Expert Evidence part 5
=One of the problems which used to occur with expert evidence in civil proceedings was it being produced very late in the day. The need to have permission to call an expert under CPR 35.4 largely resolved this problem. When making the order permitting expert evidence there will inevitably be case management directions dealing with how and where the report is to be provided and disclosed.
CPR 35.13 provides that if the report is not disclosed then it may not be used at trial or the expert called to give evidence unless the court gives permission. There is however a further aspect to disclosure. Before you have disclosed a report, there is no obligation to rely upon it. So if you get an expert whose evidence is unhelpful then you do not need to call the expert. However once you have disclosed the expert report then any party may use that experts report as evidence at the trial (CPR 35.11). Therefore if the report is unhelpful decisions about not using it normally have to be made before disclosing it. If you wait and see then the other side might end up using the report.
When reports are received each party has a right under CPR 35.6 to put written questions to any expert acting on behalf of any other party (or a single joint expert if one has been appointed). Written questions are a one off opportunity which has to be exercised within 28 days and solely for the purpose of clarification of the report. If however the court gives permission or the other party agrees questions can be wider and addressed to other matters. A failure by the expert to answer the questions can lead to sanctions being imposed by the court, including preventing the expert evidence being relied upon.
The court has power pursuant to CPR 35.12 to order discussions to take place between the experts with a view to them identifying and discussing the expert issues and if possible to reach agreed opinions. The court will frequently direct that the experts must prepare a statement showing those issues on which they agree and those on which they disagree. Normally they are directed to summarise their reasons for disagreement. This is a useful discipline and a checklist for both parties and the court as regards what remains in issue and why.
CPR 35.12 provides that the content of the discussion between the expert shall not be referred to at the trial unless the parties agree. It also provides that where experts reach agreement on issues during their discussions the agreement shall not bind the parties unless the parties expressly agreed to be bound by the agreement. That means firstly that the experts (like in any without prejudice meeting) are free in general terms to say what they like without anyone being allowed to quote such matters back at them in court. (Articles on privilege will deal with how the without prejudice privilege can be lost). Secondly that anything they agree does not constitute formal agreement as between the parties. Of course in practice it is very difficult for a party to overturn something which its own expert has agreed to, but it would still have the opportunity to try unless it is agreeing to be bound by the experts agreement.