New rule will impact the quality of expert evidence

On 1 October 2023, new rules governing the new intermediate track being used to handle the majority of civil claims with a value of between £25k-£100k came into force.

The rules have faced much criticism, with key sector stakeholders raising concerns about the transparency of decision-making and the extent to which a full consultation on all the issues has been undertaken. Fair points given that the most recent consultation finished on the 8 September, yet any changes will not be implemented until next year with little clarification as to how to make things work in the interim.

I confess that our initial review of the draft rules identified no changes to Part 35 and, therefore, we made an incorrect assumption that expert evidence was unaffected. But on further review, we found that rather than making an amendment to Part 35, signalling a significant change for experts, this was added to Part 28 amendments.

We sent a letter to the Civil Procedure Rules Committee strongly urging them to reconsider the introduction to Rule 28.14 (3), which states that unless the court orders otherwise: ‘any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report.’

We knew we were unlikely to get this rule removed at the last minute, but hoped to gain greater clarification in the short term. As yet, we have had no response.

What is the problem?

This rule has been introduced without any consultation. More importantly, there appears to be no consideration of the impact on the work of expert witnesses, or indeed the likely impact on the quality of expert evidence.

We assume that the logic is that cases between £25k and £100k are less complex and, therefore, expert evidence can be restricted to save costs. We believe this logic is flawed.

• Lower value cases are not always straightforward. We have had significant feedback from members across a range of professions providing examples of low-value cases that are nonetheless complex in their nature requiring review of significant volumes of evidence.
• This is an arbitrary restriction which lacks clarity. Different types of reports have different requirements, which may vary according to profession, whether opinion is required on breach or quantum, and whether there are differences in factual or expert evidence to address. There is also a lack of clarification as to what is excluded from the 20-page limit. Some suggest it might not include all appendices. Our reading is that it is only necessary photographs, plans and academic or technical articles that are not included. Other standard appendices such as an expert’s CV would be.
• CPR35 requirements make it difficult to adhere to the limit. Expert witnesses are required under CPR35 to present their reports in a well-structured, logical format to assist lawyers and the court in understanding the issues in the case and their opinions. Expert reports have a number of mandatory inclusions meaning many pages will be used before the expert opinion is incorporated.
• Experts must consider ALL the facts and a range of opinions. To arbitrarily restrict the amount of text that a well-written report requires is unrealistic. If there are numerous facts on which an expert needs to base their opinion, then the report must be able to accommodate this. All of this is in place to support the court in decision-making.

Considerations for solicitors

Firstly, we have noted that the rules states ‘unless the court orders otherwise’. You may find that expert witnesses seek further clarification, and you may consider applying to the court to allow a longer report given the circumstances of the case.

Secondly, there is a risk that experts leave out information which will lead to the need for more questions of clarification from both their instructing party and through Part 35 questions.

In our view, expert witnesses should ensure reports are concise and clear – no longer than is necessary to assist lawyers and the court. But it is for experts to determine the length based on their instructions, expertise, opinion and the details of the case.

We believe that the introduction of this rule will compromise the quality of expert evidence and good decision-making. Ultimately, this will have an impact on the administration of justice, the support provided to the courts and the outcomes for those involved in litigation.

Simon Berney-Edwards is the chief executive officer of the Expert Witness Institute
ewi.org.uk/