In issue 17 of the Trett Digest, Alex Hartman offered his opinion on the July 1996 ‘Access to Justice’ final report by Lord Woolf. He suggested that the intention behind the implementation of the Woolf reforms would be to reduce cost and delay whilst returning the expert’s role to that of independent, impartial adviser to the Court.

On the 26th April 1999 Lord Woolf’s civil justice reforms, the Civil Procedure Rules (CPR), came into force, proclaimed as the most fundamental change to the civil justice system for more than a century.
Part 1 states that the overriding objective of the reforms is to enable the court to deal with cases justly. This is to be achieved by –
• promoting the settlement of disputes and cases,
• reducing the delay in cases,
• making the costs more proportionate to the sums in dispute,
• giving the courts the overall responsibility for case management, and
• simplifying the language of litigation with the focus now being the use of plain English

Existing cases will not escape the reforms as the Civil Procedure Rules will be applied to these cases when they are next considered by the court.
As suggested by Alex, the reforms will now force both litigants and their experts to adopt a different approach to the consideration of and the use of expert evidence. The main issues which must be considered with regard to experts are:-
1. Expert evidence must be restricted at all times to that which is reasonably required to resolve the proceedings. (CPR 35.1)

2. It is the duty of an expert to help the court on all matters within his expertise. This duty overrides any obligation to the person from whom instructions were received or who has the obligation of payment. (CPR 35.3)

3. No party may call an expert without the courts permission. When permission is applied for the party must identify:-
the field in which he wishes to rely on expert evidence; or
the particular named expert.
If the permission is granted then it will only apply to the identified field or the particular named expert. (CPR 35.4)

4. The court has the power to limit the amount of the experts fees and expenses. (CPR 35.4(4))

5. Where two or more parties wish to submit expert evidence on a particular issue then the court may direct that the evidence is to be given by one single joint expert. (CPR 35.7)

6. Where the parties cannot agree who should be the expert then the court may:-
select the expert from a list prepared by the instructing parties; or
direct that the expert be selected in such a manner as the court thinks fit.
N.B. Experts should check that relevant bodies have up to date details of their practices and specialisms and ensure that they are listed as registered experts.

7. Where a single joint expert is to be used, each instructing party may give that expert instructions. However, whenever instructions are given by one party, a copy of the instructions must be sent to each party. (CPR 35.8)
The court may give directions regarding:-
payment of the experts fees and expenses,
inspection, examination or experiments which the expert wishes to carry out.

8. The court may, at any stage, exercise its right to direct a discussion between experts in order to:-
identify the issues in the proceedings,
where possible, reach an agreement on the issues. (CPR 35.12)
The court may specify the issues which the experts must discuss. Also, the court may direct that, following such a discussion, the experts prepare a statement which establishes:-
those issues which are agreed; and
those issues on which the experts disagree and their reasons for disagreeing.
N.B. The content of any such discussion shall not be referred to at the trial unless the parties agree. Also, any agreement reached between the parties shall not bind them unless this is expressly agreed.

9. All expert reports must comply with CPR Part 35 Practice Direction which states that an expert report must:-
give details of the experts qualifications,
give details of any literature relied on,
give details of any test or experiments carried out,
where a range of opinions is encountered –
summarise the range of opinion, and
give reasons for his own opinion,
contain a summary of the conclusions reached,
contain a statement that the expert understands his duty to the court,
contain a statement setting out the substance of all material instructions.
In addition the expert’s report must be verified by a statement of truth. Proceedings for contempt of court may be brought against any expert who has made a false statement if he did not have an honest belief in its truth.

10. Both sides have one opportunity to ask for written clarification of the expert’s report. However, this request must be made within 28 days of the service of the report. There is an obligation on the expert to answer these questions. The answers will be treated as part of the expert report. (CPR 35.6)
If a party has put forward a written question which the expert does not answer the court has the power to order that either:-
the party may not rely on the evidence of that expert; or
the party may not recover the fees and expenses of that expert from any other party.

11. The expert must advise the instructing solicitor as early as possible as to which documents and classes of documents he needs to see.

12. If one party has access to information which is not available to the other party the court may order that the party who has access to the information:-
prepares and files a document recording the information; or
serves a copy of the document on the other party. (CPR 35.9)

13. Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at trial. However, a party who has not disclosed an expert’s report may not use the report at the trial or call the expert to give evidence orally without the permission of the court. (CPR 35.11)

14. The expert may send a written request to the court for directions to assist him in carrying out his functions. However, the expert does not have to give notice of this request to any party. (CPR 35.14)

15. It is essential that the expert advises the instructing solicitors as to when he is available, to avoid being caught by the time limits. The availability of extensions has been greatly reduced as far as it may change the date of the case management review, pre-trial review or trial. Variations which do not alter these key dates, however, may be agreed between the parties.

16. Experts should ensure that they obtain specific instructions and provide costs and time estimates for work which is to be undertaken. This is essential if the experts are to comply with the cost and proportionality restraints.

17. Experts should be aware of the possibility of being appointed the lead expert in cases which involve several experts. The lead expert is responsible for the preparation of the general part of the report and for annexing or incorporating the contents of any other expert reports.

In conclusion I would offer the opinion that the new regime should be welcomed as a method of reducing the delay, cost and complexity in civil proceedings. However, in reality the system will only work if the court enforces the case management function properly. Complaints have already been raised that judges simply do not have enough time to read cases in advance of the case management meeting. In such a situation the parties resort to the pre-Woolf system and so completely defeat the whole object of the reforms.