Proposals to the Ministry of Justice and the Civil Procedure Rules Committee for amendments to CPR 35, PD 35 and the Protocol made by the Experts Committee of the Civil Justice Council in the light of its consultation exercise (Part 2)
3, Agenda
1. Agenda for experts meetings can play a significant role in experts meetings. It has been suggested that there are relatively few problems in agreeing and following agenda in cases involving construction and surveyors, but that there have been problems in agreeing and following agenda for meetings in medical cases. Do you agree? Are there any changes that you would like to see to CPR Part 35, PD 35 or the Protocol?
CPR 35.12 provides that courts may direct discussions between experts and that courts may specify the issues which experts must discuss. Such meetings are not compulsory, but are commonly held. Neither CPR 35.12 nor the PD deals with agenda, although para 18 of the Protocol deals with discussions between experts and agenda.
Generally experts discussions in advance of trial work well. They are a huge improvement upon the pre-CPRs position when experts frequently only met and started discussing cases at the door of the court.
Agenda can play a vital role in defining issues discussed at meetings of experts. Agenda which contain questions to be answered by experts are often a good way of achieving this. In many disciplines, agenda work well, but the experience of members of the committee and responses to the consultation process indicate that there are problems in agreeing agenda in clinical negligence cases. For example, Leigh Day, in their response, wrote
Expert discussions are not currently achieving what was intended, namely:
1. the proper definition of issues
2. the early resolution of issues
3. reduction in Court time required in determining issues.
Instead, the Agendas (and thus discussions) have become too complicated by lack of focused questions and the inclusion of irrelevant questions. The process has become expensive, time consuming and slow and, in turn in some cases, is adding to rather than reducing the length of trial. Expert discussions are being held which are not necessary.
The Bar Council observed that
agendas in [clinical negligence] claims can become overly long and complex in cases of very high value. Whilst such claims can be both factually and medically complex and it is inevitable that the agenda(s) will have to be reasonably substantial, reasonable bounds can be exceeded.
There is a strong argument that agenda for experts meetings should be limited to pleaded issues and not evidence. Others say that experts should discuss all outstanding issues whether pleaded or not. Anecdotally, though, there seems to be a problem in identifying outstanding issues in clinical negligence cases, but no such problem in other types of cases involving experts.
One suggestion put forward at the CDF meeting was that cost capping in relation to agenda might prevent solicitors from preparing over-lengthy, disproportionate agenda.
The view of the committee is that solicitors, after consulting their experts should be encouraged to reach agreement about agenda and, in the absence of agreement about agenda, meetings should take place with two agenda.
The view of the committee and several consultees is that the most helpful proposal in relation to agenda is the incorporation into the PD of model directions proposed by Masters Ungley and Yoxall, who both have considerable experience in clinical negligence cases. These directions are the result of discussions which they have had with a High Court users group which they have set up. All of the consultees who mentioned these model directions approved of them (Bar Council, Leigh Day, MDU).
We propose that the following paragraphs (closely modelled on the Yoxall/Ungley directions) should be inserted into the PD.
(1) Discussions between experts are not mandatory. Parties and their solicitors should consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding a discussion.
(2) The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) The extent of the agreement between the experts;
(ii) The points of disagreement and short reasons for disagreement;
(iii) Action, if any, which may be taken to resolve the outstanding points of disagreement; and
(iv) Any further material points not raised and the extent to which these issues are agreed.
(3) If a discussion between experts is to take place, unless otherwise agreed by all the parties solicitors, after consulting with the experts, a draft agenda which directs the experts to the remaining issues relevant to the experts discipline as identified in the statements of case should be prepared jointly by the claimants solicitors and experts and sent to the defendants solicitors for comment at least 35 days before the agreed date for the experts discussions.
(4) The use of agenda is not mandatory. Solicitors should consult with the experts to ensure that agenda are necessary and, if used, are reasonable in scope. The agenda should assist the experts and should not be in the form of leading questions or hostile in tone. Agenda must include a list of the outstanding issues in the preamble.
(5) Defendants solicitors should within 21 days of receipt agree the agenda, or propose amendments.
(6) Seven days thereafter, all solicitors should use their best endeavours to agree the agenda. Points of disagreement should be limited to matters of real substance and not semantics or matters which the experts could resolve of their own accord at the discussion. In default of agreement, both versions should be considered at the discussions. Agenda, when used, should be provided to experts not less than seven days before the date fixed for discussions.
(7) Unless otherwise ordered by the Court, or unless agreed by all parties, including the experts, the parties solicitors should not attend such discussions. If solicitors do attend, the experts may if they so request, hold part of their discussions in the absence of the solicitors. Where solicitors do attend, they should not normally intervene, save to answer questions put to them by the experts or to advise them upon the law.
(8) A statement should be prepared by the experts dealing with (2) (i) (iv) above. Individual copies of such statements should be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements should be provided to the parties solicitors thereafter.
(9) Experts should give their own opinions to assist the court and should attend discussions on the basis that they have full authority to sign such a joint statement. The experts should not require the authorisation of solicitors or counsel before signing such a joint statement.
(10) If an expert significantly alters his or her opinion, the joint statement should include a note or addendum by that expert explaining the change of opinion.
(Note that if these paragraphs are inserted into PD35, the Protocol will need to be amended.)
PIBA suggested an amendment to CPR 35.12(4) which prohibits reference at trial to the discussions between experts in the absence of agreement between the parties. PIBA suggested that this rule should be amended to allow reference to such discussions in written questions before trial and/or at trial itself even in the absence of agreement between the parties, if the court is satisfied that such would serve the interests of justice.
The Experts Committee was unanimously opposed to this suggestion. It would add to the risk of satellite litigation. It would increase the difficulty of experts reaching agreement if what they said was at risk of being revealed in court. It would be harmful to the full and free exchange of information. What was said could be taken out of context. Further, unless all experts meetings were taped, there could be problems in keeping accurate records of precisely what was said.
4, Questions to experts
2. CPR 35.6 provides that written questions may be put to experts, but that they must be for the purpose only of clarification of the report. Is this criterion still appropriate? Are questions to experts being put in a disproportionate way, simply as a first bite of cross-examination? If they are, is this wrong? Alternatively, would a widening of the criterion be appropriate?
Should questions to experts go beyond clarification, and be a preparation for cross-examination? There is a view that it may be preferable for experts to be cross-examined by written questions than in court and that questions should be permitted to go beyond simple clarification. At present, under CPR 35.6(2) the court may give permission for questions which have a wider purpose. A consultee and a majority of the experts committee favoured the retention of clarification criterion. The concept of proportionality is an important backstop when it comes to questions to experts, but it is frequently ignored. If the requirement that questions be for the purpose of clarification were abolished, this would open the flood gates for more disproportionate questioning.
On the fundamental policy decision as to whether CPR 35.6 should be widened, a majority of the committee were not in favour, although it was argued by the minority that this may already be happening in practice. However this is an issue for the Rules Committee to decide.
The committee agreed that
- questions should only relate to issues identified in pleadings;
- questions should not be used to attack the integrity of experts; and
- the PD should specifically make reference to the risk of costs if questions asked are disproportionate.
We propose that PD para 5 be amended by adding a new para between the existing paras 5.1 and 5.2, in the following terms
(5.1A) Questions to experts should
(a) only relate to issues identified in the pleadings;
(b) not be used to attack the integrity of an expert; and
(c) be proportionate within the meaning of CPR 1.1(2). In the event that they are not proportionate the court may order the party asking the questions to pay the costs of those questions.
5, Enforcement following Non-compliance with Rules, Orders etc
3. A balance has to be struck between the need for compliance with orders and the CPRs on the one hand and flexibility, proportionality and justice on the other hand. Some people have argued that if judges took a stricter line when there has been non-compliance with an order or the CPRs (e.g. by refusing to allow a party to rely upon an experts report), parties would be more likely to comply with orders. Do you agree that there is a problem? Are there any changes that you would like to see to CPR Part 35, PD 35 or the Protocol? Should there be a provision that an experts report which does not comply with CPR 35 or PD 35 should not be admitted as evidence without the permission of a judge?
The Academy of Experts and the Expert Witness Institute have referred to problems of wide spread non-compliance with CPR 35, the PD and the Protocol. They complained that although the bench should be a strong enforcer of compliance with the rules, breaches are frequently ignored. They urged that, where there has been a significant breach, parties should not be permitted to rely on expert evidence.
However, there was general agreement among consultees and the Experts Committee that there was nothing wrong with the enforcement provisions and that if they were complied with, the bulk of problems would disappear. The view of the Experts Committee is that the issue of non-compliance is something which should be considered in a wider context and that there is a need for guidance and training.
The only proposal that we make is that experts reports should have a mandatory statement that the writer is aware of CPR35, PD35 and the Protocol and has complied with them.
6, Protocol
4. How is the Protocol for the Instruction of Experts to give evidence in civil claims working? Do you consider that any amendments are needed?
The vast majority of consultees were of the view that the Protocol was working well and that there was no need for any amendment. The committee endorse this view.
7, Low speed impact whip lash claims
5. Over the last year it has been said that there has been an increasing number of cases in which defendants insurers have argued that the claimant could not have suffered whip lash because of the low speed of the vehicles on impact. Do you consider that any changes to CPR Part 35, PD 35 or the Protocol are necessary as a result of this increase?
The vast majority of consultees who have any experience in this area are of the view that such claims have not resulted in any need for amendments to CPR 35, the PD or the Protocol. The committee endorse this view.
8, Experts statement of truth
6. Is there any need to vary the form of the experts statement of truth? (PD35 para 2.4)
No consultee saw any need for any amendment. The only proposal that we make is that experts reports should have a mandatory statement that the writer is aware of CPR35, PD35 and the Protocol and has complied with them see 6 above.
Nic Madge
7.12.2007
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