When is expert evidence not ‘expert evidence’ for the purposes of CPR Part 35?

If a party to civil litigation wishes to rely on expert opinion evidence to advance its case, Part 35 of the CPR will apply to that evidence, with all of the requirements as to obtaining permission to rely on it, the form of any report, the expert’s duties, disclosure to the opposing party and joint discussions and statements.  If those requirements are not met, will expert opinion evidence be admissible at trial? The answer to that question is quite possibly ‘Yes’!

In the recent case of Mondial Assistance (UK) Limited v Bridgewater Properties Ltd (8/11/2016  Nugee J)[1] a claimant applied for a new lease under the Landlord & Tenant Act 1954.  Permission was given for an expert valuer’s opinion and a valuer’s report was served by the claimant.  This report included in one appendix reports which had been obtained by the claimant from a lift consultant, a curtain wall consultant and a mechanical and electrical engineering consultant, and in a further appendix a summary of the refurbishment costs taken from those reports.

The defendant applied for these 2 appendices to be deleted on the basis that they were expert evidence for which no permission had been sought or obtained under Part 35 of the CPR.

Although this was a landlord and tenant case, a similar situation often appears within medical reports in litigation when the expert refers to reports prepared by other clinicians for purposes other than the litigation, or to research or other academic research or papers, or text books, written by others.  These other documents will contain the opinion evidence of other experts, and for whose evidence no permission has been granted by the court.

In Mondial Assistance the judge pointed out the distinction that has to be made between the opinion evidence of a person who has been instructed to provide expert evidence for the purposes of proceedings, for which permission under CPR 35.2(1) is required, and other opinion evidence not obtained for the purposes of the litigation, which is admissible under the combined effect of s. 3 of the Civil Evidence Act 1972 (admissibility of expert opinion) and s. 1(1) of the Civil Evidence Act 1995 (admissibility of hearsay evidence), subject to the court’s discretion to exclude it in appropriate circumstances (under CPR 32.1(2)).  However rather than exclude the evidence the court will more likely consider the appropriate weight to be given to it.

In fact in Mondial Assistance, of the reports in the annex to the valuer’s report one pre-dated the proceedings and was not obtained for those purposes, while the others had been prepared for the purposes of the proceedings.  Because this was a pre-trial hearing on appeal, the judge left it to the trial judge to rule on the admissibility of the evidence at the trial, but on the basis of the guidance that had been given.

This case therefore analyses, explains and approves what is a common feature of expert evidence – the reference in it to other expert opinion – but also defines its limitations.

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

[1] Reported by Lawtel AC9402075

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