many cases it is possible for the question of expert evidence to be dealt with by a single expert. Single experts are, for example, often appropriate to deal with questions of quantum in cases where the primary issues are as to liability. Likewise, where expert evidence is required in order to acquaint the court with matters of expert fact, as opposed to opinion, a single expert will usually be appropriate. There remains, however, a substantial body of cases where liability will turn upon expert opinion evidence or where quantum is a primary issue and where it will be appropriate for the parties to instruct their own experts. For example, in cases where the issue for determination is as to whether a party acted in accordance with proper professional standards, it will often be of value to the court to hear the opinions of more than one expert as to the proper standard in order that the court becomes acquainted with the range of views existing upon the question and in order that the evidence can be tested in cross-examination.
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| 4.12 |
It is not necessarily a sufficient objection to the making by the court of an order for a single joint expert that the parties have already appointed their own experts. An order for a single joint expert does not prevent a party from having his or her own expert to advise him or her, but he or she may well be unable to recover the cost of employing his or her own expert from the other party. The duty of an expert who is called to give evidence is to help the court.
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| 4.13 |
When the use of a single joint expert is contemplated the court will expect the parties to co-operate in developing, and agreeing to the greatest possible extent, terms of reference for the expert. In most cases the terms of reference will (in particular) detail what the expert is asked to do, identify any documentary material he or she is asked to consider and specify any assumptions he or she is asked to make.
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| 4.14 |
In an appropriate case the court will direct that experts' reports are delivered sequentially. Sequential reports may, for example, be appropriate if the service of the first expert's report would help to define and limit the issues on which such evidence may be relevant.
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| 4.15 |
The court will normally direct discussion between experts before trial. Sometimes it may be useful for there to be further discussions during the trial itself. The purpose of these discussions is to give the experts the opportunity:
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(1) |
to discuss the expert issues; and
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(2) |
to identify the expert issues on which they share the same opinion and those on which there remains a difference of opinion between them (and what that difference is).
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| 4.16 |
Unless the court otherwise directs, the procedure to be adopted at these discussions is a matter for the experts. It may be sufficient if the discussion takes place by telephone.
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| 4.17 |
Parties must not seek to restrict their expert's participation in any discussion directed by the court, but they are not bound by any agreement on any issue reached by their expert unless they expressly so agree.
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| 4.18 |
It is emphasised that this procedure is only for the purpose (generally) of seeking clarification of an expert's report where the other party is unable to understand it. Written questions going beyond this can only be put with the agreement of the parties or with the permission of the court. The procedure of putting written questions to experts is not intended to interfere with the procedure for an exchange of professional opinion in discussions between experts or to inhibit that exchange of professional opinion. If questions that are oppressive in number or content are put or questions are put without permission for any purpose other than clarification of an expert's report, the court will not hesitate to disallow the questions and to make an appropriate order for costs against the party putting them.
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| 4.19 |
An expert may file with the court a written request for directions to assist him or her in carrying out his or her function as expert: rule 35.14. Copies of any such request must be provided to the parties in accordance with rule 35.14(2) save where the court orders otherwise. The expert should guard against accidentally informing the court about, or about matters connected with, communications or potential communications between the parties that are without prejudice or privileged. The expert may properly be privy to the content of these communications because he or she has been asked to assist the party instructing him or her to evaluate them.
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| 4.20 |
Under rule 35.15 the court may appoint an assessor to assist it in relation to any matter in which the assessor has skill and experience. The report of the assessor is made available to the parties. The remuneration of the assessor is determined by the court and forms part of the costs of the proceedings.
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