Case management control of exert evidence
Does the case merit an expert report?
In this issue we continue our review of the recent changes to the provisions governing expert evidence in civil cases in England and Wales. This time we look at:
- Case management
- Costs budgets
- Proportionate costs recoverability
After a defence has been filed, the court will now send out a new-style notice of proposed allocation. It will require parties to cases in the fast track and multi-track to file directions questionnaires, directions and costs budgets within 28 days of service of the notice.
The new questionnaire will replace the old allocation questionnaire and is similar in format, but it reflects the amendments to the overriding objective and CPR 35.4. For standard basis costs, under CPR 44, only costs proportionate to the matters in issue will be allowed. The new provisions on costs budgets are designed to fit with the new provisions of CPR 35.4 in relation to costs estimates when seeking permission to adduce expert evidence.
The new directions questionnaire (Form N181) contains questions at section E relevant to experts. It asks:
- Do you wish to use expert evidence at the trial or final hearing?
- Have you already copied any experts’ report(s) to the other party(ies)?
- Do you consider the case suitable for a single joint expert in any field?
- Please list any single joint experts you propose to use and any other experts you wish to rely on. Identify single joint experts with the initials ‘SJ’ after their name(s). Please provide justification of your proposal and an estimate of costs.
These questions are similar to those asked by the old questionnaire (N150), but the requirements to say whether the case is suitable for an SJE and to provide justification and an estimate of costs are new. However, the questions about oral evidence at trial have been removed.
The additional questions highlight the court’s strong desire to see the appointment of an SJE considered in every case. It is particularly apt given the results of our recent Expert Witness Survey 2013 (published in our September 2013 Your Witness newsletter) which show a fall in the average number of SJE instructions received annually from a high of 15 in 2009 to just 8 in 2013. This is something the courts will want to see reversed.
Another new addition to the questionnaire is a note stating, somewhat pointedly, that:
There is no presumption that expert evidence is necessary, or that each party will be entitled to their own expert(s). Therefore, the court requires a short explanation of your proposals with regard to expert evidence.
In the current climate of stricter controls on costs, the court can now give greater scrutiny at the allocation stage to the need for expert evidence. There will, no doubt, be some pressure on judges to apply stricter controls on the expert issues to be considered and associated expert costs, or to disallow expert evidence altogether on grounds of proportionality.