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1

Cases covered by costs management
Costs management was brought in on 1 April 2013. The rules on which cases are covered were changed on 22 April 2014. The current position (r 3.12) is:

• Most multi-track cases are governed by costs management
• Part 8 claims are not generally included
• Cases with a value of £10 million or more are not included
• Cases governed by fixed costs (fast track PI claims) and scale costs (patent cases in the Intellectual Property Enterprise Court) are not included

2

CPR, r 3.12(1A) says costs management "will apply to any other proceedings (including applications) where the court so orders."

• Fast track cases are not usually governed by costs management (by the main rule)
• Court may by a specific order apply costs management to a fast track claim
• Or to a Part 8 claim, or a Part 7 claim worth more than £10 million

3

Remember

When looking at provisions in the CPR, always note phrases like "where the court so orders" or "unless the court orders otherwise". These give the court a discretion to do the reverse of what the main thrust of the rule dictates. In r 3.12 the words allow the court to extend the scope of costs management to cases not normally covered. Other rules use words of this kind to provide a "get out clause". Where words like these are used, questions/answers in the assessment which use obligatory language ("must"), or which say the court will "always" do something, are technically wrong. Often it is the difference between "may" and "must" that is being tested.

4

The following deals with cases where costs management applies.

Costs budgets

In claims where estimated costs do not exceed £25,000, the parties only need to file page 1 of the costs budget (APA para 16.13, and page 183).

Where costs of a party exceed £25,000 the other 4 pages of the prescribed form must be completed.
• It sets out past costs and estimated future costs for 10 "stages" in the litigation, plus "contingencies" (APA para 16.12)
• It has to be verified by a statement of truth (APA para 16.14)

5

Failure to file costs budget

Litigants in person

Agreement of costs budgets

Failure to file costs budget
Party is restricted to court fees (APA para 16.15, CPR, r 3.14).

Subject to any application for relief from sanctions, see LGS 5.


Litigants in person
Do not have to file costs budgets (PD3E, para 7.8).


Agreement of costs budgets
The parties should exchange costs budgets (usually before the first CMC) and seek to agree each other's budget. Where agreement is reached, the court will simply record the agreement (APA para 16.19).

6

Approval of costs budgets

Use of costs budgets in case management

Approval of costs budgets
In the absence of party agreement, the court will review the costs budgets, apply the proportionality test in CPR, r 44.3(5) (see LGS 8), and will only approve budgets where the costs at each stage are proportionate.


Use of costs budgets in case management
In making case management directions (eg at a CMC) the judge will have regard to any available costs budgets (CPR r 3.17(1)). The estimated cost of complying with a proposed direction may lead a judge to refuse the proposal and to substitute a more proportionate direction.

7

In addition to costs budgets

In addition to costs budgets:
(a) The parties are obliged to state the estimated costs of proposed disclosure directions in their disclosure reports (used in multi-track claims). See APA page 343, entry 3.
(b) When asking for a direction granting permission to rely on expert evidence, there is an obligation to provide an estimate of the costs of the proposed expert evidence (CPR, r 35.4(2); APA para 35.24).

8

Costs management conference

Costs management conferences

These are hearings purely for managing costs, eg to revise a costs budget. To keep costs down, these are usually dealt with by telephone or in writing.

9

Cost management orders

By CPR r 3.15 under such an order the court will:

(a) record the extent to which costs budgets are agreed between the parties;
(b) record the court's approval of costs budgets by making revisions

Costs consequences of costs budgets

Costs consequences of costs budgets
(a) Cases with a costs management order
• When assessing costs on the standard basis the court will have regard to the last agreed or approved costs budget
• Will not depart from that budget except for good reason

(b) Cases without a costs management order
• When assessing costs a factor is the last approved costs budget
• A bill of costs exceeding the last costs budget by 20% may be taken as evidence that the costs in the bill of costs are unreasonable or disproportionate (in which case they will be disallowed or reduced).

10

Expert evidence

Lay opinion
Inadmissible, save as a way of conveying complex facts
Civil Evidence Act 1972, s. 3(2):

It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

11

Requirements for the admission of expert evidence
For expert evidence to be admissible in civil proceedings, the following requirements must be satisfied:

1. There must be a matter which is outside the ordinary experience of the tribunal of fact (or "necessary" or "reasonably required"). eg

• Medical
• Employment consultants in PI claims
• Land valuation
• Quality of goods sold
• Defects in rented accommodation

Folkes v Chadd (1782) 3 Doug KB 157
Engineer permitted to explain the effect of silting on a harbour

Liddell v Middleton [1996] PIQR P36
Road accident reconstruction experts
• Commentary on everyday facts: inadmissible
• Genuine scientific analysis of the evidence, measurements etc: admissible

12

E Evidence

Not admissible 35.11

• Experts on the interpretation of commercial contracts: this is a question of law for the judge (JP Morgan v Springwell [2006] EWHC 2755 (Comm))
• Experts on the credibility of witnesses (Daly v Milton Keynes 27/6/2013)

13

In which cases do you use Experts?

2. It must be a matter on which there is a recognised body of expertise governed by accepted rules and principles

• An expert cannot give expert evidence outside their area of expertise (SPE International v Professional Preparation [2002] EWHC 881, WB 35.3.4)

14

To comply with CPR and instruct expert

4. The party seeking to rely on the expert’s evidence must comply with the relevant rules of court under CPR, Part 35, including obtaining a direction granting permission to rely on the expert’s evidence at trial under r 35.4(1).

15

Colin Scott Ltd is suing Derek Evans for damages for breach of an implied term in a contract for the sale of a quantity of cloth that the goods sold would correspond to sample.
Colin Scott Ltd intend to call Fred Watkins, a purchasing manager with 30 years’ experience in the fabrics trade, to say that he conducted tests on the sample and the consignment when it was delivered, producing stated results. Fred will also say the tests are standard ones used in the industry to check the quality of this type of cloth.
(a) Can Colin Scott Ltd rely on Fred's evidence?
Apply the 4 criteria set out above
(b) Would it matter if Fred had asked his assistant, Anne Harris, to conduct the tests, that she had told him her results, which he then noted for the purpose of forming his view on the quality of the fabric?
This part of Fred’s evidence is hearsay. Admissible by CEA 1995, s. 1.
(c) Would it matter that Fred had looked up statistics in an unpublished trade report on how to interpret the relevant test results when considering his conclusions for his report?
Here the expert is making use of parts of the corpus of expertise in this technical area. Only experts are allowed to do this.

-

16

Independence
Field v Leeds City Council [2000] 1 EGLR 54
An employee of the Council was permitted to give expert evidence on disrepairs in a landlord and tenant case.

This means there is no outright ban on the use of an expert who is not independent of the party instructing them. The expert must still be able to comply with their duty to the court. At its core, this means giving impartial expert opinion to assist the court, untainted by any relationship / payment terms between the expert and the party instructing them.

17

Technical note 1: Independence (on syllabus) WB 35.3.4
Liverpool Roman Catholic etc v Goldberg (No 3) [2001] 1 WLR 2337 (cited in WB 35.3.4)

A professional relationship outside the litigation between a party and an expert (they were members of the same set of tax chambers) meant that the expert lacked the necessary independence.
This decision was doubted in:
R (Factortame Ltd) v Secretary of State for Transport (No 8) [2003] QB 381 (not cited in WB)

Hussein v William Hill [2004] EWHC 208 (QB) (cited in WB 35.3.4)
C instructing 2 doctors who were friends of C resulted in reports being disregarded.

Toth v Jarman The Times, 17 August 2006 (cited in WB 35.3.4)
The mere fact an expert has a conflict of interest does not prevent the expert being used as a witness. Rather, the question is whether the conflict prevents the expert remaining independent. The presence of a conflict of interest must be disclosed, and may well mean the court will refuse to give permission for the use of the expert.

18

Technical Note 2: Expert Inspecting property owned by the other side (off syllabus)
The court has the power under CPR, r. 25.1 (off syllabus) to make directions / orders between the parties:

• That one party must give access to the other to premises, machinery etc relevant to the proceedings
• Includes access to experts as well as the party / solicitor
• Includes taking measurements, photographs, conducting tests etc

Typically such directions are made at a CMC.

Purpose is to ensure equality of arms. The party owning the premises has unlimited access. It is only fair that other parties can also inspect, run tests etc before trial.

19

Technical Note 3: Medical Examination (off syllabus)
Medical examinations (off syllabus) are different from inspecting property. A direct order that C must submit to a medical examination by D’s medical consultant is regarded as unacceptable because it forces C to submit to a technical assault (or worse).

Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
If a claimant refuses a reasonable request by the defendant for a medical examination for the purpose of preparing a medical report in the litigation, the court can order a stay of the claim until the claimant consents. A stay may be granted if
(a) the request for examination is reasonable
(b) C’s refusal would prevent the just determination of the claim

20

Technical Note 4: Ultimate Issue Rule (on syllabus)

This was abolished by the CEA 1972, s. 3(3).

21

Pre-action Instruction of Experts

PD Pre-action Conduct and Protocols, para 7:

• Parties should be aware that the court must give permission before expert evidence can be relied upon (see CPR 35.4(1)); and
• That the court may limit the fees recoverable.
• Many disputes can be resolved without expert advice or evidence.
• If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.

22


Rules on Experts After Proceedings Begin

Directions
CPR, r 35.4:

(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2).

23

Restricting the cost of expert evidence WB 35.1.1
CPR, r 35.1:

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

24

Restricting the cost of expert evidence

CPR r 3.17(1):
When making any case management decision, the court will have regard to any available [costs] budgets of the parties and will take into account the costs involved in each procedural step.

CPR r 35.4:
(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence ...
(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

(3A) Where a claim has been allocated to the small claims track or fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.

25

PD 35 part 1

PD 35, para 1:
Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by only one expert.

26

Fixed Cost Reports

Fixed Cost Reports
In whiplash soft tissue injury personal injury fast track claims, the orthopaedic report must be a fixed cost report: CPR, r 35.4(3B) and (3C).

27

Seeking Permission for Experts

CPR r 35.4:
(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence will address; and
(b) where practicable, the name of the proposed expert.

28

Case Management Directions about Experts
Case management directions on experts are essential (r 35.4(1)), dealing with:

(a) Whether any expert evidence is allowed
(b) Whether experts will attend trial
(c) Whether parties can instruct their own experts or the appointment of a single joint expert
(d) Disclosure of reports

29

Different Tracks, Different Approaches

Small claims and fast tracks:


Multitrack?

• usually single joint expert
• usually only the report is used at the hearing (no live expert evidence)

Multi-track:
• Far more likely to permit each party to instruct their own experts
• Expert evidence commonly given live by calling expert witnesses

30

Multi-track expert directions [Syllabus topic 12]
PD 29, para 5.3(4):

At a CMC the court is likely to consider 'what expert evidence is reasonably required in accordance with rule 35.1 and how and when that evidence should be obtained and disclosed'.

31

PD 29, para 4.10, when considering multi-track directions on its own initiative the court's general approach is:

(4) to give directions for a single joint expert on any appropriate issue unless there is a good reason not to do so
(5) unless paragraph 4.11 (below) applies, to direct disclosure of experts’ reports by way of simultaneous exchange on those issues where a single joint expert is not directed
(6) if experts’ reports are not agreed, to direct a discussion between experts for the purpose set out in rule 35.12(1) and the preparation of a statement under rule 35.12(3)

32

PD 29 4:11

PD 29, para 4.11:
If it appears that expert evidence will be required both on issues of liability and on the amount of damages, the court may direct that the exchange of those reports that relate to liability will be exchanged simultaneously but that those relating to the amount of damages will be exchanged sequentially.

33

Failure to Disclose Expert's Report
CPR, r 35.13:

PD 29, para 7.4(1):

A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

The court will not allow a failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional.

34

Low Velocity RTA WB 35.1.1
This is code for fraud, or gross exaggeration. The argument by D is that the vehicles collided at very low speeds, so C cannot possibly have suffered the severe injuries they are claiming.
Kearsley v Klarfield [2005] EWCA Civ 1510

• D may be given permission to obtain its own medical report on causation
• Only if D alleges C is fabricating their injuries
• D must have identified this as an issue both pre-action and in the Defence
• D must file and serve a witness statement on this
• Within 21 days of the Defence

35

Changing experts shortly before trial WB 35.0.5
Not looked on favourably. Strictly:

• permission is required (CPR r 35.4(1))
• is a variation of the directions timetable (CPR, r 29.5; PD 29, para 6(1)-(5))
• solicitors have a duty to check the availability of experts (WB 35.0.5)
• reasons why the expert is not available must be given (WB 35.0.5)
• adjourning trial is a serious factor against granting permission (WB 35.1.1)

36

Single Joint Expert OR Agreed (Jointly Selected) Expert

Single Joint Expert

A single joint expert is instructed to prepare a report for the court on behalf of 2 or more parties (including the claimant) (CPR, r 35.2(2)).
Being jointly instructed means:
• Both parties send instructions to the expert
• Both contribute to the expert’s fees
• Both parties should be sent the report by the expert

37

Jointly Selected (or Agreed Expert)

• Opponent is involved in choosing the expert (from a list of potential experts sent by the Instructing Party)
• Instructing Party alone sends instructions to the expert
• And pays
• Expert sends the report to the Instructing Party (only)

38

Small claims and fast track: preference for single joint expert

PD 28, para 3.7(4): Directions agreed by the parties [in fast track claims] should … where appropriate contain provisions about …. the use of a single joint expert, or in cases where the use of a single joint expert has not been agreed, the exchange and agreement of expert evidence (including whether exchange is to be simultaneous or sequential) and without-prejudice discussions of the experts.

39

All tracks: power to direct single joint expert
CPR, r 35.7:

(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.
(2) Where the parties who wish to submit the evidence (‘the relevant parties’) cannot agree who should be the single joint expert, the court may –
(a) select the expert from a list prepared or identified by the relevant parties; or
(b) direct that the expert be selected in such other manner as the court may direct.

40

Criteria for deciding on use of single joint expert
PD 35, para 7: When considering whether to give permission for the parties to rely on expert evidence and whether that evidence should be from a single joint expert the court will take into account all the circumstances in particular, whether:


(a) it is proportionate to have separate experts for each party on a particular issue with reference to –
(i) the amount in dispute;
(ii) the importance to the parties; and
(iii) the complexity of the issue;
(b) the instruction of a single joint expert is likely to assist the parties and the court to resolve the issue more speedily and in a more cost-effective way than separately instructed experts; ...

41

Obtaining own expert evidence after receipt of single joint expert's report WB 35.7.6
Daniels v Walker [2000] 1 WLR 1382

• where the objections to the SJE's report are not fanciful
• and not capable of being cleared up by answers to written questions (r 35.6)
• especially where a substantial sum is in dispute
• and where refusing may be unjust
• having regard to the overriding objective
• and having regard to any delay by the applicant
• and discouraging "expert shopping"
• court may grant permission (as required by r 35.4) to rely on a new expert

Peet v Mid Kent Healthcare [2001] EWCA Civ 1703
Laid down a "good reasons" test rather than "not fanciful"

42

Duty to the Court
CPR, r 35.3:
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.


PD 35

PD 35, para 2.2. Experts:
• must provide objective, unbiased opinions, on matters within their expertise
• must not assume the role of an advocate
• 'over-exposure' to the client's case through acting as their expert in multiple cases can result in acting as an advocate (Cairnstores v Aktiebolaget Hassle [2002] EWCA Civ 1504, WB 35.3.4)
National Justice Compania v Prudential [1993] 2 Lloyd's Rep 68 WB 35.3.3

Laid down 7 principles to be followed by experts, now in Part 35 and PD 35.

43

Form of reports APA Civil Procedure para 35.35
PD 35, para 3.1 and 3.2 lists 10 detailed requirements on format and contents.

PD 35, para 3.1 An expert's report should be addressed to the court and not to the party from whom the expert has received instructions.

CPR, r 35.10(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

r 35.10(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

44

Statement of Truth: PD 35, para 3.3

“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.”

45

Rights of Experts

Serve Court Order on Expert
PD 35, para 8: Where an order requires an act to be done by an expert, or otherwise affects an expert:


Expert's right to ask Court for Directions

• The party instructing that expert must serve a copy of the order on the expert.
• The claimant must serve the order on a single joint expert.



CPR, r 35.14 allows an expert to file written requests for directions for the purpose of assisting them to carry out their functions.

46

Written Questions to clarify reports
Putting questions to experts
CPR, r 35.6

(1) A party may put written questions about an expert's report (which must be proportionate) to –
(a) an expert instructed by another party; or
(b) a single joint expert appointed under rule 35.7.

(2) Written questions under paragraph (1) –
(a) may be put once only;
(b) must be put within 28 days of service of the expert’s report; and
(c) must be for the purpose only of clarification of the report,

unless in any case –
(i) the court gives permission; or
(ii) the other party agrees.

PD 35, para 6.1: a copy of the questions must be sent to the other parties.

47

Expert's answers
(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

PD 35, para 6.2: the party who originally instructed the expert must pay the expert's fees for answering written questions.

48

Failure to answer
(4) Where –
(a) a party has put a written question to an expert instructed by another party; and
(b) the expert does not answer that question,

the court may make one or both of the following orders in relation to the party who instructed the expert –
(i) that the party may not rely on the evidence of that expert; or
(ii) that the party may not recover the fees and expenses of that expert from any other party.

49

Without prejudice discussions between experts
CPR r 35.12(1) provides that the court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –

(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.

PD 35, para 9.2: Purpose is to agree and narrow the expert issues: not to settle the case.

PD 35, para 9.3: the parties must seek to agree an agenda for the expert discussion.

PD 35, para 9.4: lawyers should not (unless ordered by the court or agreed) be present.

50

Under r 35.12(3) and PD 35, paras 9.2 and 9.6, the court may direct that following a discussion between the experts they must prepare a statement for the court setting out:

(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.

51

Note r 35.12(5):

Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

52

Legal Professional Privilege: Experts’ Reports

Before Exchange / Disclosure
Worrall v Reich [1955] 1 QB 296


After Disclosure
But, once an expert’s report is disclosed the position changes:

• When it is obtained, an expert’s report will be a confidential document produced for the dominant purpose of giving or receiving legal advice relating to litigation which is at least contemplated.
• Therefore it is protected by litigation privilege

Jackson v Marley Davenport Ltd [2004] 1 WLR 2926
• Drafts of an expert’s report are also privileged, and disclosure of the final version of the report does not waive privilege in earlier drafts.

53

After disclosure

PD 35, para 2.5:
“If, after producing a report, an expert’s view changes on any material matter, such change of view should be communicated to all parties without delay, and when appropriate to the court.”

54

Privilege and Instructions to Experts
Before the report is disclosed, the instructions given to the expert are privileged.
CPR, r 35.10(3), (4):

(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions –
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the expert,
unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.
PD 35, para 5. Such an order will only be made if it is in the interests of justice.

55

Privilege and Jointly Selected Experts

Carlson v Townsend [2001] 1 WLR 2415

Pursuant to the PI Pre-action Protocol C gave D the names of 3 medical practitioners for the purpose of preparing a medical report. D objected to consultant 1. C instructed consultant 2, but did not like consultant 2’s medical report. Instead of going to consultant 3, C then went to consultant 4, and obtained a medical report from consultant 4, which C disclosed to D. D applied for C to disclose the report of consultant 2.

Held:
Not disclosing consultant 2’s report was not a breach of the Protocol, and the court could not override C’s legal professional privilege over consultant 2’s report. Consultant 2 was only instructed on a joint selection basis. There would have been no breach of the protocol if C had then gone to consultant 3 for a report.

However, obtaining the report from consultant 4 was a breach of the Protocol. Various sanctions, whether in directions, costs or interest might be imposed, and permission was likely to be appropriate allowing D to go to its own consultant. One sanction not available would be to override C’s privilege in consultant 2’s report (Simon Brown LJ at [22(4)]).



Everything in this case seems to have been rejected by the CA as merely directed to whether the report was on a joint instruction in the almost identical case of:

56

Edwards-Tubb v JD Wetherspoon plc [2011] 1 WLR 1373 at [15]

C obtained a report from Expert 1,using the pre-action protocol system of asking D if D objected to any of the experts on a list, then instructing Expert 1, who was not objected to by D. C got Expert 1’s report, and decided not to use Expert 1, but got a 2nd report from Expert 2 (who was not on the list).


Held:
Where a party seeks to change experts, even where Expert 1 was only involved at the pre-action protocol stage, the court would usually order that permission to call Expert 2 would be conditional on disclosure of Expert 1’s report.

57

Expert Evidence at Trial
Usually no live expert evidence

CPR, r 35.5(1):
(1) Expert evidence is to be given in a written report unless the court directs otherwise.

58

Small claims and Fast Track: test for live expert evidence
CPR, r 35.5(2):

Multitrack

Small claims and Fast Track: test for live expert evidence
CPR, r 35.5(2):
(2) If a claim is on the small claims track or the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

Multi-track
Especially on high value claims, the restriction in r 35.5(1) is readily relaxed.

59

Single Joint Expert
• With a single expert, usually there is no scope for dispute, and the expert’s view will be the expert evidence in the case
• Therefore usually only the report is required at trial, not the expert in person

Peet v Mid-Kent Healthcare Trust [2002] 1 WLR 210
It might be appropriate to order attendance of a single joint expert for cross-examination where the expert delivers his report shortly before the trial, or where the expert has not considered all the written questions put to him.

60

Separately instructed reports

Using other side's report

Often both have to attend trial to resolve conflicts, unless this has been resolved by without-prejudice discussions between the experts.

Use of other side's report at trial
CPR, r 35.11:
Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.


Shepherd Neame Ltd v EDF Networks (SPN) plc [2008] Bus LR Digest D43
Rule 35.11 gives an absolute right to use such a report, untrammelled by any discretion.

Edwards-Tubb v JD Wetherspoon plc [2011] 1 WLR 1373, Hughes LJ at [32]
Said the above result “may sometimes be appropriate” where the earlier report is incontestable, or an opinion which the judge can safely consider without seeing the author. In other cases, he said, the court should be ready to require a party relying on such a report to call the expert. Shepherd Neame was not cited.

61

Weight of Expert Evidence at Trial
Coopers Payen Ltd v Southampton Container Terminal [2004] 1 Lloyd’s Rep 331
Lightman J said at [67] that if there is no other direct evidence, the evidence given by a single joint expert is likely to be compelling.

A judge may depart from it only in exceptional circumstances and after fully explaining the reasons. It is different if an expert, including a single joint expert, gives evidence on an issue of fact on which there is lay evidence. Where both the expert and the lay witness are credible, there is no rule of law or practice requiring the judge to prefer the evidence of the expert.

62

Two more cases re experts

Smith v Hammond [2010] EWCA Civ 725 WB 35.0.5
A judge is not permitted to substitute his own experience over the evidence of an expert on a matter requiring expertise.

Hatton v Connew [2013] EWCA Civ 1560 WB 35.0.5
The parties must be given the opportunity to XX the expert on views expressed by the expert (judge and expert having a conversation about expert issue on a site visit).

Flannery v Halifax Estate Agencies [2000] 1 WLR 377 WB 35.0.5
Judge must give supportable reasons for preferring one expert over another.

Armstrong & Connor v First York [2005] EWCA Civ 277 WB 35.0.5
A judge can prefer lay factual witnesses over expert evidence, but must give reasons to justify that view.

63

Expert evidence outside CPR Part 35
Rogers v Hoyle [2015] QB 265, CA WB 35.0.5

The claimants were the executors of a passenger who died when a vintage biplane crashed while executing an aerial loop. A report was compiled by the Department of Transport's Air Accident Investigation Branch, which is required to produce reports after all aircraft accidents. The pilot objected to the claimants adducing the report.

(a) The report did not comply with the technicalities in CPR Part 35: it was not addressed to the court; it did not have a CPR statement of truth etc. These requirements did not apply, because CPR, r 35.2(1) says: "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 proceedings." The report was prepared for the purpose of investigating the cause of the crash, not for any proceedings.
(b) The report included reported statements of fact. These were admissible as hearsay under the CEA 1995, s. 1.
(c) The report included opinions on facts the evaluation of which required no expertise. These were inadmissible opinion.
(d) The inadmissible parts were left in: the judge at trial is able to disregard these without the need to redact the report.
(e) The report did not identify who compiled it. This did not matter because all the investigators used by the AAIB were very well qualified as experts.
(f) The report included statements of technical opinion about the cause of the crash. This was admissible expert evidence.
(g) The judge was right not to exclude the report under the discretion to exclude in CPR, r 32.1. The circumstances in which it is appropriate to exercise the discretion to exclude under r 32.1 are limited. Here, the report was independent, and the evidence it contained could only be obtained from other sources with considerable difficulty.

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CIVIL EVIDENCE ACT 1972


2 Rules of court with respect to expert reports and oral expert evidence

(3) Notwithstanding any enactment or rule of law by virtue of which documents prepared for the purpose of pending or contemplated civil proceedings or in connection with the obtaining or giving of legal advice are in certain circumstances privileged from disclosure provision may be made by rules of court—
(a) for enabling the court in any civil proceedings to direct, with respect to medical matters or matters of any other class which may be specified in the direction, that the parties or some of them shall each by such date as may be so specified (or such later date as may be permitted or agreed in accordance with the rules) disclose to the other or others in the form of one or more expert reports the expert evidence on matters of that class which he proposes to adduce as part of his case at the trial; and
(b) for prohibiting a party who fails to comply with a direction given in any such proceedings under rules of court made by virtue of paragraph (a) above from adducing in evidence . . . ,except with the leave of the court, any statement (whether of fact or opinion) contained in any expert report whatsoever in so far as that statement deals with matters of any class specified in the direction.
(4) Provision may be made by rules of court as to the conditions subject to which oral expert evidence may be given in civil proceedings.
(5) Without prejudice to the generality of subsection (4) above, rules of court made in pursuance of that subsection may make provision for prohibiting a party who fails to comply with a direction given as mentioned in subsection (3)(b) above from adducing, except with the leave of the court, any oral expert evidence whatsoever with respect to matters of any class specified in the direction.
(6) Any rules of court made in pursuance of this section may make different provision for different classes of cases, for expert reports dealing with matters of different classes, and for other different circumstances.
(7) References in this section to an expert report are references to a written report by a person dealing wholly or mainly with matters on which he is (or would if living be) qualified to give expert evidence.

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3 Admissibility of expert opinion and certain expressions of non-expert opinion

(1) Subject to any rules of court made in pursuance of . . . this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section “relevant matter” includes an issue in the proceedings in question.

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5 Interpretation, application to arbitrations etc. and savings

(3) Nothing in this Act shall prejudice—
(a) any power of a court, in any civil proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion; or
(b) the operation of any agreement (whenever made) between the parties to any civil proceedings as to the evidence which is to be admissible (whether generally or for any particular purpose) in those proceedings.