From a lawyer’s perspective, the opportunity to ask questions of the other side’s expert is a valuable part of the litigation process.  From the expert’s perspective, the questions often come out of the blue and at best appear irritating, at worst insulting, and often unnecessary.

The CPR provide at Rule 35.6:

(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 only once;

(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; 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.

One certainty is that the expert will not know when his or her report is served, and therefore will not know when the 28 days within which the questions must be asked (under CPR 35.6(2)(b)) commences.  The expert knows only when the report was provided to the instructing lawyers, and service (i.e. sending the report to the other side) may have been many months later.  It is in any event likely that the questions will be pursuant to a court order, which can be made at any time – and therefore might be significantly later than the (unknown) date of service of the report – or at some other date agreed to by the lawyers instructing the expert, perhaps so that they might ask questions of the other side’s expert at the same time.

The consequence is that the questions are likely to come long after the expert has forgotten the subject matter of the report.

Who can ask the questions?

Under CPR 35.6 the questions can be asked by a lawyer of the opposing expert, not the lawyer’s own expert, or by any or all of the lawyers instructing a single joint expert.  Of course a lawyer can always ask his or her own expert questions, whether formally in writing in response to written questions or in any other manner, but these are asked under the expert’s general retainer or as part of the expert’s duty to his or her own client.  However those answers provided by the expert to his or her instructing lawyer are not automatically admissible in evidence in the case and may require the court’s permission before being used in that way.

How often can questions be asked

The default position is that questions may be asked once (CPR 35.6(2)(a)) but that doesn’t stop the court or the parties agreeing to a second round of questions, if this is deemed necessary.  The first answers provided may themselves have given rise to more questions than they answered, or they may have been inadequate, or there may have been developments in the case which require further ‘clarification’.

‘Clarification’

What is clarification?  And whose clarification are we talking about?   ‘Clarification’ at CPR 35.6(2)(c) is not defined in the Rules.  The Court of Appeal has taken the view that questions should be answered if to do so would assist the just disposal of the dispute[1].  Therefore the questions may involve the expert in expressing opinions on matters additional to those addressed in the report, if  (of course) they are within the expert’s area of expertise and if relevant to the issues to be resolved in the dispute.  The expert must not be led into answering questions on matters on which he or she does not have the requisite expertise.

When can an expert decline to respond?

As the Guidance for the Instruction of Experts in Civil Claims 2014[2] states (para 67) experts have a duty to provide answers to questions properly put.  The questions ‘must be proportionate’ – see the opening words of CPR 35.6(1).  Unfortunately, this is not a defined term and the length of questions permissible will vary according to the number and complexity of issues addressed in the report and how adequately they have been dealt with in the report or how relevant the answers will be to the disposal of the dispute.

The questions may be a form of cross-examination on paper.  Indeed in a fast track claim, this is the only way in which an expert can be cross-examined (as an expert is most unlikely to be attending court).  They may be based on the contents of an undisclosed and well-reasoned report providing a contrary opinion to that of the expert, but they may also be the imprecise questioning of a lawyer who does not have a full grasp of the expert issues in the dispute.

If it is apparent that the questions are so extensive as to require a substantial amount of time on the part of the expert to answer them, which might make the effort and cost disproportionate to the claim (that is, to its importance, its value and/or its complexity), then the expert should raise this concern with the instructing lawyer for advice as to whether the questions should be answered in whole or in part.  (See further guidance in the Guidance for the Instruction of Experts in Civil Claims 2014 paras 67 – 69.)

Time for response

The expert has an obligation to co-operate with the court process.  If the questions were ordered by the court, a copy of the court order should have been provided to the expert by the instructing lawyer (PD35 8[3]) and this will provide for a date by which the answers are to be provided – normally, but not necessarily, 28 days after the questions are to be served on the experts.  If the period specified is for good reason unrealistic (perhaps the questions were provided late, or at a time when the expert is on leave or abroad) then the expert must notify the instructing lawyer and also the lawyer of the party serving the questions, and provide an alternative date.  If this date cannot be agreed, then either the instructing lawyer or, as a last resort, the expert, can apply to the court for additional time.

Otherwise, in the absence of a court order for questions and answers, CPR 35.6 does not provide a time period within which the answers are to be provided.  In the absence of a specified time period, an expert should aim to provide the answers within 2 to 4 weeks, and should notify the instructing lawyer, and the party asking the questions, if there are any reasons why it might take longer.

Answer the questions!

The questions are drafted by lawyers, and it should be assumed that they are phrased in the way that they are for good reason.  For lawyers, precision in the use of words is crucial.  It is likely that, in asking the questions, they have used the words they have for a specific reason, and the words the expert uses in answering will be scrutinised on the same basis.

Questions should reflect the legal tests applicable to the issues to which they relate.  They will, therefore, reflect the standard of proof (‘Is it more likely than not?’), issues of causation of damage (‘In the absence of, or but for, [the index event]’) and issues of the attribution and reasonableness of loss or damage claimed, and the expert must apply the same legal tests in responding.

One question may contain more than one part, even if this is not revealed by the numbering, and each part of the question will need addressing if the expert wishes to avoid a second round of questions (or to avoid appearing incompetent!).

Sometimes a question cannot be answered in the simple manner implied by the question (‘Is it or is it not correct that …?).  Although the expert should try to answer the question directly (‘This questions assumes a yes or no answer, but the nature of the Claimant’s condition means that an answer cannot be given in that manner’) and the expert should  not feel driven into a simple answer if that will not enable an unqualified opinion to be given[4] but an answer to a question is not the best place to provide a long and complicated exposition on the topic.  It is probably better to provide a series of bullet points, followed if necessary by some further clarification.  If necessary to do the explanation justice, it may be better to provide brief answers to the questions and, in addition, a supplementary report referring to the questions and the need for further clarification.

Format in which the answers should be provided

There is no assistance in the Rules, Practice Direction or the Guidance as to the format of the expert’s answers.  CPR 35.6(3) states that the answers are to be treated as part of the expert’s report (so that all the duties and obligations of an expert in providing such a report are applicable, as is the declaration and statement of truth in the report).

The most unhelpful way in which to provide answers – from the reader’s point of view – is as a separate free-standing letter or document containing only the question number and the expert’s answer.  The reader will then need to have two documents to hand – the questions and the answers – in order to follow the answers.  Of greater concern, however, is the lack of discipline and precision in providing the answers that this process may generate.

The questions and answers should appear in a single document, with each answer provided immediately after the question to which it relates.  This simplifies the process of understanding the expert’s ‘clarified’ opinion.  As important, it assists the expert in ensuring that the answer both reflects the wording of the question and applies any legal tests expressly or implicitly contained within the question, and also answers all parts of each question.

It is not necessary to type up the questions if they are extensive.  The expert should ask the lawyer serving the questions to provide an electronic version of them, copying in the expert’s own instructing lawyer to that request.

An expert’s declaration and statement of truth are not necessary when providing answers to questions.  As we have seen, the answers are automatically treated as part of the expert’s report and therefore they are covered by the declaration and statement of truth in the report (CPR 35.6(3)).

What should the expert do with the answers?

The response to the questions – containing the questions and answers – should be signed and sent to both the party asking the questions and to the expert’s instructing lawyer at the same time.

Who pays the expert for providing answers to questions?

PD35 6.2 provides that the party instructing the expert in the first place is responsible for the expert’s fee for answering questions posed by any other party to the dispute.  The expert’s terms and conditions agreed prior to providing the initial report will therefore apply. That will not prevent the expert’s instructing lawyer recovering the expert’s fees from the other party to the dispute in appropriate circumstances, but whatever happens within the litigation (and whoever the final paymaster may be) the expert can bill his instructing lawyer and should obtain payment from him or her.  However in fast track claims to which the Pre-Action Protocol for Personal Injury Claims applies the costs of the mutually agreed expert replying to questions will usually be borne by the party asking the questions.[5]

What if the expert declines or fails to provide answers?

CPR 35.6 provides two potential consequences where the expert fails to respond to written questions.  The party instructing the expert may be prevented from relying on the evidence of that expert at all within the litigation, with potentially disastrous consequences for that party were the court not to accede to a request for a substitute expert; or the party instructing the expert may not be able to recover the fees of that expert from any other party; or both.  In any event the expert is likely to be in breach of the expert’s duty to his own party and liable for any costs or damages resulting from such a failure.  This could range from the potential value of the whole claim and legal costs (should the claim fail because of the court excluding the expert’s evidence) to the expert having to repay any fees already received.

The importance of the answers

Because the questions are likely to come some while after the report was written, the matters to which they relate are unlikely to be in the forefront of the expert’s mind.  It is time-consuming to read back through all of the documentation – letter of instruction, relevant copy records and documentation, the expert’s notes of instructions or attendances, the expert’s report and supplementary reports, and the reports of other experts – but there is considerable danger in providing answers to questions which relate to what are most probably important issues in the claim without being fully apprised of all aspects of the case relevant to the expert.

Conclusion

Responding to questions is an onerous duty.  The questions will come at a time when the issues to which they relate are no longer fresh in the expert’s mind.  The expert must address the questions with care, and the answers provided must be carefully reasoned and fully justified.  In answering the questions the expert is not only under the expert’s duty to the court, but also owes a duty of care to his or her own side in the litigation.

The expert can reduce the likelihood (and inconvenience) of questions being asked by providing, in the first instance, a thorough and carefully reasoned report, identifying, addressing and applying all relevant legal tests, and so identifying and pre-empting potential challenges.

[Who or what is medico-legal minder?  Terms and conditions apply]

[1] Mutch v Allen [2001] All E R D121

[2] The Guidance is referred to in the Practice Direction to Part 35 and in the declaration which every expert must make at the conclusion of every report, and can be found through a search at www.judiciary.gov.uk or as an appendix to the author’s book

[3] The Practice Direction to Part 35 of the CPR, paragraph 8

[4] See PD35 3.2(8))

[5] Pre-Action Protocol for Personal Injury Claims para 7.10