Evidence (W13)

Question 1

CPR 32.1 - Power of court to control evidence

Answer 1

The court may control the evidence by giving directions as to:

(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.

The court may use its power under this rule to exclude evidence that would otherwise be admissible.

Question 2

CPR 32.2 - Evidence of witnesses: general rule

Answer 2

• The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved:
  (a) at trial, by their oral evidence given in public; and
  (b) at any other hearing, by their evidence in writing.
• The court may give directions—
  (a) identifying or limiting the issues to which factual evidence may be directed;
  (b) identifying the witnesses who may be called or whose evidence may be read; or
  (c) limiting the length or format of witness statements.

Question 3

CPR 32.3 - Evidence by video link or other means

Answer 3

The court may allow a witness to give evidence through a video link or by other means.

Question 4

CPR 32.4 - Requirement to serve witness statements for use at trial

Answer 4

• A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.
• The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
• The court may give directions as to—
  (a) the order in which witness statements are to be served; and
  (b) whether or not the witness statements are to be filed.

Question 5

CPR 32.5 - Use at trial of witness statements which have been served

Answer 5

• If—
  (a) a party has served a witness statement; and
  (b) he wishes to rely at trial on the evidence of the witness who made the statement,
  he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.
• Where a witness is called to give oral evidence, his witness statement shall stand as his evidence in chief unless the court orders otherwise.
• A witness giving oral evidence at trial may with the permission of the court—
  (a) amplify his witness statement; and
  (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
• The court will give permission only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.
• If a party who has served a witness statement does not—
  (a) call the witness to give evidence at trial; or
  (b) put the witness statement in as hearsay evidence,
  any other party may put the witness statement in as hearsay evidence.

Question 6

CPR 32.6 - Evidence in proceedings other than at trial

Answer 6

• the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.
• At hearings other than the trial, a party may rely on the matters set out in—
  (a) his statement of case; or
  (b) his application notice, if the statement of case or application notice is verified by a statement of truth.

Question 7

CPR 32.7 - Order for cross-examination

Answer 7

• Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.
• If the court gives permission, but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.

Question 8

CPR 32.8 - Form of witness statement

Answer 8

A witness statement must comply with the requirements set out in Practice Direction 32.

Question 9

CPR 32.9 - Witness summaries

Answer 9

• A party who:
  (a) is required to serve a witness statement for use at trial; but
  (b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.
• A witness summary is a summary of—
  (a) the evidence, if known, which would otherwise be included in a witness statement; or
  (b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness
• Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.
• Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.

Question 10

CPR 32.10 - Consequence of failure to serve a witness statement or summary

Answer 10

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

Question 11

CPR 32.11 - Cross-examination on a witness statement

Answer 11

Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement, whether or not the statement or any part of it was referred to during the witness’s evidence in chief.

Question 12

CPR 32.12 - Use of witness statements for other purposes

Answer 12

• a witness statement may be used only for the purpose of the proceedings in which it is served.
• does not apply if and to the extent that—
  (a) the witness gives consent in writing to some other use of it;
  (b) the court gives permission for some other use; or
  (c) the witness statement has been put in evidence at a hearing held in public.

Question 13

CPR 32.13 - Availability of witness statements for inspection

Answer 13

• A witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs.
• Any person may ask for a direction that a witness statement is not open to inspection.
• The court will not make a direction unless it is satisfied that a witness statement should not be open to inspection because of—
  (a) the interests of justice;
  (b) the public interest;
  (c) the nature of any expert medical evidence in the statement;
  (d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or
  (e) the need to protect the interests of any child or protected party.
• The court may exclude from inspection words or passages in the statement.

Question 14

CPR 32.14 - False statements

Answer 14

Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.

Question 15

CPR 32.15 - Affidavit

Answer 15

• Evidence must be given by affidavit, instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.
• the party putting forward an affidavit by choice may not recover the additional cost of making it from any other party unless the court orders otherwise.

Question 16

CPR 32.16 - Form of affidavit

Answer 16

An affidavit must comply with the requirements set out in Practice Direction 32.

Question 17

CPR 32.18 - Notice to admit facts

Answer 17

• A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.
• A notice to admit facts must be served no later than 21 days before the trial.
• Where the other party makes any admission in response to the notice the admission may be used against him only:
  (a) in the proceedings in which the notice to admit is served; and
  (b) by the party who served the notice.
• The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.

Question 18

CPR 32.19 - Notice to admit or produce documents

Answer 18

• A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.
• A notice to prove a document must be served—
  (a) by the latest date for serving witness statements; or
  (b) within 7 days of disclosure of the document,
  whichever is later.

Question 19

CPR 34.2 - Witnesses summonses

Answer 19

• A witness summons is a document issued by the court requiring a witness to—
  (a) attend court to give evidence; or
  (b) produce documents to the court.
• A witness summons must be in the relevant practice form.
• There must be a separate witness summons for each witness.
• A witness summons may require a witness to produce documents to the court either—
  (a) on the date fixed for a hearing; or
  (b) on such date as the court may direct.
• The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.

Question 20

CPR 34.3 - Issue of a witness summons

Answer 20

• A witness summons is issued on the date entered on the summons by the court.
• A party must obtain permission from the court where he wishes to:
  (a) have a summons issued less than 7 days before the date of the trial;
  (b) have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or
  (c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial.
• A witness summons must be issued by—
  (a) the court where the case is proceeding; or
  (b) the court where the hearing in question will be held.
• The court may set aside or vary a witness summons.

Question 21

CPR 34.4 - Witness summons in aid of inferior court or of tribunal

Answer 21

• The court may issue a witness summons in aid of an inferior court or of a tribunal.
• The court which issued the witness summons under this rule may set it aside.
• In this rule, “inferior court or tribunal” means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it.

Question 22

CPR 34.5 - Time for serving a witness summons

Answer 22

• The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.
• The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.
• A witness summons which is—
  (a) served in accordance with this rule; and
  (b) requires the witness to attend court to give evidence;
  is binding until the conclusion of the hearing at which the attendance of the witness is required.

Question 23

CPR 34.6 - Who is to serve a witness summons

Answer 23

• A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.
• Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.

Question 24

CPR 34.7 - Right of witness to travelling expenses and compensation for loss of time

Answer 24

• At the time of service of a witness summons the witness must be offered or paid—
  (a) a sum reasonably sufficient to cover his expenses in travelling to and from the court; and
  (b) such sum by way of compensation for loss of time as may be specified in Practice Direction 34A.

Question 25

CPR 34.7A - Fines imposed under section 55 of the County Courts Act 1984

Answer 25

If a person has failed to comply with an order under section 55 of the County Courts Act 1984 but can demonstrate any reason why they should not be (or should not have been) fined for failure to comply with the order, the court may direct that that person give evidence by witness statement, affidavit or otherwise.

Question 26

CPR 34.8 - Evidence by deposition

Answer 26

• A party may apply for an order for a person to be examined before the hearing takes place.
• A person from whom evidence is to be obtained following an order under this rule is referred to as a “deponent” and the evidence is referred to as a “deposition”.
• An order under this rule shall be for a deponent to be examined on oath before—
  (a) a judge;
  (b) an examiner of the court; or
  (c) such other person as the court appoints.
• The order may require the production of any document which the court considers is necessary for the purposes of the examination.
• The order must state the date, time and place of the examination.
• At the time of service of the order the deponent must be offered or paid—
  (a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
  (b) such sum by way of compensation for loss of time as may be specified in Practice Direction 34A.
• Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.

Question 27

CPR 34.9 - Conduct of examination on deposition

Answer 27

• Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.
• If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.
• The examiner may conduct the examination in private if he considers it appropriate to do so.
• The examiner must ensure that the evidence given by the witness is recorded in full.
• The examiner must send a copy of the deposition—
  (a) to the person who obtained the order for the examination of the witness; and
  (b) to the court where the case is proceeding.
• The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.

Question 28

CPR 34.11 - Use of deposition at a hearing

Answer 28

• A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise.
• A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.
• He must serve the notice at least 21 days before the day fixed for the hearing.
• The court may require a deponent to attend the hearing and give evidence orally.
• Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement.

Question 29

CPR 33.1 - Hearsay definition

Answer 29

“hearsay” means a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated; and

Question 30

CPR 33.2 - Notice of intention to rely on hearsay evidence

Answer 30

• Where a party intends to rely on hearsay evidence at trial and either:
  (a) that evidence is to be given by a witness giving oral evidence; or
  (b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence;
  that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a witness statement on the other parties in accordance with the court’s order.
• Where paragraph (b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement—
  (a) inform the other parties that the witness is not being called to give oral evidence; and
  (b) give the reason why the witness will not be called.
• In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which—
  (a) identifies the hearsay evidence;
  (b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and
  (c) gives the reason why the witness will not be called.
• The party proposing to rely on the hearsay evidence must—
  (a) serve the notice no later than the latest date for serving witness statements; and
  (b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.

Question 31

CPR 33.3 - Circumstances in which notice of intention to rely on hearsay evidence is not required

Answer 31

• Section 2(1) of the Civil Evidence Act 1995 (duty to give notice of intention to rely on hearsay evidence) does not apply—
  (a) to evidence at hearings other than trials;
  (aa) to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence;
  (b) to a statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceedings; or
  (c) where the requirement is excluded by a practice direction.

Question 32

CPR 33.4 - Power to call witness for cross-examination on hearsay evidence

Answer 32

• Where a party—
  (a) proposes to rely on hearsay evidence; and
  (b) does not propose to call the person who made the original statement to give oral evidence,
  the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
• An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.

Question 33

CPR 33.5 - Credibility

Answer 33

(1) Where a party—
(a) proposes to rely on hearsay evidence; but
(b) does not propose to call the person who made the original statement to give oral evidence; and
(c) another party wishes to call evidence to attack the credibility of the person who made the statement,
the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.
- A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.

Question 34

CPR 39.3 - Failure to attend the trial

Answer 34

• The court may proceed with a trial in the absence of a party but—
  (a) if no party attends the trial, it may strike out the whole of the proceedings;
  (b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and
  (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).
• Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.
• Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
• Where an application is made by a party who failed to attend the trial, the court may grant the application only if the applicant—
  (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
  (b) had a good reason for not attending the trial; and
  (c) has a reasonable prospect of success at the trial.

Question 35

s.1 Civil Evidence Act 1995 - Admissibility of hearsay evidence

Answer 35

• In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
• “hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated

Question 36

s.2 Civil Evidence Act 1995 - Notice of proposal to adduce hearsay evidence

Answer 36

• (1) A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings:
  (a) such notice (if any) of that fact, and
  (b) on request, such particulars of or relating to the evidence,
  as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay.
• (2) Provision may be made by rules of court—
  (a) specifying classes of proceedings or evidence in relation to which subsection (1) does not apply, and
  (b) as to the manner in which (including the time within which) the duties imposed by that subsection are to be complied with in the cases where it does apply.
• (3) Subsection (1) may also be excluded by agreement of the parties; and compliance with the duty to give notice may in any case be waived by the person to whom notice is required to be given.
• (4) A failure to comply with subsection (1), or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court—
  (a) in considering the exercise of its powers with respect to the course of proceedings and costs, and
  (b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.

Question 37

s.3 Civil Evidence Act 1995 - Power to call witness for cross-examination on hearsay evidence

Answer 37

Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.

Question 38

s.4 Civil Evidence Act 1995 - Considerations relevant to weighting of hearsay evidence

Answer 38

(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved has any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Question 39

CPR 35.1 - Duty to restrict expert evidence

Answer 39

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

Question 40

CPR 35.2 - Definition of experts

Answer 40

(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.

Question 41

CPR 35.3 - Expert’s overriding duty to the court

Answer 41

(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.

Question 42

CPR 35.4 - Court’s power to restrict expert evidence

Answer 42

• No party may call an expert or put in evidence an expert’s report without the court’s permission.
• When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify—
  (a) the field in which expert evidence is required and the issues which the expert evidence will address; and
  (b) where practicable, the name of the proposed expert.
• If permission is granted it shall be in relation only to the expert named or the field identified. The order granting permission may specify the issues which the expert evidence should address.
• 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.
• In a soft tissue injury claim, permission—
  (a) may normally only be given for one expert medical report;
  (b) may not be given initially unless the medical report is a fixed cost medical report. Where the claimant seeks permission to obtain a further medical report, if the report is from a medical expert in any of the following disciplines—
  (i) Consultant Orthopaedic Surgeon;
  (ii) Consultant in Accident and Emergency Medicine;
  (iii) General Practitioner registered with the General Medical Council; or
  (iv) Physiotherapist registered with the Health and Care Professions Council,
  the report must be a fixed cost medical report.
• In a claim for a whiplash injury, whether or not it is part of a claim for other injuries—
  (a) permission—
  (i) may normally only be given for one expert medical report in respect of the claim for the whiplash injury; and
  (ii) may not be given initially unless the medical report is a fixed cost medical report; and
  (b) where the claimant seeks permission to obtain a further medical report in respect of the claim for the whiplash injury only, the report must be a fixed cost medical report if the report is from a medical expert in any of the following disciplines—
  (i) Consultant Orthopaedic Surgeon;
  (ii) Consultant in Accident and Emergency Medicine;
  (iii) General Practitioner registered with the General Medical Council; or
  (iv) Physiotherapist registered with the Health and Care Professions Council.
• Where the claimant obtains a medical report in respect of a more serious injury suffered on the same occasion as the whiplash injury, the claimant may be given permission to use that report instead of a fixed cost medical report under paragraph (3C) provided that—
  (a) the report is from a doctor who is listed on the General Medical Council’s Specialist Register; and
  (b) the report provides evidence of the whiplash injury.
• The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

Question 43

CPR 35.4 - Court’s power to restrict expert evidence

Answer 43

• No party may call an expert or put in evidence an expert’s report without the court’s permission.
• When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify—
  (a) the field in which expert evidence is required and the issues which the expert evidence will address; and
  (b) where practicable, the name of the proposed expert.
• If permission is granted it shall be in relation only to the expert named or the field identified. The order granting permission may specify the issues which the expert evidence should address.
• 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.
• In a soft tissue injury claim, permission—
  (a) may normally only be given for one expert medical report;
  (b) may not be given initially unless the medical report is a fixed cost medical report. Where the claimant seeks permission to obtain a further medical report, if the report is from a medical expert in any of the following disciplines—
  (i) Consultant Orthopaedic Surgeon;
  (ii) Consultant in Accident and Emergency Medicine;
  (iii) General Practitioner registered with the General Medical Council; or
  (iv) Physiotherapist registered with the Health and Care Professions Council,
  the report must be a fixed cost medical report.
• In a claim for a whiplash injury, whether or not it is part of a claim for other injuries—
  (a) permission—
  (i) may normally only be given for one expert medical report in respect of the claim for the whiplash injury; and
  (ii) may not be given initially unless the medical report is a fixed cost medical report; and
  (b) where the claimant seeks permission to obtain a further medical report in respect of the claim for the whiplash injury only, the report must be a fixed cost medical report if the report is from a medical expert in any of the following disciplines—
  (i) Consultant Orthopaedic Surgeon;
  (ii) Consultant in Accident and Emergency Medicine;
  (iii) General Practitioner registered with the General Medical Council; or
  (iv) Physiotherapist registered with the Health and Care Professions Council.
• Where the claimant obtains a medical report in respect of a more serious injury suffered on the same occasion as the whiplash injury, the claimant may be given permission to use that report instead of a fixed cost medical report under paragraph (3C) provided that—
  (a) the report is from a doctor who is listed on the General Medical Council’s Specialist Register; and
  (b) the report provides evidence of the whiplash injury.
• The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

Question 44

CPR 35.5 - General requirement for expert evidence to be given in a written report

Answer 44

(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.

Question 45

CPR 35.6 - Written questions to experts

Answer 45

• 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
• Written questions:
  (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.
• An expert’s answers to questions shall be treated as part of the expert’s report.
• 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.

Question 46

CPR 35.7 - Court’s power to direct that evidence is to be given by a single joint expert

Answer 46

• 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.
• 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.

Question 47

CPR 35.10 - Contents of an expert’s report

Answer 47

(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 shall not be privileged 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 to be inaccurate or incomplete.

Question 48

CPR 35.11 - Use by one party of expert’s report disclosed by another

Answer 48

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

Question 49

CPR 35.12 - Discussions between experts

Answer 49

• 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.
• The court may specify the issues which the experts must discuss.
• 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.
• The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
• 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.

Question 50

CPR 35.13 - Consequence of failure to disclose expert’s report

Answer 50

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.

Question 51

CPR 35.14 - Expert’s right to ask court for directions

Answer 51

• Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.
• Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions —
  (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.
• The court, when it gives directions, may also direct that a party be served with a copy of the directions.

Question 52

35PD.2 - Expert Evidence—General Requirements

Answer 52

• Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
• Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.
• Experts should consider all material facts, including those which might detract from their opinions.
• Experts should make it clear—
  (a) when a question or issue falls outside their expertise; and
  (b) when they are not able to reach a definite opinion, for example because they have insufficient information.
• If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court.

Question 53

35PD.3 - Form and content of an expert’s report

Answer 53

• should be addressed to the court and not to the party from whom the expert has received instructions.
• must—
  (1) give details of the expert’s qualifications;
  (2) give details of any literature or other material which has been relied on in making the report;
  (3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
  (4) make clear which of the facts stated in the report are within the expert’s own knowledge;
  (5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;
  (6) where there is a range of opinion on the matters dealt with in the report—
  (a) summarise the range of opinions; and
  (b) give reasons for the expert’s own opinion;
  (7) contain a summary of the conclusions reached;
  (8) if the expert is not able to give an opinion without qualification, state the qualification; and
  (9) contain a statement that the expert—
  (a) understands their duty to the court, and has complied with that duty; and
  (b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.
• An expert’s report must be verified by a statement of truth

Question 54

35PD.4 - Information

Answer 54

The court may direct a party with access to information, which is not reasonably available to another party to serve on that other party a document, which records the information. The document served must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information and an assessment of its significance.

Question 55

35PD.5 - Instructions

Answer 55

• Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it or the party consents.
• . Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice.

Question 56

35PD.6 - Questions to Experts

Answer 56

• Where a party sends a written question or questions under rule 35.6 direct to an expert, a copy of the questions must, at the same time, be sent to the other party or parties.
• The party or parties instructing the expert must pay any fees charged by that expert for answering questions.

Question 57

35PD.7 - Single joint expert

Answer 57

When considering whether to give permission for the parties to rely on expert evidence and whether that evidence should be from a single joint expert the court will take into account all the circumstances in particular, whether:
(a) it is proportionate to have separate experts for each party on a particular issue with reference to—
(i)the amount in dispute;
(ii)the importance to the parties; and
(iii)the complexity of the issue;
(b) the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts;
(c) expert evidence is to be given on the issue of liability, causation or quantum;
(d) the expert evidence falls within a substantially established area of knowledge which is unlikely to be in dispute or there is likely to be a range of expert opinion;
(e) a party has already instructed an expert on the issue in question and whether or not that was done in compliance with any practice direction or relevant pre-action protocol;
(f) questions put in accordance with rule 35.6 are likely to remove the need for the other party to instruct an expert if one party has already instructed an expert;
(g) questions put to a single joint expert may not conclusively deal with all issues that may require testing prior to trial;
a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical; and
(i) a claim to privilege makes the instruction of any expert as a single joint expert inappropriate.

Question 58

35PD.8 - Orders

Answer 58

Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert. The claimant must serve the order on a single joint expert.

Question 59

35PD.9 - Discussions between experts

Answer 59

• Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an expert’s discussion and if so when.
• The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues.
• Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.
• Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions.
• If the legal representatives do attend—
  (i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and
  (ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.
• A statement must be prepared by the experts. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.
• Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.
• If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.

Question 60

CPR 35.0.3 - Judicial assessment of expert evidence

Answer 60

• A judge is entitled to prefer the evidence of a witness of fact to that of an expert witness. Where a judge prefers the evidence of a witness of fact over that of an expert witness, reasons justifying the preference should be given.
• a judge has to give sufficient reasons for preferring the evidence of one expert to another expert, and that failure to do so may be valid grounds for an appeal and for remitting the case back for a re-trial.
• Where an expert witness completely disregards their duty to the court by failing to follow the court’s directions, the court may rule that the party may not rely on that expert’s evidence, the effect of which may mean that the party loses the entire action.
• an expert must explain the basis of his or her evidence when it is not personal observation.

Question 61

CPR 35.0.4 - Expert evidence and the ultimate question

Answer 61

• Experts may provide evidence on the “ultimate issue” in proceedings, which is to say the matter to be decided by the court.
• They may not however determine such issues. It is for the court, on the balance of probabilities, to determine such issues based on all the evidence before it. Trial is by judge not expert.

Question 62

CPR 35.1.1 - Effect of CPR 35.1

Answer 62

Expert evidence may only be adduced with the court’s permission.

Question 63

CPR 35.1.2 - Expert evidence held not to be necessary

Answer 63

• Opinion evidence as to what an expert would have done in a hypothetical situation is not permissible
• In small claims, expert evidence is unnecessary in the ordinary case in respect of second-hand car valuations because published and reputable valuation guides is sufficient

Question 64

CPR 35.3.2 - Duties and responsibilities of experts

Answer 64

• Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation
• An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise.
• should state the facts or assumptions on which their opinion is based. They should not omit to consider material facts which could detract from their concluded opinion
• An expert witness should make it clear when a particular question or issue falls outside their expertise.
• If an expert’s opinion is not properly researched because they consider that insufficient data are available then this must be stated with an indication that the opinion is no more than a provisional one.
• If, after exchange of reports, an expert witness changes their view on the material having read the other side’s expert report or for any other reason, such change of view should be communicated (through legal representative) to the other side without delay and when appropriate to the court.
• Where expert evidence refers to photographs, plans, calculations, analyses, measurements survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.

Question 65

35.4.4 - Pre-action protocols and disclosure of expert reports

Answer 65

• The pre-action protocols for personal injury and clinical negligence encourage parties to identify the need for expert evidence at the stage of investigating the claim, and in fast track personal injury cases in particular to try to instruct a single expert in a particular discipline, rather than one expert per party.
• Expert shopping is to be discouraged.
• where a party made an application to change its expert witness during a case management conference without prior warning, it was under an obligation to disclose all relevant facts (such as the first expert’s involvement in the case, details of his expertise and the issues to which his experience was relevant), take the judge to the law on changing experts and remind the court that, if there was even a hint of expert shopping, the usual order would be to grant permission on condition of disclosure of the first expert’s evidence.

Question 66

CPR 35.7.4 - Obtaining further expert evidence

Answer 66

• Where the parties give joint instructions to a single expert, it is conceivable that one of the parties may be unhappy with the report produced by the single joint expert. The question may then arise whether that party should be permitted to instruct another expert with a view to their obtaining a report which will enable them to make a decision as to whether or not there were aspects of the report of the single joint expert which they might wish to challenge.
• the fact that a party has agreed to a joint expert, does not, of itself, operate as a bar to him or her then seeking further expert evidence.
• It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report.
• In a case where there is a substantial sum involved, one starts, as I have indicated, from the position that, wherever possible, a joint report is obtained. If there is disagreement on that report, then there would be an issue as to whether to ask questions or whether to get your own expert’s report. If questions do not resolve the matter and a party, or both parties, obtain their own expert’s report, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking appropriate questions.
• calling experts to give oral evidence is a last resort, due to its expense.
• the grant of permission was subject to the court’s discretion, involving a very fact‐sensitive approach in achieving “overall justice to the parties”, having regard to the overriding objective.

Question 67

CPR 35.11.1 - Effect of rule 35.11

Answer 67

It is not necessary for a party to seek permission to rely upon an expert’s report which had been disclosed by a party who had ceased to be involved in the proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose.

Question 68

s.3 Civil Evidence Act 1972 - Admissibility of expert opinion and certain expressions of non-expert opinion

Answer 68

• where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
• where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.