What is CPR35 and Why Does It Matter?
CPR35 provides the structure for the use of expert evidence in civil litigation across England and Wales. Its primary purpose ensures that expert evidence is used appropriately and does not become a tool for bias or advocacy. Under CPR35, expert evidence must be:
• Used when necessary.
• Presented clearly and consistently.
• Independent, objective, and focused on assisting the court.
One of the key principles of CPR35 requires parties to obtain the court’s permission before introducing expert evidence. This prevents unnecessary costs accruing and ensures that expert input is proportional to the issues in the dispute.
The court also has wide discretion under CPR35 to control how parties use expert evidence. This includes determining whether parties can appoint their own experts or whether a single joint expert should be used instead. This flexibility allows the court to adjust how much it relies on experts based on the case’s complexity and its specific needs.
The fundamental principle of CPR35: an expert’s duty is to the court, not to the party who instructs or pays them. This is a critical distinction that supports the integrity of the entire process.
Who is an Expert Witness Under CPR35?
An expert witness is someone who has specialist knowledge, skills, or experience in a particular field. Experts provide the court with independent opinions that assist it in understanding complex issues beyond the judge’s ordinary experience.
This role applies across a wide range of sectors and disputes, including:
• Construction and engineering cases.
• Clinical negligence and medical claims.
• Financial and accounting disputes.
• Property and valuation matters.
In the context of construction disputes, for example, experts such as surveyors, engineers, and architects may be called upon to assess defects, evaluate compliance with standards, or provide opinions on causation and loss.
An expert must remain impartial at all times, regardless of which party instructs them. Their duty is to:
• Explain complex technical issues in a clear and understandable way.
• Provide objective analysis based on the evidence.
• Assist the court in reaching a fair and informed decision.
Remember, expert witnesses are not there to ‘win’ the case. Their role is entirely to assist the court, not to advocate for one side over the other.
Duties and Responsibilities Under CPR35:
Under CPR35 the responsibilities of expert witnesses are clearly defined, in particular CPR35.3, which sets out their overriding duty to the court. This duty takes precedence over any obligations to the instructing party.
Experts must act independently, objectively, and with integrity at all times. This includes ensuring that their opinions are based on evidence and not influenced by the party who is paying them. Under CPR35, expert reports must meet strict requirements. A compliant report should include:
• The expert’s qualifications and relevant experience.
• Details of instruction received.
• The materials and documents relied upon.
• Any assumptions made in forming their opinion.
• A clear explanation of the reasoning behind their conclusions.
On top of these, the report must include both:
• A Statement of Truth, confirming that the contents of the report are true to the best of the expert’s knowledge.
• A Declaration of Compliance, confirming adherence to CPR35 and the expert’s duty to the court.
Importantly, experts must only give opinions within their area of expertise. They must acknowledge if a question falls outside their knowledge. They are also required to update their report or inform the instructing party if their opinion changes due to new information. Failure to do so, can have serious consequences:
• Disregard the expert’s evidence.
• Criticise the expert’s conduct.
• Impose cost penalties on the instructing party.
Single Joint Experts VS Party-Appointed Experts:
One of the key features of CPR35 is the flexibility it gives the court in managing expert evidence. In some cases, the court may direct that a single joint expert is appointed.
But what is a single joint expert?
A single joint expert is instructed by both parties, rather than each sides appointing their own expert. This is commonly used in less complex or lower-value disputes and offers some advantages:
• Reduces duplication of evidence used by experts.
• Helps reduce cost.
• Encourages cooperation between parties.
However, in more complex disputes, such as construction disputes, each party may be permitted to appoint their own expert. In cases with multiple experts, CPR35.2 allows the court to direct experts to meet and prepare a joint statement. This will identify:
• Areas where the experts agree.
• Areas where the experts disagree.
• Then the reasoning for any differences in opinions.
This helps to narrow any issues and can help the court focus on the key points that require determination.
Giving Evidence in Court: From Reports to Cross-Examination:
Expert evidence does not always stop at written reports. If a case proceeds to trial, expert witnesses may be required to give oral evidence in court.
Typically, they will be cross-examined by the opposing legal team who will challenge their opinions, assumptions and methodology.
In some cases, the court may adopt a process known as ‘concurrent expert evidence’, also known as ‘hot tubbing.’ This involves both parties’ experts giving evidence together in a discussion format, often with the judge asking questions.
Regardless, the experts are expected to remain calm, professional, and clear in their explanations.
For anyone involved in a dispute, the strength of your expert evidence can play a decisive role in the outcome of your case.
If you require expert guidance or support in a legal dispute, seeking advice from experienced professionals can make all the difference in navigating the complexities of CPR35 and ensuring your case is presented effectively.
For more expert advice on surveying and property matters, check out our range of informative videos on our website or YouTube channel. Harrison Clarke Chartered Surveyors is here to guide you every step of the way!
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