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Part 35 questions to experts - lessons from a recent case

  • Published: October 25, 2019
  • Author: Paul Sankey, Partner, Enable Law

The Civil Procedure Rules 1998 ('CPR') entitle one party to put questions to another party's expert. This provision is not used as often as one might expect. A recent application in Mustard v Flower and others[1] throws some light on its correct use. It is also an example of expert witnesses taking the very unusual step of applying to the Court for directions.

Clarification questions

CPR Part 35.6 entitles a party to put written questions to another party's expert once, within 28 days of service of that report and for clarification only, unless the Court permits, or the parties agree otherwise. The answers then become part of the expert's report. If an expert witness fails to respond, the Court can disallow that expert's evidence or recovery of the expert's fees.

The expert witness’s right to ask the Court for directions

Under Part 35.14, experts have the right to ask the Court for directions to assist them in carrying out their functions. Unless the Court orders otherwise, they must provide copies of their proposed request for directions to the party instructing them seven days before filing their requests and to all other parties four days before. This is a provision rarely used. In fact, according to the judgment in the application, Master Yoxall, the longest-serving Master, had only received questions from experts twice in 18 years.

Mustard v Flower: the clinical negligence claim

The claimant was a 34-year-old woman, injured when her stationary car was shunted from behind by the first defendant. Her claim for damages was defended by the driver's insurer, the third defendant (referred to here as 'the defendant'). She claimed to have suffered a subarachnoid brain haemorrhage and a diffuse axonal brain injury, leaving her with cognitive and other deficits. This was a subtle brain injury.

During the claim, she saw various experts instructed by the defendant. She recorded some of the consultations, in some cases covertly. The case is interesting for the Court's consideration of whether to allow in evidence those recordings obtained improperly, although not illegally, and in some cases 'reprehensibly' (see my separate article), which it did.

Mustard v Flower: the Part 35 questions

The claimant's solicitor served extensive Part 35 questions on the defendant's experts. With appendices that ran to ring binders, six of the experts wrote to the Court for directions. They complained that the questions would take a disproportionate amount of time to answer and amounted to cross-examination. The defendant applied for an order setting aside the questions or directing that the experts were not required to answer them.

The defendant had several objections to the questions:

  • They were not proportionate.
  • Some would be dealt with more proportionately in the joint statement.
  • They were not for clarification only. They were cross-examination.
  • Some questions appended a whole file of material. The sheer volume was unprecedented. Answering the questions would take many hours of work and, in some cases, two or three working days.
  • Some sought to go behind matters which were privileged.
  • Some were based on statements by the claimant, the reliability of which would be tested at trial; and hence were premature.

In response, the claimant withdrew some questions, explained the rationale for others, gave the experts the option to leave some until cross-examination at trial and, in some cases, invited the experts to answer only those they considered appropriate. As the defence's leading counsel observed, this placed a burden on the experts to decide which were not proper questions.

The decision

The application was heard by Master Davison. He thought it obvious that he should disallow the questions. He commented that he had “never before encountered a set of questions to experts even remotely approaching the scale and complexity of these”. He added that he had never known questions to provoke letters to the Court from experts phrased in terms such as the present.

The questions were relevant, but they were wholly disproportionate. They were not for the purposes of clarification only and amounted to cross-examination. Omissions in the reports (which there were) could best be dealt with by supplementary reports or joint meetings and they would render 'whole swathes' of questions redundant. He agreed that it was undesirable for experts to be forced to make a judgment about the appropriateness of questions, which was a matter for lawyers.

Comments

The case is interesting in several respects (besides the Master's decision to admit in evidence recordings improperly made). It is a very rare example of experts taking advantage of Part 35.14 to apply to the Court for directions. It is also an example of the inappropriate use of Part 35 questions. Questions must be proportionate, and these clearly were not. They must be for clarification rather than cross-examination.

Aside from the misuse of Part 35, the wisdom of trying to cross-examine experts ahead of trial is questionable. To do so gives them the opportunity to improve evidence which might otherwise be weak, prepare their response to questioning in advance and enable the opposing party to reinforce its case. Generally, the wiser course is to keep one's powder dry.

You can read more about this case in our blog, 'Recording consultations with medical experts. Is the evidence admissible?'

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[1]Samantha Mustard v Jamie Flower (1) Stephen Flower (2) Direct Line Insurance (3) [2019] EWHC 2623 (QB)

 

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