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).

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

Written Questions of an Expert in Civil Claims

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’.


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.Read More »