The Civil Procedure Rules 1998

PART 35 E+W EXPERTS AND ASSESSORS

Contents of this Part

Duty to restrict expert evidence	Rule 35.1
[F1 Interpretation and definitions]	Rule 35.2
Experts—overriding duty to the court	Rule 35.3
Court’s power to restrict expert evidence	Rule 35.4
General requirement for expert evidence to be given in written report	Rule 35.5
Written questions to experts	Rule 35.6
Court’s power to direct that evidence is to be given by a single joint expert	Rule 35.7
Instructions to a single joint expert	Rule 35.8
Power of court to direct party to provide information	Rule 35.9
Contents of report	Rule 35.10
Use by one party of expert’s report disclosed by another	Rule 35.11
Discussions between experts	Rule 35.12
Consequence of failure to disclose expert’s report	Rule 35.13
Expert’s right to ask court for directions	Rule 35.14
Assessors	Rule 35.15

Textual Amendments

F1 Words in Pt. 35 Table of Contents substituted (1.10.2009) by virtue of The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(a)

Duty to restrict expert evidence E+W

35.1  Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Commencement Information

I1 Rule 35.1 in force at 26.4.1999, see Signature

[F2 Interpretation and definitions E+W

35.2— (1) A reference to an ‘expert’ in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.

(2) ‘Single joint expert’ means an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the claimant) to the proceedings.]

Textual Amendments

F2 Rule 35.2 substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(b)

Experts—overriding duty to the court E+W

35.3—(1)  [F3 It is the duty of experts to help the court on matters within their expertise].

(2) This duty overrides any obligation to the person from whom [F4 experts have received instructions or by whom they are paid.]

Textual Amendments

F3 Words in rule 35.3(1) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(c)

F4 Words in rule 35.3(2) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(d)

Commencement Information

I2 Rule 35.3 in force at 26.4.1999, see Signature

Court’s power to restrict expert evidence E+W

35.4—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

[F5 (2) When parties apply for permission they must [F6 provide an estimate of the costs of the proposed expert evidence and] identify—

(a) the field in which expert evidence is required [F7 and the issues which the expert evidence will address]; and

(b) where practicable, the name of the proposed expert.]

(3) If permission is granted F8 ... it shall be in relation only to the expert named or the field identified under paragraph (2). [F9 The order granting permission may specify the issues which the expert evidence should address.]

[F10 (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 [F11 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.)]

[F12 (3B) In a soft tissue injury claim, permission—

(a) may normally only be given for one expert medical report;

(b) may not be given initially unless the medical report is a fixed cost medical report. Where the claimant seeks permission to obtain a further medical report, if the report is from a medical expert in any of the following disciplines—

(i) Consultant Orthopaedic Surgeon;

(ii) Consultant in Accident and Emergency Medicine;

(iii) General Practitioner registered with the General Medical Council; or

(iv) Physiotherapist registered with the Health and Care Professions Council,

the report must be a fixed cost medical report.

[F13 (3C) In a claim for a whiplash injury, whether or not it is part of a claim for other injuries—

(a) permission—

(i) may normally only be given for one expert medical report in respect of the claim for the whiplash injury; and

(ii) may not be given initially unless the medical report is a fixed cost medical report; and

(b) where the claimant seeks permission to obtain a further medical report in respect of the claim for the whiplash injury only, the report must be a fixed cost medical report if the report is from a medical expert in any of the following disciplines—

(i) Consultant Orthopaedic Surgeon;

(ii) Consultant in Accident and Emergency Medicine;

(iii) General Practitioner registered with the General Medical Council; or

(iv) Physiotherapist registered with the Health and Care Professions Council.

(3D) Where, in respect of a claim for a whiplash injury, the claimant lives outside England and Wales, but chooses to be examined in England or Wales, paragraph (3C) applies.

(3E) Where the claimant obtains a medical report in respect of a more serious injury suffered on the same occasion as the whiplash injury, the claimant may be given permission to use that report instead of a fixed cost medical report under paragraph (3C) provided that—

(a) the report is from a doctor who is listed on the General Medical Council’s Specialist Register; and

(b) the report provides evidence of the whiplash injury.

(3F) Unless paragraph (3D) applies, where, in respect of a claim for a whiplash injury—

(a) the claimant lives outside England and Wales;

(b) permission is given for a medical report,

the medical report (or, if there is more than one report, the first report) must be obtained from a person who is recognised by the country in which they practise as—

(i) being a medical expert; and

(ii) having the required medical qualifications for the purposes of diagnosis and prognosis of a whiplash injury.

(3G) In this rule—

(a) in respect of a soft tissue injury claim, ‘fixed cost medical report’ and ‘soft tissue injury claim’ have the meanings ascribed to them by paragraph 1.1(10A) and (16A), respectively, of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents; and

(b) in respect of a claim for a whiplash injury, ‘fixed cost medical report’ and ‘whiplash injury’ have the meanings ascribed to them by paragraph 1.2(17) and (38), respectively, of the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents.]]

[F14 (4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.]

Textual Amendments

F5 Rule 35.4(2) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(e)

F6 Words in rule 35.4(2) inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 13(a) (with rule 22)

F7 Words in rule 35.4(2)(a) inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 13(b) (with rule 22)

F8 Words in rule 35.4(3) omitted (1.10.2009) by virtue of The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(f)

F9 Words in rule 35.4(3) inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 13(c) (with rule 22)

F10 Rule 35.4(3A) and words inserted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(g)

F11 Words in rule 35.4 substituted (6.4.2010) by The Civil Procedure (Amendment No.2) Rules 2009 (S.I. 2009/3390), rules 1(2), 18(a)

F12 Rule 35.4(3B)(3C) inserted (1.10.2014) by The Civil Procedure (Amendment No. 6) Rules 2014 (S.I. 2014/2044), rules 2, 5 (with rule 14)

F13 Rules 35.4(3C)-(3G) substituted for rule 35.4(3C) (31.5.2021) by The Civil Procedure (Amendment No. 2) Rules 2021 (S.I. 2021/196), rules 1(1), 7(a)

F14 Rule 35.4(4) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(h)

Commencement Information

I3 Rule 35.4 in force at 26.4.1999, see Signature

General requirement for expert evidence to be given in a written report E+W

35.5—(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) If a claim is on the [F15 small claims track or the] fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

Textual Amendments

F15 Words in rule 35.5(2) inserted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(i)

Commencement Information

I4 Rule 35.5 in force at 26.4.1999, see Signature

Written questions to experts E+W

35.6— [F16 (1) A party may put written questions about an expert’s report (which must be proportionate) to—

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.]

(2) Written questions under paragraph (1)—

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report; and

(c) must be for the purpose only of clarification of the report,

unless in any case,

(i) the court gives permission; or

(ii) the other party agrees.

(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

(4) Where—

(a) a party has put a written question to an expert instructed by another party F17 ...; and

(b) the expert does not answer that question,

the court may make one or both of the following orders in relation to the party who instructed the expert—

(i) that the party may not rely on the evidence of that expert; or

(ii) that the party may not recover the fees and expenses of that expert from any other party.

Textual Amendments

F16 Rule 35.6(1) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(j)(i)

F17 Words in rule 35.6(4)(a) omitted (1.10.2009) by virtue of The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(j)(ii)

Commencement Information

I5 Rule 35.6 in force at 26.4.1999, see Signature

[F18 Court’s power to direct that evidence is to be given by a single joint expert E+W

35.7— (1) 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 a single joint expert.

(2) Where the parties who wish to submit the evidence (“the relevant parties”) cannot agree who should be the single joint expert, the court may—

(a) select the expert from a list prepared or identified by the relevant parties; or

(b) direct that the expert be selected in such other manner as the court may direct.]

Textual Amendments

F18 Rule 35.7 substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(k)

Instructions to a single joint expert E+W

35.8—(1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, [F19 any relevant] party may give instructions to the expert.

[F20 (2) When a party gives instructions to the expert that party must, at the same time, send a copy to the other relevant parties.]

(3) The court may give directions about—

(a) the payment of the expert’s fees and expenses; and

(b) any inspection, examination or experiments which the expert wishes to carry out.

(4) The court may, before an expert is instructed—

(a) limit the amount that can be paid by way of fees and expenses to the expert; and

(b) direct that [F21 some or all of the relevant] parties pay that amount into court.

(5) Unless the court otherwise directs, the [F22 relevant] parties are jointly and severally liable^(GL) for the payment of the expert’s fees and expenses.

Textual Amendments

F19 Words in rule 35.8(1) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(l)

F20 Rule 35.8(2) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(m)

F21 Words in rule 35.8(4)(b) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(n)

F22 Word in rule 35.8(5) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(o)

Commencement Information

I6 Rule 35.8 in force at 26.4.1999, see Signature

Power of court to direct a party to provide information E+W

35.9  Where a party has access to information which is not reasonably [F23 available to another party], the court may direct the party who has access to the information to—

(a) prepare and file a document recording the information; and

(b) serve a copy of that document on the other party.

Textual Amendments

F23 Words in rule 35.9 substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(p)

Commencement Information

I7 Rule 35.9 in force at 26.4.1999, see Signature

Contents of report E+W

35.10—(1) An expert’s report must comply with the requirements set out in [F24 [F25 Practice Direction] 35].

[F26 (2)  At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.]

(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged^(GL) against disclosure but the court will not, in relation to those instructions—

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.

Textual Amendments

F24 Words in rule 35.10(1) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(q)(i)

F25 Words in rule 35.10(1) substituted (6.4.2010) by The Civil Procedure (Amendment No.2) Rules 2009 (S.I. 2009/3390), rules 1(2), 18(b)

F26 Rule 35.10(2) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(q)(ii)

Commencement Information

I8 Rule 35.10 in force at 26.4.1999, see Signature

Use by one party of expert’s report disclosed by another E+W

35.11  Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.

Commencement Information

I9 Rule 35.11 in force at 26.4.1999, see Signature

Discussions between experts E+W

35.12—(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—

[F27 (a) identify and discuss the expert issues in the proceedings; and

(b) where possible, reach an agreed opinion on those issues.]

(2) The court may specify the issues which the experts must discuss.

[F28 (3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which—

(a) they agree; and

(b) they disagree, with a summary of their reasons for disagreeing.]

(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.

(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Textual Amendments

F27 Rule 35.12(1)(a)(b) substituted (25.3.2002) by The Civil Procedure (Amendment No. 5) Rules 2001 (S.I. 2001/4015), rules 1(c), 21

F28 Rule 35.12(3) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(r)

Commencement Information

I10 Rule 35.12 in force at 26.4.1999, see Signature

Consequence of failure to disclose expert’s report E+W

35.13  A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

Commencement Information

I11 Rule 35.13 in force at 26.4.1999, see Signature

Expert’s right to ask court for directions E+W

35.14— [F29 (1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.]

[F30 (2) Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions under paragraph (1)—

(a) to the party instructing them, at least 7 days before they file the requests; and

(b) to all other parties, at least 4 days before they file them.]

(3) The court, when it gives directions, may also direct that a party be served with [F31 a copy of the directions.]

F32 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Rule 35.14(1) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(s)(i)

F30 Rule 35.14(2) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(s)(ii)

F31 Words in rule 35.14(3) inserted (25.3.2002) by The Civil Procedure (Amendment No. 5) Rules 2001 (S.I. 2001/4015), rules 1(c), 22(b)(i)

F32 Rule 35.14(3)(a)(b) omitted (25.3.2002) by virtue of The Civil Procedure (Amendment No. 5) Rules 2001 (S.I. 2001/4015), rules 1(c), 22(b)(ii)

Commencement Information

I12 Rule 35.14 in force at 26.4.1999, see Signature

[F33 Assessors E+W

35.15— (1) This rule applies where the court appoints one or more persons under section 70 of the Senior Courts Act 1981 or section 63 of the County Courts Act 1984 as an assessor.

(2) An assessor will assist the court in dealing with a matter in which the assessor has skill and experience.

(3) An assessor will take such part in the proceedings as the court may direct and in particular the court may direct an assessor to—

(a) prepare a report for the court on any matter at issue in the proceedings; and

(b) attend the whole or any part of the trial to advise the court on any such matter.

(4) If an assessor prepares a report for the court before the trial has begun—

(a) the court will send a copy to each of the parties; and

(b) the parties may use it at trial.

(5) The remuneration to be paid to an assessor is to be determined by the court and will form part of the costs of the proceedings.

(6) The court may order any party to deposit in the court office a specified sum in respect of an assessor’s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.

(7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament.]

Textual Amendments

F33 Rule 35.15 substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(t)