Part 35 EXPERTS AND ASSESSORS

Contents of this Part
Title	Number
Duty to restrict expert evidence	Rule 35.1
Interpretation and definitions	Rule 35.2
Experts – overriding duty to the court	Rule 35.3
Court’s power to restrict expert evidence	Rule 35.4
General requirement for expert evidence to be given in a written report	Rule 35.5
Written questions to experts	Rule 35.6
Court’s power to direct that evidence is to be given by a single joint expert	Rule 35.7
Instructions to a single joint expert	Rule 35.8
Power of court to direct a party to provide information	Rule 35.9
Contents of report	Rule 35.10
Use by one party of expert’s report disclosed by another	Rule 35.11
Discussions between experts	Rule 35.12
Consequence of failure to disclose expert’s report	Rule 35.13
Expert’s right to ask court for directions	Rule 35.14
Assessors	Rule 35.15

Duty to restrict expert evidence

35.1

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

This Rule is referred to in: Part 27 (27.2), PDP 29 (5.3), Baron v Lovell [53], Casey v Cartwright [18], Daniels v Walker [21], ES v NHS [30], [30], Stallwood v David [21].

Interpretation and definitions

35.2


(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)	‘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.

This Rule is referred to in: Hall v Simons [211].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5).

Text of Rule 35.2 substituted w/e from 1 October 2009.

Experts – overriding duty to the court

35.3


(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.

This Rule is referred to in: Chancery Guide - Chap 4 (4.8), Chancery Guide - Chap 8 (8.18), Factortame v Sec of State for Trade (costs) [64], Lucas v Barking [43].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5), (5).

"experts" substituted for "he" in Rule 35.3(2) w/e from 1 October 2009,
Text of Rule 35.3(1) substituted w/e from 1 October 2009.

Court’s power to restrict expert evidence

35.4


(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 identify –


(a)	the field in which expert evidence is required; 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).


(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. (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.

This Rule is referred to in: Part 44 (44.5), ES v NHS [35], Hajigeorgiou v Vasiliou [20], Home Office v Lownds [5], Leigh v Michelin Tyre Plc [6], Stallwood v David [19].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (23), (5), (5), (5), (5).

Rule 35.4(3A) and following text in parenthesis inserted after Rule 35.4(3) w/e from 1 October 2009,
Text "under this rule" omitted in Rule 35.4(3) w/e from 1 October 2009,
Text of Rule 35.4(2) replaced w/e from 1 October 2009,
Text of Rule 35.4(4) substituted w/e from 1 October 2009.

General requirement for expert evidence to be given in a written report

35.5


(1)	Expert evidence is to be given in a written report unless the court directs otherwise.


(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.

This Rule is referred to in: Baron v Lovell [53], Hajigeorgiou v Vasiliou [28], Jackson v Marley Davenport Ltd [14].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5).

Words "small claims track or the" inserted in Rule 35.5(2) w/e from 1 October 2009.

Written questions to experts

35.6

(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 35.7.

(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.

This Rule is referred to in: PDP 28 (3.7), PDP 29 (4.8), PDP 35 (7), QB Guide - Chapter 7 (7.9), Comm Ct Guide - Pt H (H2.19), Daniels v Walker [22], Stallwood v David [30].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5).

Paragraph (1) Rule 35.6 substituted w/e from 1 October 2009,
Words "in accordance with this rule" omitted from Rule 35.6(4)(a) w/e from 1 October 2009.

Court’s power to direct that evidence is to be given by a single joint expert

35.7


(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.

This Rule is referred to in: PDP 29 (4.13), PDR 52 (6), PDC 29 (6), Calden v Nunn [32], Carlson v Townsend [19], Voaden v Champion [125].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5), (5).

Whole of Rule 35.7 substituted w/e from 1 October 2009.

Instructions to a single joint expert

35.8


(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.


(5)	Unless the court otherwise directs, the relevant parties are jointly and severally liable^(GL) for the payment of the expert’s fees and expenses.

This Rule is referred to in: Carlson v Townsend [19].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5), (5), (5), (5).

"relevant" substituted for "instructing" in Rule 35.8(5) w/e from 1 October 2009,
Text of Rule 35.8(2) substituted w/e from 1 October 2009,
Words "any relevant" substituted for "each instructing" in Rule 35.8(1) w/e from 1 October 2009,
Words "some or all of the relevant" substituted for "the instructing" Rule 35.8(4)(b) w/e from 1 October 2009.

Power of court to direct a party to provide information

35.9

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.

This Rule is referred to in: PDP 35 (4).

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5).

"another opparty" substituted for "the other party" in Rule 35.9 w/e from 1 October 2009.

Contents of report

35.10


(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^(GL) 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.

This Rule is referred to in: Part 31 (31.14), (31.14), Comm Ct Guide - Pt H (H2.21), (H2.6), Merc Court Guide (11.2), Expandable Ltd v Rubin [14], [14], [36], [42], [42], [42], [42], Hajigeorgiou v Vasiliou [28], [28], Jackson v Marley Davenport Ltd [14], [14], [8], Lucas v Barking [24], [36], [36], [42], [42], SmithKline v Generics [27], Stevens v Gullis [24].

This Rule is referred to in the following SIs: Civil Procedure (Amendment No. 5) Rules 2001 (20), Civil Procedure (Amendment) Rules 2009 (5).

Refererence to PD 35 substituted for "the relevant PD" in Rule 35.10(1) w/e from 1 October 2009,
Text of Rule 35.10(2) substituted w/e from 1 October 2009.

Use by one party of expert’s report disclosed by another

35.11

Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.

This Rule is referred to in: Jones v T Mobile [27].

Discussions between experts

35.12

(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.


(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.

This Rule is referred to in: PDP 28 (3.9), (3.9), PDP 29 (4.10), (4.10), Comm Ct Guide - Pt H (H2.14), Merc Court Guide (4), Baron v Lovell [53], Calden v Nunn [44], Stallwood v David [18].

This Rule is referred to in the following SIs: Civil Procedure (Amendment No. 5) Rules 2001 (21), Civil Procedure (Amendment) Rules 2009 (5).

Rule 35.12 amended w/e from 25 March 2002,
Text of Rule 35.12(3) substituted w/e from 1 October 2009.

Consequence of failure to disclose expert’s report

35.13

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.

This Rule is referred to in: Jackson v Marley Davenport Ltd [11], [17].

Expert’s right to ask court for directions

35.14


(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.

This Rule is referred to in: Chancery Guide - Chap 4 (4.19), (4.19), Expandable Ltd v Rubin [34], Lucas v Barking [25], [25].

This Rule is referred to in the following SIs: Civil Procedure (Amendment No. 5) Rules 2001 (22), Civil Procedure (Amendment) Rules 2009 (5).

Rule 35.14 amended w/e from 25 March 2002,
Text of Rule 35.14(1) and (2) substituted w/e from 1 October 2009.

Assessors

35.15


(1)	This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981¹ or section 63 of the County Courts Act 1984²as 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.

This Rule is referred to in: PDP 28 (3.11), PDP 29 (4.13), PDP 35 (10.1), PDP 49e (11.3), PDP 63 (5.10), PDP 69 (9.5), proceedings_relating_discrimination (3), proceedings_under_enactments (3), Chancery Guide - Chap 4 (4.20), QB Guide - Chapter 7 (7.9), Comm Ct Guide - Pt N (N14).

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2009 (5).

Whole of Rule 35.15 substituted w/e from 1 October 2009.

Footnotes

1. 1981 c. 54.

2. 1984 c. 28.