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50th Amendment to the CPR

12 October 2009
The issues

Changes to Part 35 and Part 44

The facts

The most significant changes to the CPR are in respect of expert evidence and costs. Part 35 has been changed:

1. To define expert and single joint expert;
2. To clarify the overriding duty of the expert to the Court;
3. To introduce a new 3(a) to 35.4 to the effect that 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.
4. Part 35.5 adds the Small Claims Track to the Fast Track in respect of the tracks in which a Court will not direct an expert to attend a Hearing unless it is necessary to do so in the interest of justice.
5. 35.6 introduces the requirement that questions on an expert’s report must be proportionate.
6. Under 35.8 the Rule has been changed to provide that where a single joint expert can be used, any relevant party rather than any instructing party may give instructions to the expert.

The Practice Direction has been altered. The Practice Direction now commences with an introduction to the effect that Part 35 is intended to limit the use of oral evidence to that which is reasonably required and to re-emphasise that matters requiring expert evidence, where possible, should be dealt with by only one expert.

The statement of truth has been amended (see PD2.4) The part of the Practice Direction with the instruction of a single expert has been substantially amended and lists the matters the Court will take into account in deciding whether to give permission for the parties to rely on expert evidence at all and whether that evidence should come from a single joint expert. The issues in brief are:

* Whether it is proportionate to have separate experts for each party having regard to the amount in dispute, the importance to the parties and the complexity of the issue;
* Whether the Court is likely to be assisted by a single joint expert and the matter to be resolved more speedily and in a more cost effective way [no reference there to justice];
* Whether expert evidence is to be given on the issue of liability, causation or quantum;
* Whether the evidence falls within a substantially established area of knowledge which is unlikely to be in dispute, where there is likely to be a range of expert opinion;
* Whether a party has already instructed an expert and whether or not that was done in compliance with any Practice Direction (it doesn’t say which way this goes);
* Whether questions are likely to remove the need for the other party to instruct an expert of its own;
* Whether a conference might be required with the legal representatives, experts and witnesses which might make the instruction of a single joint expert impracticable;
* Whether a claim to privilege made the instruction of a single joint expert inappropriate (PD35.7).

PD35 9.1 begins surprisingly with the statement that unless directed by the Court discussions between experts are not mandatory and that the parties should consider at an early stage with their experts whether there was likely to be any useful purpose in holding an expert’s discussion and, if so, when. The purpose of the discussions is:

* The extent of the agreement;
* The points of and short reasons for disagreement;
* Action which might be taken to resolve points of disagreement;
* Any further material issues not raised and the extent to which those issues were agreed;
* Practice Direction states that the parties must discuss, and if possible, agree an agenda that helps the experts to focus on the issues to be discussed and makes the point that the agenda must not be in the form of leading questions, nor should it be hostile in terms.

No one other than the experts should attend the discussions, unless the Court agrees or all the parties agree. If they do attend they should not intervene, except to answer questions put by the experts or to advise on the law, and the experts have a right to hold part of their discussions, even so in the absence of the legal representatives. The expert does not require the authority of the parties to sign the joint statement and if an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.

Part 44 has been amended in respect of matters relating to notice of funding arrangements. 44.3(b) has been amended to provide that a party may not recover an additional liability unless the Court orders otherwise. The effect of this is to allow, if necessary, the percentage increase relating to the costs to the legal representative the postponement of his fees to be recoverable but presumably more notably, allow recoverability of any additional liability for any period (no longer any period in the proceedings with any period at all) during which that party failed to provide information about a funding arrangement and similarly any percentage increase where the party had failed to comply with the requirement in the Costs Practice Direction or any Court Order to disclose the reasons for settling the percentage increase at the levels stated in the CFA. The same applies to an insurance premium where no information has been provided and the parties are reminded that 9.3 of the Practice Direction in respect of pre-action conduct provides that a party must provide any other party as soon as possible about a funding arrangement entered into before the start of proceedings.

The Practice Direction has been amended at 19.4(3) to provide that where a funding arrangement is an insurance policy, the party must now not merely state the name and address of the insurer, the policy number and the date of the policy and the claim or claims to which it relates, but must also state the level of cover provided by the insurance and state whether the insurance premiums are staged and if so the points at which the increased premium is payable. This new arrangement will apply only in respect of funding arrangements entered into on or after the 1st October 2009.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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