On 26 April 1999, new Civil Procedure Rules (CPR) was introduced in the UK in response to Lord Woolf’s report on the civil justice system. Lord Woolf identified excessive cost, delay and complexity as the key problems facing the civil justice system. The role and use of expert evidence was identified as not only one of the two major causes of these problems, but was identified as the “subject that caused the most concern”. This was not surprising given that parties to litigation were all too often using too many experts, many of whom being not only superfluous to requirement but irrelevant to the issues in dispute. These problems were further compounded by the fact that the independence of expert witnesses was often questionable given that they were appointed by, instructed by and paid by one party.
In response to this situation, the Woolf reforms included the introduction of the single joint expert. CPR 35.7 (1) provides: “Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only”. However the CPR offered no guidance as to the circumstances in which the court should direct that evidence be given by a single joint expert. The courts have since attempted to fill that gap in the CPR.
The CPR Code for Experts addresses the key problems listed early as follow:
- The use of expert evidence was placed under court control in that litigants required permission from the Courts before they could rely on expert evidence, which was restricted in amount to that reasonably necessary to resolve the dispute;
- Parties were to be encouraged, as far as possible, to use one jointly appointed expert – the single joint expert;
- Parties were encouraged to obtain expert evidence via a mutually acceptable expert, albeit not a single joint expert, early on in the litigation under the pre-action protocols;
- Expert witnesses now owed a primary – that is, an overriding – duty not to the party appointing them, but to the Court.
CPR 35.1 provides that “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”. CPR 35.4 gives the court specific power to restrict expert evidence:
- No party may call an expert or put in evidence an expert’s report without the court’s permission;
- When a party applies for permission under this rule he must identify the field in which he wishes to rely on expert evidence, and where practicable the expert in that field on whose evidence he wishes to rely;
- If permission is granted under this rule it shall be in relation only to the experts named or the field named;
- The court may limit the amount of the expert’s fees and expenses that the party who wishes to rely on the expert may recover from any other party.
These provisions enable the court to exercise real control and to decide whether any (and if so what) expert evidence can be given, how many experts in what fields and dealing with which issues in the litigation.
The single joint expert concept has since been successfully introduced in New Zealand and Australia. It is currently being implemented in the province of Québec and should be in place for all Superior Court proceedings within the next year. The Québec experience will therefore need to be closely monitored.
Reference: Expert Witnesses under the Civil Procedure Rules by Lord Justice Dyson in Clinical Risk; Jul 2005; 11, 4; pg. 148-156