The Rules of the Supreme Court (Amendment) 1974

5.  Order 38 shall be amended as follows:—

(1) For rules 6 and 7 there shall be substituted the following rules:—

“Revocation or variation of orders under rules 2 to 5

6.   Any order under rules 2 to 5 (including an order made on appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order of the Court made at or before the trial.

Evidence of finding on foreign law

7.— (1) A party to any cause or matter who intends to adduce in evidence a finding or decision on a question of foreign law by virtue of section 4(2) of the Civil Evidence Act 1972 shall—

(a) in the case of an action to which Order 25, rule 1, applies, within 14 days after the pleadings in the action are deemed to be closed, and

(b) in the case of any other cause or matter, within 21 days after the date on which an appointment for the first hearing of the cause or matter is obtained,

or, in either case, within such other period as the Court may specify, serve notice of his intention on every other party to the proceedings.

(2) The notice shall specify the question on which the finding or decision was given or made and specify the document in which it is reported or recorded in citable form.

(3) In any cause or matter in which evidence may be given by affidavit, an affidavit specifying the matters contained in paragraph (2) shall constitute notice under paragraph (1) if served within the period mentioned in that paragraph.”

(2) After rule 33 there shall be added the following rule and Part:—

“Statements of opinion

34.   Where a party to a cause or matter desires to give in evidence by virtue of Part I of the Act, as extended by section 1(1) of the Civil Evidence Act 1972, a statement of opinion other than a statement to which Part IV of this Order applies, the provisions of rules 20 to 23 and 25 to 33 shall apply with such modifications as the Court may direct or the circumstances of the case may require.

IV EXPERT EVIDENCE

Interpretation

35.   In this Part of this Order a reference to a summons for directions includes a reference to any summons or application to which, under any of these Rules, Order 25, rules 2 to 7, apply and expressions used in this Part of this Order which are used in the Civil Evidence Act 1972 have the same meanings in this Part of this Order as in that Act.

Restrictions on adducing expert evidence

36.— (1) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence has applied to the Court to determine whether a direction should be given under rule 37, 38 or 41 (whichever is appropriate) and has complied with any direction given on the application.

(2) Nothing in paragraph (1) shall apply to evidence which is permitted to be given by affidavit or shall affect the enforcement under any other provision of these Rules (except Order 45, rule 5) of a direction given under this Part of this Order.

Medical evidence in actions for personal injuries

37.— (1) Where in an action for personal injuries an application is made under rule 36(1) in respect of oral expert evidence relating to medical matters, then, unless the Court considers that there is sufficient reason for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the Court may specify.

(2) The Court may, if it thinks fit, treat any of the following circumstances as a sufficient reason for not giving a direction under paragraph (1):—

(a) that the pleadings contain an allegation of a negligent act or omission in the course of medical treatment; or

(b) that the expert evidence may contain an expression of opinion—

(i) as to the manner in which the personal injuries were sustained; or

(ii) as to the genuineness of the symptoms of which complaint is made.

Other expert evidence

38.— (1) Where an application is made under rule 36(1) in respect of oral expert evidence to which rule 37 does not apply, the Court may, if satisfied that it is desirable to do so, direct that the substance of any expert evidence which is to be adduced by any party be disclosed in the form of a written report or reports to such other parties and within such period as the Court may specify.

(2) In deciding whether to give a direction under paragraph (1) the Court shall have regard to all the circumstances and may, to such extent as it thinks fit, treat any of the following circumstances as affording a sufficient reason for not giving such a direction:—

(a) that the expert evidence is or will be based to any material extent upon a version of the facts in dispute between the parties; or

(b) that the expert evidence is or will be based to any material extent upon facts which are neither—

(i) ascertainable by the expert by the exercise of his own powers of observation, nor

(ii) within his general professional knowledge and experience.

Disclosure of part of expert evidence

39.   Where the Court considers that any circumstances rendering it undesirable to give a direction under rule 37 or 38 relate to part only of the evidence sought to be adduced, the Court may, if it thinks fit, direct disclosure of the remainder.

Expert evidence of engineers in accident cases

40.   In an action arising out of an accident on land due to a collision or apprehended collision a party who intends to apply to the Court under rule 36 in respect of the expert evidence of an engineer sought to be called on account of his skill and knowledge as respects motor vehicles shall before the hearing of the summons for directions make available to all parties for their inspection a report by the engineer containing the substance of his evidence.

Expert evidence contained in statement

41.   Where an application is made under rule 36 in respect of expert evidence contained in a statement and the applicant alleges that the maker of the statement cannot or should not be called as a witness, the Court may direct that the provisions of rules 20 to 23 and 25 to 33 shall apply with such modifications as the Court thinks fit.

Putting in evidence expert report disclosed by another party

42.   A party to any cause or matter may put in evidence any expert report disclosed to him by any other party in accordance with this Part of this Order.

Time for putting expert report in evidence

43.   Where a party to any cause or matter calls as a witness the maker of a report which has been disclosed in accordance with rule 40 or in accordance with a direction given under rule 37 or 38, the report may be put in evidence at the commencement of its maker's examination in chief or at such other time as the Court may direct.

Revocation and variation of directions

44.   Any direction given under this Part of this Order may on sufficient cause being shown be revoked or varied by a subsequent direction given at or before the trial of the cause or matter.”