Proposals to the Ministry of Justice and the Civil Procedure Rules Committee for amendments to CPR 35, PD 35 and the Protocol made by the Experts Committee of the Civil Justice Council in the light of its consultation exercise (Part 1)
Executive summary
In June 2007, the Experts Committee of the CJC wrote, with a series of questions, to APIL, FOIL, CDF, the Association of District Judges, the Council of Circuit Judges, the Law Society, the Bar Council, the Medical Defence Union, MASS, the Expert Witness Institute, the Academy of Experts, CRFP, the Commercial Bar Association, Association for Victims of Medical Accidents, London Solicitors Litigation Association, CLAN, the Association of British Insurers, the Local Government Association, the Personal Injury Bar Association, the National Health Service Litigation Authority and the BMA to consult on possible changes to CPR 35, PD 35 and the Protocol. All responses have been collated and appear in the Appendix to this report.
General
The vast majority of consultees agreed that CPR 35, the Practice Direction and the Protocol are generally working satisfactorily. No one advocated fundamental reform. The main problem expressed by consultees is non-compliance with the existing Rules, PD and Protocol and orders made by judges. The Experts Committee agrees.
After detailed discussion, the Experts Committee makes the following recommendations;
1, Definition of expert
Although there is no compelling need for an amendment to CPR 35.2 (the definition of expert), the Rules Committee may wish to consider whether there should be a minor amendment to harmonise the definition with that in the Criminal Procedure Rules.
2, Single joint experts
There is more inconsistency than is desirable between different judges and different courts in the appointment of single joint experts. As proposed following consultation in 2005, PD35, para 6, should be amended by inserting a number of non-exhaustive considerations that courts should take into account when deciding whether to give permission for the evidence of single or separate experts. The suggested amendment is based on existing practice and case law and does not seek to modify established practice.
3, Agenda for experts meetings
The experience of members of the committee and responses to the consultation process indicate that there are problems in agreeing agenda in clinical negligence cases. PD 35 should be amended by inserting steps to be taken by solicitors and experts which will lead to more effective agenda being agreed in more cases. The new paragraphs are modelled on directions proposed by Masters Ungley and Yoxall, who both have considerable experience in clinical negligence cases. Their suggested directions are the result of discussions which they have had with a High Court users group which they have set up.
4, Questions to experts
A minority of consultees suggested that questions to experts should go beyond clarification, and be a preparation for cross-examination. A majority of the Experts Committee rejected this approach, but the committee agreed that this is a matter of principle which the Rules Committee might wish to consider. In any event the committee agreed that PD35 para 5 should be amended to provide that questions to experts should only relate to issues identified in pleadings and should not be used to attack the integrity of experts. Further, the PD should specifically make reference to the risk of adverse costs awards if questions asked are found to be disproportionate.
5, Enforcement following non-compliance with Rules, Orders etc
There was general agreement among consultees and the Experts Committee that there is nothing wrong in the enforcement provisions and that if they are complied with, the bulk of problems will disappear. However PD 35 should be amended to provide that experts reports should have a mandatory statement that the writer is aware of CPR35, PD35 and the Protocol and has complied with them.
Proposals to the Ministry of Justice and the Civil Procedure Rules Committee for amendments to CPR 35, PD 35 and the Protocol made by the Experts Committee of the Civil Justice Council in the light of its consultation exercise
The Experts Committee of the Civil Justice Council includes a circuit judge, a district judge, a barrister representing the Bar Council, a solicitor nominated by the Law Societys Civil Litigation Committee, representatives from APIL, FOIL, the Expert Witness Institute and the Academy of Experts and an observer from the Council for the Registration of Forensic Practitioners together with employees of the Legal Services Commission and the Ministry of Justice. All have significant experience of civil litigation involving the use of experts.
As part of their programme of keeping the Civil Procedure Rules under review, the Ministry of Justice (formerly the Department for Constitutional Affairs) and the Civil Procedure Rules Committee asked the CJC Experts Committee to consider what changes should be made to strengthen Part 35, its Practice Direction and the Protocol for the Instruction of Experts to give evidence in civil claims. Before discussing these provisions in detail, and submitting our proposals to the Civil Procedure Rules Committee, we carried out a consultation exercise. In June 2007, we wrote, with a series of questions to the following bodies, namely APIL, FOIL, CDF, the Association of District Judges, the Council of Circuit Judges, the Law Society, the Bar Council, the Medical Defence Union, MASS, the Expert Witness Institute, the Academy of Experts, CRFP, the Commercial Bar Association, the Association for Victims of Medical Accidents, the London Solicitors Litigation Association, CLAN, the Association of British Insurers, the Local Government Association, the Personal Injury Bar Association, the National Health Service Litigation Authority and the BMA.
Responses were received from
- The Academy of Experts and the Expert Witness Institute (Joint Response) (TAEEWI)
- The Association of District Judges (two responses, one from DJ Mildred, (ADJ) the other from DJ Tetlow (ADJ2))
- The Association of Personal Injury Lawyers (APIL)
- Association for Victims of Medical Accidents (AVMA)
- AXA Insurance (AXA)
- The Bar Council (BarC)
- Beachcroft LLP (formerly Beachcroft Wansbroughs), solicitors (Beachcroft)
- The BMA (at present, they have no comments)
- HHJ Paul Collins CBE, Designated Civil Judge, London (Collins)
- Commercial Bar Association (COMBAR)
- The Forum of Insurance Lawyers (FOIL)
- HHJ Richard Holman, Designated Civil Judge, Manchester (Holman)
- The Law Society (LawSoc)
- London Solicitors Litigation Association (LSLA)
- Medical Defence Union (MDU)
- NHS Litigation Authority (NHSLA)
- Personal Injury Bar Association (PIBA)
In addition, HHJ Nic Madge who chairs the committee, met personally with Master Yoxall (Yoxall) in early August and went through the questions posed in our consultation paper with him. He also took part in a discussion meeting organised by the Academy of Experts on June 13th when some thirty or so experts from a wide range of disciplines expressed their views about the CPRs and expert evidence. (Academymeeting). He also attended a meeting of the Clinical Disputes Forum on November 22nd, chaired by Mr Justice Langstaff, when there was a discussion about experts meetings.
It goes without saying that the committee is extremely grateful to all who have responded for their contributions.
HHJ Madge has collated the responses. They are set out in Appendix 1.
We set out below the questions which we asked in the consultation process and the committees views in relation to the various issues which we raised.
1, General
1. Do you consider that CPR Part 35, PD 35 and the Protocol are, in general, working satisfactorily? Apart from the areas covered below, are there any changes that you would like to see to CPR Part 35, PD 35 or the Protocol? Is there any need to vary the definition of expert in CPR 35.2?
The vast majority of consultees agreed that CPR 35, the Practice Direction and the Protocol are generally working satisfactorily. No one advocated fundamental reform. The main problem expressed by consultees is non-compliance with the existing Rules, PD and Protocol and orders made by judges. The Experts Committee agrees.
The definition of expert
CPR 35.2 provides
35.2 Interpretation
A reference to an expert in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.
The Academy of Experts and the Expert Witness Institute suggested that the definition of expert needs modifying. They say that the definition in the Criminal Procedure Rules at Rule 33.1 is more helpful and a suitably modified version of that could be employed in the CPR.
Criminal Procedure Rules 33.1 provides
33.1 Reference to expert
A reference to an expert in this Part is a reference to a person who is required to give or prepare expert evidence for the purpose of criminal proceedings, including evidence required to determine fitness to plead or for the purpose of sentencing.
The Academy of Experts and the Expert Witness Institute suggested the following revised wording:
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 civil proceedings.
Most members of the Experts Committee thought that the existing definition was satisfactory, and that there was no compelling need for an amendment to CPR 35.2. However, this is an issue which the Rules Committee may wish to consider. Should there be harmonisation of the definition with the Criminal Procedure Rules?
2, Single Joint Experts
In 2005, at a number of meetings, we discussed the apparent inconsistency of courts when deciding whether to allow the evidence of single or separate experts. Our discussions started with anecdotal evidence of inconsistency between different levels of judges and between judges in different parts of the country.
It is inevitable that there are differences of approach. The Civil Procedure Rules give a discretion which is designed to be exercised flexibly. Different cases require different approaches. What may be proportionate in one case may be disproportionate in another case. However our members talked about uncertainty as to what was likely to be ordered because of differences of approach by judges and of some courts where separate experts would never be allowed in a particular discipline but other courts where they would inevitably be allowed in the same discipline. It was said that this results in some solicitors engaging in forum shopping. Notwithstanding decisions in Daniels v Walker [2000] 1 WLR 1382 and Peet v Mid Kent Healthcare NHS Trust [2001] EWCA Civ 1703, it was felt that there was relatively little guidance from the Court of Appeal. Others said that the guidance given in those cases was not uniformly followed.
At our meeting on 8th November 2005 we discussed a paper on the subject written by Mark Harvey , a solicitor with expertise in personal injury litigation, and Robin Oppenheim , a barrister with experience in clinical negligence litigation. The paper included a proposed set of criteria which it was suggested should be considered by courts when deciding whether to appoint separate or single experts. These were drawn from existing case law in this area and were designed to improve the consistency of decision-making according to existing law and practice.
As a result of that discussion we consulted on a modified version of those criteria, asking three questions:
1. Do you agree that there are inconsistencies between different courts and different judges when giving permission to call expert evidence?
2. Would some guidance be helpful?
3. If you think that some guidance would be helpful, do you have any comments on our suggested considerations?
We received responses from FOIL, APIL, the London Solicitors Litigation Association, the Association of District Judges, the Clinical Disputes Forum, the Law Society, and a number of Specialist Bar Associations including the Technology and Construction Bar Association, the Personal Injury Bar Association, the London Common Law and Commercial Bar Association and Falcon Chambers.
A majority of consultees felt that there was more inconsistency than was desirable. Several consultees indicated that they did not think that guidance would be helpful, but detailed consideration of a number of these responses indicated that the authors were in fact trying to go behind the Woolf reforms and re-argue the whole CPR approach to expert evidence.
At our meeting on 12th January 2006, having regard to these responses, we concluded that it would be helpful for the Practice Direction to CPR Part 35 to be amended to include a number of non-exhaustive considerations that courts should take into account when deciding whether to give permission for the evidence of single or separate experts, based on existing practice and case law without seeking to modify established practice. Having regard to the responses of the consultees, we modified the criteria so that they take the form of a proposed amendment to PD 35 para 6. That proposal was approved by the Civil Justice Council and sent to the Lord Chancellor with a request that it be submitted (with a brief paper and the summary of the consultation responses) for consideration by the CPR Rules Committee. (A copy of that paper is contained in Appendix 2.) The CPR Rules Committee decided to defer consideration of this until its current review of Part 35.
Accordingly, in the current consultation exercise, we asked
2. Last year we consulted in relation to SJEs. After considering responses and further discussions we proposed an amendment to PD35. That proposal is attached to this letter. The CPR Rules Committee decided to delay consideration of the proposed amendment pending the general review of CPR 35. Do you have any comments in relation to SJEs or the proposed amendment?
The responses received were mixed. Some consultees supported our proposed amendment (e.g. Bar Council, MDU, NHSLA). Others agreed the general approach of non-exhaustive considerations, while proposing amendments to our draft (AXA, Beachcroft, COMBAR, FOIL, Leigh Day and TAEEWI). Some opposed it saying, e.g. that it contained matters which judges already consider (ADJ). Some responses reflected the particular interests of consultees, rather than the neutral interests of justice. Others seemed to be seeking to move backwards, away from the CPR reforms. One consultee suggested that it is rarely the case that a single joint expert is appropriate in multi-track cases, whilst another would like to see a SJE as the norm in all litigation, incl. PI and clin neg and a heavy onus on those asking for separate experts.
Some consultees (e.g. APIL) seemed to think that our proposed amendment sought to create a presumption in favour of SJEs. This is not the case. The proposed amendment is simply a guide to assist courts and encourage consistency. It is consistent with what Lord Woolf said in Daniels v Walker , namely that parties should always think about SJEs.
The Experts Committee consider that there is still a problem of lack of consistency. We still believe that an amendment to PD35 would lead to greater consistency, but having regard to the further responses that we have received have made minor amendments (suggested by the ADJ and COMBAR) to our original proposal.
We propose the following amendment to PD35, para 6, by inserting before the existing material
6.1 When a party seeks permission to call an expert or put in evidence an experts report, the party and the court shall consider whether or not it is appropriate for such evidence to be given by a single joint expert within the meaning of CPR 35.7.
6.2 Where a claim has been allocated to the small claims track or the fast track, there is a rebuttable presumption that, if permission is given for expert evidence, it will only be given for evidence from one expert on a particular issue.
6.3 Where a claim has been allocated to the multi track, the court, when considering whether to give permission for the parties to call experts or put in evidence experts reports from separate experts or single experts, shall take into account all the circumstances and in particular:
a) The value of the claim and whether or not it is proportionate to have separate experts for each party on a particular issue with reference to the amount at stake and the importance to the parties and the complexity of the issue;
b) Whether the instruction of a single expert is likely to assist the parties to resolve the issue more speedily and in a more cost-effective way than separately instructed experts;
c) Whether the expert evidence is to be given on an issue of liability (including causation) or quantum;
d) Whether there is likely to be a range of expert opinion or where it may be difficult for a single joint expert to express an opinion, or whether the expert evidence falls within a substantially established area of knowledge which is likely to be the subject of agreement;
e) Whether a party has already instructed his own expert on the issue in question and whether or not that was done in compliance with any relevant pre-action protocol;
f) If one party has already instructed his own expert, whether questions put in accordance with CPR 35.6 are likely to remove the need for the other party to have his own expert
g) Whether the nature of the expert evidence required is such that questions put to a single expert may not conclusively deal with all issues that may require testing prior to trial;
h) Whether the nature of the expert evidence required is such that a conference may be required with the expert and other witnesses which may make instruction of a single expert impractical;
i) Whether there are any issues concerning legal professional privilege which make the instruction of a single expert impractical; and
j) If a single expert is appointed, whether there is a significant risk that a party will instruct his own shadow expert, and, if so, the implications for costs, the likelihood of resolution of the issue and the use of court resources.
6.4 [existing para 6]
APIL suggested that where parties instruct separate experts, identical letters of instruction should be sent to different experts in the same discipline. No other consultee made this suggestion. There was no support among the members of the Experts Committee for this suggestion.