Practice Direction 35: Instructing an Expert Witness in the UK

Practice Direction 35 (PD35) sets out the detailed procedural requirements for expert evidence in civil cases in England and Wales, complementing Part 35 of the Civil Procedure Rules (CPR). For solicitors, understanding and adhering to PD35 is fundamental when instructing an expert witness, as it directly impacts the admissibility and weight of their evidence in court.

The Role of Practice Direction 35 in Expert Evidence

CPR Part 35 establishes the overarching principles for expert evidence, stating that it should be restricted to what is reasonably required to resolve the proceedings. Practice Direction 35 then expands on these principles, providing practical guidance on numerous aspects, from the expert's duties to the format of their reports. Its primary purpose is to ensure that expert evidence is independent, objective, and presented clearly, assisting the court in its decision-making process.

Overarching Duties of an Expert Witness

One of the most critical aspects emphasised by PD35 is the expert's overriding duty to the court. This duty takes precedence over any obligation to the instructing party, a principle that solicitors must stress to any expert they instruct. The expert must remain independent and impartial, providing an objective opinion based on their expertise, regardless of whether that opinion supports their instructing party's case.

Similarly, in criminal proceedings, while there isn't a direct equivalent to CPR Part 35 or PD35, the Criminal Procedure Rules (CrimPR) Part 19 dictates similar principles regarding expert evidence. Expert witnesses in criminal cases also owe a paramount duty to the court and must comply with the requirements of CrimPR 19, including declaring the basis of their opinions and disclosing any limitations. Solicitors working in criminal law must ensure their instructed experts are fully aware of these obligations.

Key Considerations Before Instructing an Expert Witness

Before formally instructing an expert, solicitors should undertake a thorough preliminary assessment to ensure the expert's suitability and the necessity of their evidence. This upfront work can save time and costs later in the proceedings.

Identifying the Right Expertise

The first step is to precisely define the scope of expertise required. What specific technical or scientific questions need answers? PD35 reinforces that experts should only give evidence on matters within their specialised knowledge. Solicitors should consider:

• The specific technical area in dispute.
• The level of experience required (e.g., a leading academic or a hands-on practitioner).
• Any sub-specialisms that might be relevant.
• The expert's previous experience in court, if applicable.

Proportionality and Costs

CPR Part 35.1 implicitly, and PD35 directly, underscores the importance of proportionality. Expert evidence can be costly, and the court will scrutinise whether the expense incurred is proportionate to the value and complexity of the case. Solicitors have a responsibility to:

• Obtain fee estimates from potential experts.
• Consider whether a single joint expert might be appropriate to save costs, especially in lower-value cases.
• Ensure the scope of work for the expert is clearly defined to prevent unnecessary work and escalating fees.

The Instruction Letter

A clear, comprehensive instruction letter is critical. PD35 Appendix 1 provides guidance on the content of such a letter. It should include:

• Background to the case: A concise summary of the factual and legal issues.
• The expert's duties: A clear reminder of the expert's overriding duty to the court.
• The questions for the expert: These must be precise, unambiguous, and within the expert's area of expertise.
• Relevant documents: A list of all documents provided to the expert, ensuring they are complete and organised.
• Timeline: Clear deadlines for the expert's report, discussions, and availability for court. This is particularly important for urgent cases where solicitors need to find an expert quickly.
• Fees: Agreement on the expert's fees and payment terms.

Solicitors should retain a copy of all instructions to the expert. Any subsequent alterations to instructions must also be documented and, if necessary, disclosed to other parties or the court.

Expert Reports and Discussions

PD35 provides detailed requirements for the content and format of expert reports and governs the process of discussions between experts.

Content of the Expert Report

An expert report must be compliant with PD35, ensuring it is prepared in a format that is clear, concise, and understandable. Key elements required by PD35.3 are:

1. Identity of the expert: Including qualifications and experience.
2. Statement of facts: Clearly identifying the facts and assumptions upon which the opinion is based.
3. Summary of instructions: Detailing the questions the expert was asked to address.
4. Reasoning: Explaining the process by which the expert arrived at their opinion.
5. Opinion: The expert's clear, unambiguous opinion on the issues within their expertise.
6. Declaration: A statement that the expert understands their overriding duty to the court.
7. Statement of truth: A specific statement that the expert believes the facts stated in the report are true and that the opinions expressed are their true and complete professional opinions.

Failure to comply with these requirements can lead to the report being rejected or its weight diminished by the court.

Discussions Between Experts (Expert Meetings)

PD35.9 outlines the process for discussions between experts, which are designed to identify areas of agreement and disagreement. Solicitors should:

• Agree the agenda: Ensure all relevant issues are covered, but avoid introducing new questions without court permission.
• Not lead the expert: Solicitors generally do not attend expert discussions, but can advise their expert beforehand. The discussion itself must be led by the experts to maintain their independence.
• Draft a Joint Statement: Following the discussion, experts must prepare a joint statement outlining agreed facts, issues, and specific areas of disagreement, along with brief reasons for each disagreement. This statement is then disclosed to the court and relied upon at trial.

Dealing with Urgent Instructions and Short Deadlines

In many contentious matters, solicitors operate under tight deadlines, often requiring an expert witness to be instructed urgently. While PD35 does not specifically address 'urgent' instructions, its principles still apply rigorously.

When faced with a short timeframe for instructing an expert, solicitors must act efficiently. This includes rapidly defining the scope, identifying potentially available experts, and providing clear, comprehensive instructions without delay. It is crucial to manage the expert's expectations regarding the deadline and to agree on an expedited fee structure if necessary.

Services like Urgent Expert Witness specialise in connecting solicitors with qualified experts on short notice, understanding the time pressures associated with court deadlines. When time is critical, utilising such a service can be invaluable in ensuring PD35 compliance while meeting judicial directions. Find out more about our services or submit a confidential request today.

Compliance and Sanctions

Adherence to Practice Direction 35 is not optional; it is a mandatory requirement for expert evidence in civil proceedings. The consequences of non-compliance can be severe, impacting both the case and the instructing solicitor.

Potential Sanctions for Non-Compliance

The court has broad powers to manage expert evidence and can impose various sanctions, including:

• Exclusion of evidence: The court may refuse to allow an expert's evidence to be relied upon.
• Delay penalties: Adjournments may be granted, with associated cost orders against the non-compliant party.
• Cost sanctions: The non-compliant party may be ordered to pay the costs of the other side, even if successful in the overall case.
• Wasted costs orders: In serious cases of non-compliance by the solicitor, the court may make a wasted costs order against the solicitor personally.

For an expert, serious non-compliance can lead to their evidence being disregarded entirely, and in extreme cases, they may be subject to commentary from the court that could affect their professional reputation or ability to act as an expert in the future. The Judiciary website offers further guidance to remind experts of their duties.

FAQ

What is the primary purpose of Practice Direction 35?

Practice Direction 35 provides detailed procedural guidance for expert evidence in civil cases, ensuring experts understand their duties to the court, and that their reports are admissible, clear, and objective.

Must an expert always be jointly instructed by all parties?

No, each party can instruct their own expert. However, the court has the power to direct that a single joint expert (SJE) be instructed where appropriate, particularly for reasons of proportionality and cost-saving, as outlined in CPR 35.7.

What happens if an expert changes their opinion after submitting a report?

If an expert changes their opinion, they must immediately inform the party who instructed them, and that party must promptly notify all other parties and the court. A supplementary report should then be prepared explaining the change and its reasons, adhering to PD35 requirements.

Can a solicitor discuss the expert's report with them before submission?

Yes, a solicitor can discuss the report with their chosen expert to ensure clarity and address any ambiguities. However, the solicitor must not seek to influence the expert's independent opinion or tamper with the substance of the expert's conclusions. The final report must reflect the expert's independent professional opinion.

Strict adherence to Practice Direction 35 is non-negotiable for solicitors instructing an expert witness. From initial identification to the final report and potential court appearance, every step must be handled with precision and an understanding of the expert's overriding duty to the court. Ensuring compliance safeguards your client's interests and maintains the integrity of the litigation process. When you need to find an expert who understands these nuances, particularly under pressure, do not hesitate to submit a confidential request to Urgent Expert Witness.