New CPR 35 Practice Direction
On I October 2009 a revision to CPR 35 came into effect with several changes, viz:
1. Summarises the contents of an Expert’s Report (Paragraphs 3.1 and 3.2);
2. Changes the form of the mandatory Statement of Truth verifying the Report. The new form of that Statement must now read:
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
Thus, from 1 October 2009 all experts’ reports must contain this statement to render them compliant with CPR.
3. Sets out the criteria to be considered by the Court in deciding whether or not to permit the calling of Expert Evidence and whether or not that evidence should be from a Single Joint Expert (Paragraph 7).
4. Provides that cross-examination of experts on the contents of their instructions will not be allowed unless the Court permits or the party giving the instructions consents. Before it gives permission the Court must be satisfied that there are reasonable grounds to consider 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. (Paragraph 5)
5. There are new details regarding discussions between experts (Paragraph 9) and 9.4 states that, unless the Court orders, or all of the parties and the experts agree, neither the parties nor their legal representatives may attend experts’ discussions. If the legal representatives do attend (9.5) 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 even then the experts may, if they so wish, hold part of their discussions in the absence of the legal representatives.
6. Finally, Paragraph 10 amends CPR 35.15 relating to the appointment of an Assessor, as to the making of objections by any party either to the identity of the proposed assessor or his/her qualifications.
7. As a result of the new Practice Direction, Section 13.5 of The Civil Justice Council’s Experts’ Protocol will have to be changed to refer to the new form of the mandatory declarations and the Statement of Truth.