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• gives a new definition of ‘expert’
• defines a ‘single joint expert’ for the first time 
• provides, in small claims track or fast track cases, that permission will normally only be given to call expert evidence on a particular issue from one expert 
• requires that written questions to experts should be proportionate

Changes to Part 35 – Practice Direction

The first important change is that the declarations which experts give in their reports are being strengthened. So, the old requirement that the report should “contain a statement that the expert understands his or her duty to the court, and has complied and will continue to comply with that duty” is changed to:

contain a statement that the expert:  

I understand my duty to the court, and have complied with that duty; and  

I am aware of the requirements of Part 35, the practice direction and the Protocol for Instruction of Experts to give Evidence in Civil Claims

Plus a new Statement of Truth

The mandatory statement of truth has also been changed, from:

I declare the contents of this report are true to the best of my knowledge and belief and understand it will be placed before the court

To:

I confirm that I have made clear which facts and matters referred 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.

WillisPalmer templates will now be altered to reflect the above changes.  Please ensure the new declaration is included in any reports that you use that are not on WillisPalmer templates.     

The use of Single Joint Experts

It is now for the court to decide on whether a Single Joint Expert is appointed or separate experts for each party. To achieve this, the court will decide whether it is proportionate to have separate experts for each party, and whether the instruction of a single joint expert is likely to help the court to resolve the issue more speedily and in a more cost-effective way than with separately instructed experts.

In addition, where a claim has been allocated to either the small claims track or the fast track, where permission is given it will usually be given for evidence from just one expert witness on the particular issue.

Experts’ Discussions

Finally, the Rules Committee has added an entirely new section on Discussions. This includes the ruling that, unless ordered by the court, or agreed by all parties and the experts, neither the parties nor their legal representatives may attend experts’ discussions.

If the legal representatives do attend they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law.

How to find out more  

We would ask all Contractors to follow the link below to ensure they are familiar with these new rules should they be questioned in Court. 

For further information please visit:      http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part35.htm#IDAIDI5B