Expert Witness – CPR 35 is Gospel

Related Sector: Expert Witness

Civil Procedure Rule (CPR) 35 should never stray too far from an expert witness’ mind, particularly when in the report writing phase of their instruction.

Master David Cook’s judgment in the recent case of Pal v Damen [2022] EWHC 004697 (QB) serves as a useful reminder for expert witnesses regarding the format of an expert report and how it is likely to be viewed in court if it does not comply with the basic provisions of CPR 35.

What are the facts of this case?

Following an operation that took place in Belgium, the claimant brought an action for clinical negligence against the defendants – the surgeon who performed the operation and the clinic that the surgeon worked at. Both defendants disputed the claimant’s choice of jurisdiction and therefore made an application under CPR 11, whereby the claimant had to establish that she had an arguable case against each defendant under Belgian law.

Each party instructed a separate expert on Belgian law. In his judgment, Master Cook expressed criticism of the report that was relied upon by the surgeon, stating that it did not comply with CPR 35 and therefore that it carried little weight in support of that defendant’s case.

The Master ruled that there was an arguable case against the surgeon, but not the clinic.

The requirements of an expert’s report

The basic requirements of an expert’s report are clearly set out in Practice Direction 35, clause 3.2.

Let’s take a moment to remind ourselves of the contents of this clause.

An expert's report must:

(1) give details of the expert's qualifications;

(2) give details of any literature or other material which has been relied on in making the report;

(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;

(4) make clear which of the facts stated in the report are within the expert's own knowledge;

(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;

(6) where there is a range of opinion on the matters dealt with in the report –

(a) summarise the range of opinions; and

(b) give reasons for the expert's own opinion;

(7) contain a summary of the conclusions reached;

(8) if the expert is not able to give an opinion without qualification, state the qualification; and

(9) contain a statement that the expert –

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.

What were the Master’s findings in relation to the expert reports?

The Master found the clinic’s expert report to be CPR 35 compliant, stating that ‘he was the only expert who properly considered the factual background and contractual documentation in a balanced and logical manner. I agree with his opinion that there is only one logical result on the basis of the contractual documentation.’

However, he expressed a wholly different view of the surgeon’s expert, commenting that his reports ‘failed to comply with practically every requirement [of CPR 35]. It appeared to me that he was acting as an advocate on behalf of his client’s position, which is perhaps not surprising as he acts for the surgeon in Belgium. He did not give any proper consideration to the evidence…and did not fully consider the available documentary evidence with the inevitable result that he did not provide a balanced opinion covering the range of possible opinions. The most obvious illustration of this tendency was his abrupt observation that [the clinic’s expert] report “contains a lot of mistakes and incorrect information”’.

As a result of this non-compliant expert report, Master Cook concluded that he could ‘place no weight upon the evidence of the [surgeon’s expert]’ and therefore ruled in favour of the claimant, finding that the claimant had an arguable case against the surgeon.

What can expert witnesses learn from this case?

The role of an expert witness is to provide independent assistance by way of an objective unbiased opinion on a particular issue/set of issues or facts in a case, to help resolve a dispute. It is therefore essential that in giving this opinion they remain fully aware of their CPR 35 duty, which lies first and foremost to the court and never to a party in the dispute.

To avoid the same criticism as in this case, experts are well advised to ensure that their reports always adhere to the requirements of CPR 35.

Author: Meera Shah