As we are nearing the second anniversary of the introduction of the Civil Procedure Rules (CPR), it is time to look at how some of the reforms are working in practice. One linchpin of the new system is the court’s power to limit the use of experts in court proceedings.
The appointment of one (or more) experts
per party vastly increased the cost and duration of proceedings. Other countries, notably France and Germany, where court-appointed experts are the norm, fared much better in terms of costs comparison. Would a single expert system work in England too? A recent report by the Lord Chancellor’s Department on ‘Civil Justice Reform Evaluation’, 2 April, 2001, suggests that under the old system, 25% of cases involved expert evidence. On a court service analysis of claims under the new system, 36% of trials involved expert witnesses, of which 22% were instructed by one party. Does this point to a growing acceptance of the single expert system?
Changes
Prior to reform, an expert’s duties were defined in the ‘Ikarian Reefer’ case (National Justice Compania Naviera SA v Prudential Assurance Co ([1993] 2 LLR 68).
Part 35 of the CPR restricts expert evidence to that “which is reasonably required to resolve the proceedings”. What is considered reasonable in this context is for the court to decide. The expert is under a duty to assist the court and this duty overrides any obligation to the instructing party. In other words, the expert must point out facts and conclusions, even though they may be unfavourable to the party that instructed him. Under the old system it was not unusual to see diametrically opposed experts’ opinions persuasively worded. One of them had to be wrong, but which one was for the court to decide.
One new procedure is that the court can direct that evidence is to be given by a single joint expert. The choice of that expert is ideally left to the parties, but where the instructing parties cannot agree, the court may select an expert from a list prepared by the parties. This makes for a number of potential problems in practice.
