1. Experts ....and how to get the best out of them
Presented by
Mamta Gupta,
Barrister practicing in Personal Injury and Clinical Negligence. 1

2. Why important...
Instrumental - tool to get positive Judgment, whole case can turn on expert evidence
Judge’s reliance on expert evidence [objective]
Costly; Jackson - to limit costs and budget
CPR new requirement to provide estimate
Not easy to get further expert evidence - need permission
Provide ammunition to opposing party;
Approach by Courts to stamp on expert shopping;
Can facilitate settlement 2

3. Selection – CPR 35.1 and 35.4 – Duty to and Power to
Restrict Expert Evidence;
CPR 35.1 – Duty to Restrict Expert Evidence -
Expert evidence shall be restricted to that which is reasonably
required to resolve the proceedings
CPR 35.4 – Power to Restrict Expert Evidence -
No party may call an expert or put in evidence an expert’s report
without the Court’s permission. 3

4. Consider nature of the case - what role will expert play in case?
- Each party to get own report, single joint expert,
Complex issues, - LVI, causation, multiple defendants; technical e.g. EL and CN cases - specific area of expertise required,
Meeting with lay client/Counsel
Multiple experts relied upon by one party - order of reports
Joint expert meeting or mediation
Expert to attend Court to give oral evidence 4

5. Choosing the Right Expert5

6. Choosing the Right Expert
Stage 1
Databases - e.g. APIL, Firm
Counsel/Colleagues
Internet
Experts used in previous cases, reported cases,
Leader in the field
Examples of work - previous cases, other party’s experts 6

7. Choosing the Right Expert
Stage 2
Peruse C.V.
Give Expert a call - discuss the case;
Importance of independence
Assess knowledge of specific subject area
Assess potential performance at Court, in conference with lay client,
Still in practice?
Location - proximity
Availability - holidays 8

8. Clear Instructions
Furnish with all the relevant documents - including other party’s evidence including defence, letter of response, medical records;
Highlight issues in the case [draft specific questions if necessary]
Allow enough time, provide expert with deadline [case plan] 9

9. The instructions referred to in paragraph 3 shall not be
Privilege –
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. 10

10. Privilege is only withdrawn under Rule 35 in respect of the
instructions received by the expert to prepare their report.
If the Court is satisfied that the expert’s report does not state
the substance of all the material instructions, then the Court
may order disclosure of those instructions and related documents.
This was confirmed in the case of Lucas –v- Barking, Havering
and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102.
This case also confirmed that the mere mention of privileged
documents in an expert report does not necessarily waive
privilege in the document. 11

11. Follow up upon receipt of report..
Any concerns, discuss with expert, organise conference with Counsel;
Draft Part 35 questions; addendum report?
Send opposing party’s expert evidence or response and get expert’s comments
Possibly get further comments consolidated into initial report 12

12. 35.6 – Written Questions to Experts
CPR 35.6 –
A party may put to an expert instructed by another party or a single
joint expert ….written questions about his report once only must be
put within 28 days of service of the report unless the Court gives
permission or the other party agrees.
This provision is most useful in fast track cases where it is intended
that the maker of the report will not be called to give evidence.
This is also an important step in any application for a party to be able
to have permission for its own expert, rather than a jointly instructed
expert. 13

13. Careful consideration needs to be given as to whether the
advantages of written questions to the expert
(detailing their position and making it more difficult for
them to change position at trial, together with potentially
highlighting any areas of weakness in their evidence) outweigh
the disadvantage (warning them and their team in respect of
potential weaknesses and lines of cross-examination at trial). 14

14. Where a party has disclosed an expert’s report, any party
35.11 –
Where a party has disclosed an expert’s report, any party
may use that expert’s report as evidence at the trial.
It is not necessary for the Court to give permission -
see Gurnei Consulting Engineers –v- Gleeds Health and
Safety Ltd. [2006] EWHC 43 TCC.
Cross-examination of experts on the contents of their
\instructions will only be allowed if the Court permits it and
the Court must be satisfied that there are reasonable grounds
to consider that the statement in the report is inaccurate or
incomplete. (Practice Direction paragraph 5). 15

15. The following cases are relevant to obtaining further expert evidence:
Daniels –v- Walker [2001] WLR 1382
Cosgrove –v- Pattison [2001] CP Rep 68
Popek –v- National Westminster Bank Plc [2002] EWCA Civ 42
Peet –v- Mid Cant Health Care Trust [2001] EWCA Civ 1703 16

16. Factors held relevant in the case of Cosgrove are:
- Nature of the issues
Number of issues
Reason for requiring a new expert
Amount at stake or the nature of the issues at stake and
their importance
Effect of permitting one party to call further expert evidence
on the conduct of the trial
Any delay caused in the proceedings
Any other special features
The overall justice to the parties in the context of the case 17

17. 35.13 – Consequences of Failure to Disclose a Report
Baron –v- Lovell [1999] TLR September 15th 1999
Court of Appeal – emphasised that holding back expert
evidence until close to trial at best will attract cost penalties and
at worst will prompt the Court to make an Order that the party
cannot rely upon the evidence. 18

18. Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136
CA said Courts would normally order party to disclose report obtained pre-issue as a condition of getting permission to rely on new expert;
Reasoning - limit expert shopping;
Consequences - in Defendant’s favour? 19

19. Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136
The Claimant’s solicitors nominated three orthopaedic surgeons at the
Personal Injury Pre-Action Protocol stage. One of those experts was
selected by the Claimant but their report was never relied on or disclosed.
Shortly before service of the proceedings the Claimant served a report
from a different orthopaedic expert, not one of the originally nominated
experts. The Defendant made an Application for disclosure of the
earlier report as a condition for the Claimant being able to rely on the
later disclosed report. The Court of Appeal stated that they could see
no difference of principle between a change of expert instructed for
the purpose of proceedings pre-issue and a change of expert
instructed post-issue and held that, whilst it remained a matter of
discretion, the making of a Conditional Order is a power which ordinarily
be exercised where a change occurs after the parties have embarked
on a claim under the Protocol. 20

20. Jones v Kaney [2011] UKSC 13 Removal of expert immunity
But expert still immune to claim from opposing party
Experts can insure against risk of claims
Full consequences? - yet to be seen
Positive Judgment? similar position to advocates, lead
to higher standards, compliance with the rules, 21

21. Example of impact of Jones v Kaney [2011] Possible prosecution of Expert witnesses
Experts misled Court as to value of prestige replacement hire cars in credit hire;
Researcher given suspended prison sentence
CEO of AeX asserts over 20,000 cases of dishonest expert evidence;
AG to decide if further prosecution 22

22. Hot Tubbing 23

23. Hot Tubbing Concurrent evidence
Ongoing pilot in Manchester - ‘broadly positive’
Benefits....clearer evidence
Disadvantages....less adversarial 24

24. Experts...and how to get the best out of them
Presented by
Mamta Gupta
+44 (0) 25