On 1 October 2009 the 50th update to Civil Procedure Rules came into effect. One of the key changes is to Part 35. There are 4 main changes:

• Definition of an expert
• Guidance on the use of single joint experts
• A new declaration of awareness and a revised Statement of Truth
• Clarification of what written questions can be put to an expert witness

Definition of an expert
The definition is now harmonised between civil and criminal proceedings.

Guidance on the use of single joint experts
Guidance has been provided on the use of single joint experts in small and fast track litigation cases, where if the court allows an expert, that will normally only be a single joint expert.

A new declaration of awareness and a revised Statement of Truth
The Statement of Truth has now been revised and experts must make a clear distinction between the facts within their own knowledge and facts that are not. The facts within their own knowledge must be confirmed to be true. The new declaration of awareness requires the expert to include a statement confirming that they are aware of the Civil Procedure Rules, Practice Directions and the Protocols.
The new declaration of awareness and revised Statement of Truth has been introduced as a result of many experts having failed to comply with the existing rules and protocols. This key change in will mean that instructing solicitors will now look for evidence that an expert has a full understanding of Part 35 of the CPR, Practice Directions and Protocols. It is also likely that if cases go to court, experts could be cross-examined in relation to their knowledge of Part 35 of CPR.

Clarification of what written questions can be put to an expert witness
Written questions must be proportionate and appropriate. For example, there must be no cross examination or attacks on the expert’s integrity.

Conclusion
Experts must ensure that they are fully conversant of the Civil Procedure Rules, Practice Directions and the Protocols and in the preparation of the report, the expert have complied with them.

These changes emphasise the primary duties of an expert:

• Assist the court.
• Not be a ‘hired gun’ or advocate.
• Give unbiased evidence of opinion on matters within the expert’s expertise, based upon all of the facts, regardless of what party it may be helpful to, or indeed unhelpful to.

It is therefore paramount that solicitors only instruct those experts that fully understand the rules, and those experts must in turn be able to demonstrate to their instructing source that they are aware of these rules.

The following is the new format for the declaration of awareness and Statement of Truth:

I, [FULL NAME OF EXPERT], DECLARE THAT :-

1. I understand that my duty in providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party by whom I am engaged or the person who has paid or is liable to pay me. I confirm that I have complied and will continue to comply with my duty.

2. I confirm that I have not entered into any arrangement where the amount or payment of my fees is in any way dependent on the outcome of the case.

3. I know of no conflict of interest of any kind, other than any which I have disclosed in my report.

4. I do not consider that any interest which I have disclosed affects my suitability as an expert witness on any issues on which I have given evidence.

5. I will advise the party by whom I am instructed if, between the date of my report and the trial, there is any change in circumstances which affect my answers to points 3 and 4 above.

6. I have shown the sources of all information I have used.

7. I have exercised reasonable care and skill in order to be accurate and complete in preparing this report.

8. I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.

9. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others, including my instructing lawyers.

10. I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification.

11. I understand that;

11.1 my report will form the evidence to be given under oath or affirmation;

11.2 questions may be put to me in writing for the purposes of clarifying my report and that my answers shall be treated as part of my report and covered by my statement of truth;

11.3 the court may at any stage direct a discussion to take place between experts for the purpose of identifying and discussing the expert issues in the proceedings, where possible reaching an agreed opinion on those issues and identifying what action, if any, may be taken to resolve any of the outstanding issues between the parties;

11.4 the court may direct that following a discussion between the experts that a statement should be prepared showing those issues which are agreed, and those issues which are not agreed, together with a summary of the reasons for disagreeing;

11.5 I may be required to att end court to be cross-examined on my report by a cross-examiner assisted by an expert;

11.6 I am likely to be the subject of public adverse criticism by the judge if the Court concludes that I have not taken reasonable care in trying to meet the standards set out above.

12. I have read Part 35 of the Civil Procedure Rules and the accompanying practice direction including the “Protocol for Instruction of Experts to give Evidence in Civil Claims” and I have complied with their requirements.

13. I am aware of the practice direction on pre-action conduct. I have acted in accordance with the Code of Practice for Experts.

STATEMENT OF TRUTH
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

© Michael Gerard Consulting Limited
August 2008