Civil Procedure Rules Committee offer clarification on Expert Evidence

Civil Procedure Rules Committee offer clarification but does not address central issue regarding the length of reports.

The Civil Procedure Rules Committee have released the minutes of their 2^nd November meeting. In the minutes, they provide clarification on the 20-page limit for reports being submitted for cases being dealt with in the English and Welsh Civil Intermediate Track:

“18. A clarificatory amendment concerning expert reports was proposed by expanding rule 28.14(c) with a new (c)(i) and (ii) which are designed to set out what is and is not included within the 20 page limit. New (c)(i) will provide that the expert’s description of the issues on which they are instructed to give their opinion, the conclusions they have reached and the reasons for those conclusions, are included within the 20 page limit; but new (ii) will expressly provide that the expert’s CV and any supporting materials to which the reasons for their conclusions refer, are added to the existing list of items (comprising any necessary photographs, plans and academic or technical articles attached to the report) are excluded.”

However, there is no discussion in the minutes as to the central issues regarding the 20-page limit. Namely that:

• 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
• Expert witnesses are required to meet their full obligations under CPR35, PD 35 and The Guidance for the Instruction of Experts in Civil Claims. This was recently highlighted in the Supreme Court ruling in Griffiths vs TUI which highlighted that experts must provide the full reasoning for their opinion. An arbitrary restriction in page numbers is inconsistent with this.
• 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. Undoubtedly some reports will be less than 20 pages, but many will typically not be, and for good reason.

EWI CEO, Simon Berney-Edwards, said:

“Whilst we welcome the clarification regarding the elements not included in the 20-page limit, there has been no response regarding the central issue of the arbitrary fixing of the length of reports to 20 pages. As we previously stated, it does not always follow that a case is less complex just because it is lower in value. Examples provided by our members indicate that even with these clarifications, experts may struggle to meet their duties under Part 35. This will ultimately impact the proper administration of Justice, the support provided to the courts, and the outcomes for those involved in litigation access to justice. We would welcome engagement with the committee to discuss our concerns.”

The Institute have contacted members for their comments and will be formally responding to the Civil Procedure Rules Committee in due course.