When Part 35 questions are just too much!

I have recently blogged about Mustard v Flower [2019] EWHC 2623 (QB) in the context of covert recordings of expert examinations.  The case also had to consider the service of extensive Part 35 questions.  CPR 35.6 provides:

(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.

The judge (Master Davison) regarded the questions as relevant and addressing areas of omission in the defendant’s experts’ reports (in the light of clarification of certain evidence in the case) but also considered the sheer volume of the questions to be unprecedented.  Some of the questions required consideration of a mass of literature appended to the questions, including literature not referred to in the expert’s report.  With the appendices the questions ran to two full ring folders.  It was estimated that answering the questions would take several working days and would result in a document longer than the original report on which the questions were raised.  They were, in essence, cross-examination. The judge noted that ‘the mandatory requirement for proportionality was intended to address the practice that had arisen in some quarters of serving lengthy, complex sets of questions that were, in reality, a form of cross-examination.’  He also observed that the issues would be more proportionately dealt with in the joint discussion and joint statement.

It was held that the questions need not be answered because (i) they were wholly disproportionate, (ii) they were overwhelmingly not for the purposes of clarification and (iii) they amounted to cross-examination.   While there were omissions in the experts’ reports, these would, in this case, be best addressed by supplementary reports and/or by the process of joint meetings and joint statements. Such reports and joint statements would be likely to render whole swathes of the questions redundant.

The judge referred to the note to CPR35.6 in the White Book (generally regarded as guidance carrying significant weight – other guidance to the CPR is available) which stated that if an expert received a set of questions which it was considered went beyond the spirit of the rule, the right approach was to –

answer the clearly relevant questions and only to decline to answer the remainder if (i) to do so would be clearly prejudicial to the instructing party’s position, or, (ii) the time and cost of replying to the questions was disproportionate’.

The judge expressed sympathy with experts faced with such questions who would themselves have to make a judgment about the appropriateness or proportionality of each question, or set of questions, before choosing whether to answer and then formulate reasons why they chose not to answer, in itself a time-consuming operation.

Learning point:

Part 35 questions must be for clarification and must be proportionate.  They are not for the purpose of cross-examining the expert.  Failing to cover all relevant matters in a report is likely to provoke Part 35 questions, if the failure is not picked up (as it should be) by the instructing solicitors.  Both the terms ‘clarification’ and ‘proportionate’ are open to interpretation.  Extensive questions on the scale of those in the current case which arise from omissions from the expert’s report are generally best dealt with by way of a supplementary report or at the joint discussion and in the joint statement – aided by an agenda – rather than in a mass of questions supported by annexed (and cross-referred) documentation.

Experts letters seeking guidance from the court:

Interestingly the experts concerned in this case about the lengthy questions and the covert recordings wrote to the court seeking directions, pursuant to CPR35.14.  Few have experience of this procedure including Master Davison, and he recorded that even his senior colleague (Master Yoxall) had received such letters from experts on 2 occasions in 18 years.  However experts should remember that in difficult or unusual circumstances, and where matters are not satisfactorily resolved through instructing solicitors, they can write direct to the court for directions (see para 28 of the Guidance for the Instruction of Experts in Civil Claims as to how that should be done).

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