What Makes an Expert Witness CPR 35 Compliant?

An expert witness is CPR 35 compliant when they adhere strictly to the rules and overriding objective set out in Part 35 of the Civil Procedure Rules (CPR), which govern expert evidence in England and Wales. This involves understanding their primary duty to the court, ensuring their reports meet specific formal and substantive requirements, and maintaining independence and objectivity.

The Overriding Duty to the Court

The fundamental principle underlying CPR Part 35 is that the expert's primary duty is to the court, not to the party instructing them. This is a crucial distinction that expert witnesses must always uphold. While a solicitor or barrister might appoint the expert, the expert's role is to assist the court in an objective and unbiased manner.

Importance of Impartiality and Objectivity

CPR 35.3 explicitly states that expert evidence should be 'uninfluenced by the pressures of litigation'. This means the expert must:

• Provide an objective and unbiased opinion, regardless of the potential impact on the instructing party's case.
• Not act as an advocate for any party.
• Clearly state when a particular question or issue falls outside their expertise.
• Identify any assumptions made and provide the basis for those assumptions.

Failure to demonstrate impartiality can lead to an expert's evidence being disregarded or given significantly less weight by the court. Solicitors selecting an expert witness must therefore choose individuals who not only possess the requisite technical expertise but also a proven commitment to this overriding duty.

CPR 35 Compliant Expert Reports

A key aspect of CPR 35 compliance is the expert's written report. The rules prescribe specific content and format requirements to ensure clarity, completeness, and fairness. An expert report that does not meet these standards may be rejected by the court or require costly amendments.

Mandatory Contents of an Expert's Report (CPR 35.9 & PD 35)

Practice Direction (PD) 35, paragraph 3.2, details the mandatory components of a CPR 35 compliant expert report. These include:

1. Instructions: Details of the expert's qualifications and experience, and a statement setting out the substance of all material instructions given to the expert.
2. Summary of Opinions: A summary of the conclusions reached.
3. Facts and Assumptions: The material facts on which the opinions are based and a note of any assumptions made.
4. Reasons: The reasons for the opinions expressed.
5. Questions outside Expertise: An indication of any questions or issues falling outside the expert's own scope of expertise.
6. Literature and Materials: A list of all documents and literature relied upon.
7. Examinations and Tests: Details of any examinations, tests or other investigations carried out, including the findings.
8. Declaration of Understanding and Compliance: A statement that the expert understands and has complied with their duty to the court under CPR 35.3.
9. Declaration of Truth: A statement of truth in the following form: 'I confirm that I have made it my duty to assist the Court on the matters within my expertise and that the opinions expressed in this report are my own independent professional opinion.'

Attending to these details ensures the report is comprehensive and transparent, allowing all parties and the court to understand the basis of the expert's opinions. For solicitors seeking an expert, it is vital to discuss these requirements during the initial instruction phase to ensure the expert is fully aware of their obligations and can deliver a compliant report within the specified timeframe.

Expert Qualifications and Experience

CPR 35 does not explicitly define what qualifications an expert must possess, but it implicitly requires that they have sufficient knowledge, skill, and experience in the relevant field to provide credible and helpful evidence. The court will assess the expert's qualifications when determining the admissibility and weight of their evidence.

Demonstrating Expertise

An expert must demonstrate their expertise effectively within their report and, if necessary, during oral testimony. This typically involves:

• Listing relevant academic qualifications and professional certifications.
• Detailing their professional experience, including specific projects, research, or roles relevant to the case.
• Highlighting any publications, presentations, or teaching experience in their specialist area.
• Explaining how their expertise applies to the specific issues in the case.

Solicitors often seek experts with extensive practical experience alongside formal qualifications, as this can enhance the credibility of their evidence. For more information on what makes a suitable expert, you might consider reading our blog on expert witness requirements.

Expert Discussions and Joint Statements

CPR 35 encourages experts to meet and discuss their evidence, particularly if they have differing opinions. This process is governed by CPR 35.12 and PD 35, paragraph 9.

Purpose of Expert Discussions

The primary goals of expert discussions are to:

• Identify and agree on the issues where there is agreement between experts.
• Identify and narrow the issues where there is disagreement.
• Explore the reasons for any disagreement.
• Consider if any further work or investigation might resolve or reduce disagreement.

Following the discussion, a joint statement must be prepared and signed by all experts, outlining the agreed and disagreed points and the reasons for disagreement. This joint statement becomes part of the evidence presented to the court and is crucial for streamlining the trial process. An expert witness must approach these discussions constructively, seeking genuinely to narrow issues rather than simply reiterating their original positions.

Court Directions and Case Management

CPR 35 operates within the broader framework of case management under CPR Part 3. The court has substantial power to control expert evidence, including limiting the number, type, and costs of experts, and directing the nature of their evidence. An expert witness must be aware of and comply with all court directions.

Compliance with Court Orders

Typical court directions relating to expert evidence might include:

• Deadlines for exchanging expert reports.
• Directions for expert meetings and joint statements.
• Instructions on specific questions the expert must answer.
• Requirements for attending court for cross-examination.

An expert's failure to adhere to these directions can lead to serious consequences, including their evidence being excluded or the instructing party incurring cost sanctions. Regular communication between the expert and the instructing solicitor is essential to ensure all court orders are understood and met. You can find more details on court procedure and directions on the Judiciary.uk website.

FAQ

What is CPR Part 35?

CPR Part 35 is a section of the Civil Procedure Rules in England and Wales that governs expert evidence in civil disputes. It sets out the rules for when and how expert witnesses can provide evidence to the court.

What is an 'expert' under CPR 35?

An 'expert' under CPR 35 is an individual who possesses special knowledge or experience in a particular field, allowing them to provide an impartial opinion on matters within their expertise that are relevant to the court's decision in a case.

Can a non-compliant expert report be used in court?

Generally, no. A report that significantly deviates from CPR 35 requirements may be ruled inadmissible, or given very little weight, by the court. The court has a duty to ensure evidence is fair and reliable.

What is the expert's primary duty?

Pursuant to CPR 35.3, an expert's primary duty is to the court, not to the party instructing or paying them. They must provide independent, objective, and unbiased evidence.

How does CPR 35 affect expert fees?

CPR 35.4 states that an expert's fees are paid by the instructing party, but the court retains the power to control these fees. Experts must provide clear estimates and adhere to agreed costs, as non-compliance can impact cost recovery in the litigation.

Achieving CPR 35 compliance is a multi-faceted process requiring meticulous attention to detail, a strong understanding of legal duties, and unwavering commitment to impartiality. For solicitors, identifying a truly CPR 35 compliant expert witness is critical to the strength of a case. We specialise in connecting legal professionals with qualified experts who understand and adhere to these stringent requirements. If you require a CPR 35 compliant expert for your case, please do not hesitate to submit a confidential request today.