Guidance for Expert Witnesses submitting reports for cases in the new Civil Intermediate Track

As we have been highlighting to members, important changes to the length of expert reports will be coming into force from the 1st October 2023 for cases being dealt with through the newly created intermediate track which will be used to handle most civil claims in England and Wales worth between £25,000 and £100,000.

We have raised our concerns to the Civil Procedure Rules Committee, particularly around the lack of clarity as to what must be counted within the 20 pages.

The minutes of the Civil Procedure Rules Committee on the 6th October state: “The sub-committee is also considering some other issues that have been raised outside of the consultation, including for example…. the length of expert reports." 

However, we have still received no further guidance as to what Experts should do in the meantime.

We are sharing a handful of the questions and answers we have received from members. We will continue to update this page and will issue further guidance as it becomes available.

LAST UPDATE: 17th November 2023

Does this apply to the Criminal courts too?

No, this only applies to Civil Cases.

Are there any limitations on the types of Civil Cases it applies too?

The following types of case are excluded from the FRC regime and must be allocated to the multi-track:

• Mesothelioma and asbestos-related lung disease claims
• Clinical negligence claims unless both breach of duty and causation have been admitted and the claim is suitable for the intermediate track
• Child or vulnerable-adult abuse claims
• Claims which could be resolved by jury trial (specifically cases that the court could order to be tried by jury if satisfied there is in issue a matter set out in section 66(3) of the County Courts Act 1984 or section 69(1) of the Senior Courts Act 1981) (for example, false imprisonment, malicious prosecution or fraud)
• A claim against the police involving an intentional or reckless tort, or relief or relief or remedy in relation to the Human Rights Act 1998. This exclusion does not apply to a road accident claim arising from negligent police driving, an employer’s liability claim, or any claim for an accidental fall on police premises.

How will I know if the case is being dealt with in the intermediate track?

We assume that this will be made clear at the point of Instruction. However, if you are in any doubt, you should contact the Instructing Party to seek clarification.

I have been told that I will only be asked to give Oral Evidence?

Within the new Intermediate Track Practice Directions, there is permission for "oral evidence or reports or both" (7.2(4)(a)). This means that it could be possible that you may be expected to give your expert evidence orally and a report may not be required. We are unclear whether this may be directed at more straightforward cases. We are concerned that this could leave Experts vulnerable in the stand if they have not suitably prepared for such a case and would strongly recommend any expert witness consider documenting their opinion to ensure their preparation for trial is sufficiently robust. 

Where you are asked only to give your evidence orally, in the practice directions, it states at 3.9e “(i) if experts’ reports are not agreed, to direct a discussion between the experts for the purpose set out in rule 35.12(1) and the preparation of a report under rule 35.12(3).” Therefore, if you are not expected to provide a report, you can expect that you will be instructed have a meeting of experts and be required to submit a joint statement. If you have not been involved in one of these before, why not book onto our webinar.

I've been asked to be a Single Joint Expert?

In the practice directions, it states at  3.9d that where parties have simply submitted the statements of case, the court will “give directions to use a single joint expert unless there is a good reason not to do so”. It is therefore possible that we could see a rise in the number of Single Joint Expert instructions. If you have been instucted as a Single Joint Expert before, why not book onto our webinar.

I am concerned, the complexity of the subject matter/cases I deal with usually takes me well over 20 pages?

Seek advice from your instructing party.

The rules states “unless the court orders otherwise”. You may find instructing parties willing to apply to the court to allow a longer report giving the circumstances of the case.

Are appendices included in the 20 pages?

This is unclear, but our reading of the rule is that some of them could be. The rule states: “excluding any necessary photographs, plans and academic or technical articles attached to the report.”

This would seem to suggest that those or similar items (such as diagrams) are not included in the 20 page limit, but that other standard appendices such as your CV could be.

Can I just re-format my reports to use smaller fonts/single spacing?

We would still recommend a font size of 11 or 12 and 1.5 spacing. Remember, you still need to present your evidence well. We cannot imagine any judge would look favourable on any report being submitted with a font size less than 10.

What else can I do?

Remember your ABCs - Accuracy, Brevity, Clarity.

You still need to comply with your Part 35 duties, so you do not want to be in a situation where you are criticised for not including a range of opinion or considering all the facts of the case.

But consider your report. Consider whether you can articulate your opinion by using accurate, short and clear language.

Consider some of your standard areas of your report to see if they can be condensed.

For example, could the wording of any standard methodologies be made more concise?

Why not review your CV, creating a more concise version for intermediate track reports which can be edited as required to highlight your areas of expertise for the case in question. For example, rather than a full list of publications, you might highlight a selection which are particularly relevant to your case. You could also highlight where someone might want to find out more about you referencing your own website, your profile on the EWI website, or a LinkedIn profile.

Monitoring the situation

We will be monitoring the impact of these rule changes on members. If you have a story to tell, please do get in touch.