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  • Apr 12, 2019
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35.1 Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Duty to restrict expert evidence

Interpretation and definitions
35.2 (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.

Experts – overriding duty to the court
35.3 (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.

Court’s power to restrict expert evidence
35.4 (1) No party may call an expert or put in evidence an expert’s report without the court’s permission.
(2) 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.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.

(3A) 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.

(3B) 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.

(3C) In this rule, ‘fixed cost medical report’ and ‘soft tissue injury claim’ have the same meaning as in paragraph 1.1(10A) and (16A), respectively, of the RTA Protocol.

(Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

General requirement for expert evidence to be given in a written report
35.5 (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.

Written questions to experts
35.6 (1) 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 appointed under rule 35.7.
(2) Written questions under paragraph (1) –
(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.

(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

(4) 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.

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