Jim Knight examines the Court's power to restrict expert evidence
A recent amendment to CPR 35.4(2) requires any party seeking permission to rely upon expert evidence to provide an estimate of the costs of the proposed expert evidence, the discipline of the expert and wherever possible the name of the expert.
These requirements apply to all cases whether they were issued before or after 1 April 2013. However, in cases issued after 1 April 2013 this information should in any event be included in costs budgets when and where required.
With regard to cases issued before 1 April 2013 that are not subject to costs budgeting per se the amendment still allows the Court to consider the potential expert(s) costs to be incurred before granting permission to rely on same.
The Court also has the power to limit the amount of the expert fees that can be recovered interpartes. Although this power has been around for some time it was not widely used as there was previously no requirement in the rules for the provision of estimates for expertsâ€™ costs. Following the recent amendment, this power is more likely to be exercised, particularly where the Court is called upon to do so by a potential paying party.
The Rule now reads as follows (the underlining is mine):
(1) No party may call an expert or put in evidence an expertâ€™s report without the courtâ€™s permission.
(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify â€“
(a) the field in which expert evidence is required and the issues which the expert evidence will address; and
(b) where practicable, the name of the proposed expert.
(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.
(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.
(Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)
(4) The court may limit the amount of a partyâ€™s expertâ€™s fees and expenses that may be recovered from any other party.
Just what the â€œestimate of the costs of the proposed expert evidenceâ€ is intended to cover is unclear but it would be safe to assume that the estimate (or estimates in cases involving one or more experts) should cover the preparation of initial reports, responses to queries, amendments to reports, updated reports (where considered appropriate), the joint statement process and attending Trial.
In the present climate solicitors would be well advised to be fully prepared for all upcoming case management conferences by knowing the name and potential cost of the expert(s) to be instructed to avoid the prospect of being refused permission to rely on same.