Scottish Civil Justice Council publish consultation analysis

The Scottish Civil Justice Council have published their consultation analysis regarding the development of the new Ordinary Procedure Rules.

The consultation which ran from the 18^th July to the 30^th November 2023 was undertaken by the Rules Rewrite Committee of the Scottish Civil Justice Council, with the aim of supporting the comprehensive rewrite of the court rules that support civil proceedings in Scotland.

The Institute responded to the consultation raising a concern that their first report which set out the overarching principles, had stated an intention to set out the duties of an Expert Witness.  However, much of this, including the draft provisions which had been included in that report, had been removed from the consultation draft; leaving minimal information relating to Expert Evidence.

We are therefore pleased to see this concern addressed with all the points raised by the Institute being noted within the analysis.

EWI Chief Executive Officer, Simon Berney-Edwards, said:

“We are extremely pleased to see the committee take on board our feedback. We believe that providing greater clarity on the requirements for Expert Witnesses will benefit the judicial system in Scotland by improving the quality of Expert Evidence. We are particularly pleased to see the consideration of Expert Discussions and Joint Statements within the new rules as the production of the Joint Statement can be a helpful tool for the judge in narrowing the issues and in encouraging settlement before cases go to trial.”

You can access the full analysis using the link below, but the key points concerning Expert Evidence are as follows:

Suggestions on additional Rules

“39.Without yet knowing fully where the Committee would intend to draw the line between the procedures retained and those revoked, respondents suggested that the new rules might also usefully include:

• ….Expert witnesses being required to have a meeting to identify the points where they agree or disagree…..
• ….Joint statements of the issues in a case”

Expert information

“188. Rule 61 (1) requires a declaration as to the “accuracy” of the information provided in the report, but that will be contingent on the accuracy of information provided to the expert witness by others. That declaration might more appropriately cover confirmation that an unbiased opinion is being made which complies with that experts duties to the court. The suggestions made were:

• To include “a standard declaration to be used by all expert witnesses” to drive up the quality of all reports;
• Adding provision for lodging questions;
• Adding provision for encouraging meetings between experts; and
• Adding provision for the option of using a single joint expert

189. A time limit is set for lodging the experts note, but not the report itself. The late lodging of lengthy reports would create unfairness.

190. There is a need for clarity on “opinion” evidence, the form of declaration, and any circumstances that could stop cross examination”

The analysis document notes that the next steps will be:

• Drafting Instructions – having considered the analysis provided by this paper the Rules Rewrite Committee will a) agree the direction of travel b) confirm their instructions for developing the next version of the draft rules and c) summarise those views in a Consultation Response paper for publication online;
• Revised Draft Rules – once drafted, the next version of these draft rules will be tabled with the Committee for their consideration and approval; and
• Consultation – the Committee will then consult again on that next version of these draft rules in late 2024.

We will, of course, keep members informed of developments.