In brief - - The definition of an Expert has been clarified
- Guidance is provided on the appointment of Single Joint Experts
- There is a new Statement of Truth and a corresponding Declaration of
Awareness of the rules - Directions are given on written questions to experts.
The details - (Rule 35.2)
The old definition was “A reference to an ‘expert’…..is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings“
The new definition is” A reference to an expert ….is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings“
Comment -The aim of the change is to harmonise the definitions in the Civil and Criminal Procedure Rules.
- Guidance on Single Joint Experts
(Rule 35.4 (3A))
The new rules now provide that in small claims and fast track claims, if
permission is given for expert evidence, permission will normally only
be given for the instruction of 1 expert on a particular issue, i.e. a
Single Joint Expert.
Comment -The aim of the changes is to provide guidance to the
courts and to encourage consistency between different levels of
judges in different parts of the country.
- Revised Statement of Truth and Declaration of Awareness
PD 35 para 2.4
The old Statement of Truth read “I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true and that the opinions I have expressed represent my true and complete professional opinion.”
The new Statement of Truth reads “I confirm that I have made clear which facts and mattersreferred 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.” (Bond Solon italics)
Comment -The aim of these changes has not been articulated, but it seems that there is now a greater onus on experts to make a distinction between facts and matters which are within their own knowledge compared to those that are not. In addition, whereas the old Statement of Truth called for the expert to state that he believed those facts within his knowledge to be true, the new Statement goes further, in that the expert now states that he ‘confirms’ those facts to be true.
In addition to this, the changes introduce a new, compulsory paragraph to be included in every report:
- Declaration of Awareness
Protocol for the instruction of experts to give evidence in Civil
Claims supplementing Part 35, para 13.5.
Experts’ reports must contain statements that they
- Understand their duty to the court and have complied and will continue to
comply with it; and are aware of the requirements of Part 35 and Practice
Direction 35, this protocol and the practice direction on pre-action conduct
Comment -The aim of this change is to address the issue of non-compliance with the existing rules, practice directions, protocol and orders made by judges.
Both the new Statement of Truth and the above Declaration are mandatory, must not be changed and must take effect from 1 October.
- Written questions to Experts
Rule 35.6(1)
The amendment states that parties putting questions to an expert instructed by another party or to a single joint expert must ensure that the questions are proportionate (Bond Solon italics).
Comment - This change appears to address the issue of questions to experts going beyond issues identified in pleadings, bordering on a preparation for cross-examination and also attacking the integrity of experts. Depending on how this amendment is interpreted, it may be that disproportionate questions may attract adverse costs awards.
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