Amendments to CPR Practice Direction 35.11

Related Sector: Expert Witness

At the end of November 2017, amendments to CPR Practice Direction 35.11 (CPR PD 35.11) came into force.

 

These amendments implement a number of recommendations made by the Civil Justice Council’s (CJC) report - Concurrent expert evidence and ‘hot-tubbing’ in English litigation since the ‘Jackson Reforms’. These changes will affect the way expert witnesses will be required to give evidence in civil courts.

Key points from the amendment include:

• Concurrent expert evidence is not suitable in every case.
• Courts can use a combination of concurrent expert evidence and traditional cross examination.
• Expert evidence can be presented on an issue by issue basis and there is more flexibility.
• The court sets the agenda or approves what the parties have prepared for the concurrent evidence.
• Questions may try to elicit evidence on any issue even that omitted from the initial presentation as well as testing the evidence.

Since the Civil Justice Council’s report on concurrent expert evidence, the Civil Procedure Rules Committee had been considering how to amend PD35.11, the direction which deals specifically with expert evidence in court.

There had been speculation that Concurrent Expert Evidence, was to become the default procedure when experts gave evidence. However this has not materialised. The new CPR PD 35.11 is about flexibility. Rather than making concurrent expert evidence the default position, the amendments now make it possible for expert witnesses to give their evidence in at least three different ways:

• Traditional cross examination;
• Concurrent Expert Evidence, for which the process is set out in PD35.11(4);
• “any appropriate manner”, including an issue-by-issue cross examination process.

For the full text of the amended PD35.11, please click here

This change affects all expert witnesses giving evidence in the civil courts and experts now need to be familiar with all three identified methods.

We recommend that you keep in close touch with your instructing solicitors, to find out what orders have been made by the court about expert evidence. While solicitors have an obligation to provide you with relevant court orders as a matter of course (Guidance for instruction of experts 2014), in reality they rarely do so.

All our expert witness courses have been updated to reflect these changes. If you are interested in attending our courses to refresh your expert witness skills and ensure that you are up to date with the current procedural rules that affect your duties as an expert, we offer the following public courses in the next quarter:

Civil Law and Procedure   -  8th & 9th February 2018 in London or 22nd & 23rd February 2018 in Manchester. For more details click here
Courtroom Skills  -  9th January 2018 in London or 20th February 2018 in Manchester. For more details click here
Masterclass in Courtroom Skills  -  11th April 2018 in London. For more details click here

Mark Solon
Director | Bond Solon

This article was published on 19th December 2017.