Page 30 - PIC-Magazine-Issue-22-Spring-Summer

30
Jessica Thurston
Head of Medico-Legal Operations
On 1st October 2023, the Civil Procedure Rules Committee introduced a new Intermediate Track and Fixed Recoverable Costs Scheme for lower value claims valued between £25,000 and £100,000. These new rules will apply to cases issued on or after 1st October 2023. The aim of the reform is to ensure that legal costs are more predictable and proportionate, and applies to cases that meet the following criteria:
Where the claim is not suitable for the small claims track or the multi-track.
The claim is not one of the excluded types of claims listed in CPR 26.9(10) which must be allocated to the multi-track, such as mesothelioma
or asbestos lung claims, clinical negligence cases (unless both breach of duty and causation have been admitted), abuse or neglect of children or vulnerable adult cases, and claims against the police.
The trial is likely to last no more than three days, with no more than two expert witnesses per party giving oral evidence.
The issues in the case are not complex or novel, and do not require extensive disclosure, witness evidence, or expert evidence.
The court will allocate cases to the intermediate track based on information provided by the parties in their statements of case and directions questionnaires. The court will however have the power to re-allocate cases from or to the intermediate track if it considers it appropriate.
Whilst, of course, all experts must be mindful of cost and proportionality, the new Rule 28.14 imposes a maximum size for expert witness reports of
20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report. Concern exists between experts that, unless challenged and resolved, this rule may arguably compromise an expert’s ability to comply with their duties as an expert witness.
The purpose of this article is to highlight these potential concerns and to encourage experts to raise these concerns with the Civil Procedure Rules
Civil Procedure Rules and the New Intermediate Track
INDUSTRY EXPERTS
Partners In Costs
Committee, preferably via the Expert Witness Institute (EWI). As a Corporate Partner of the EWI, Somek and Associates highly commends them for collectively taking these concerns to
the Civil Procedure Rules Committee on our behalf.
For those who may be unaware, the EWI is undoubtedly the foremost organisation in the UK representing expert witnesses and is akin therefore to a Professional Body for Experts. It really is the voice
of the expert witness community, championing experts from all disciplines and the lawyers who use their services. It exists to uphold the standards and a code of conduct that are essential to underpin the independent role and crucial function of the expert witness in relation to justice. Furthermore, its role is to support expert witnesses, with all levels of experience through working with the government and the legal profession. As a member you will have access to a library of resources, including relevant judgements, the monthly EWI newsletter with timely current legal updates, discounted rates for courses/webinars, and a helpline where members can ask questions of
the membership panel (comprising of experienced experts and judges), relating to their expert practice.
The EWI have taken forward our concerns regarding the 20-page limit, which can be summarised as follows:
1) Lower value cases are not always straightforward, but may be complex in their nature, requiring the review
of significant volumes of evidence and requiring experts to provide opinions on alternative scenarios and range
of opinion.
2) Expert witnesses are required to meet their full obligations under CPR35, PD 35 and The Guidance for the Instruction of Experts in Civil Claims. This was recently highlighted in the Supreme Court ruling in Griffiths vs TUI, which highlighted that experts must provide the full reasoning for their opinion. An arbitrary restriction in page numbers is inconsistent with this.
3) Different types of reports have different requirements, which may vary according to profession, whether opinion is required on breach of duty or quantum, and whether there are differences in
factual or expert evidence to address. Undoubtedly, some reports will be less than 20 pages, but many will typically not be, and necessarily so.
4) There is also a concern, that if the information is not available in the report there is an increased likelihood that Part 35.6 questions will be required and that the size of the joint statement will be significantly increased in order to ensure all issues are addressed.
5) It is also possible that restricting evidence in this way is likely to increase the length of time needed to resolve those cases which do reach court.
Finally, there is concern that the impact
of these changes will result in a lack of experts willing to undertake work on the intermediate track cases, out of concern that they may receive criticism for not following their Part 35 duties because they are trying to comply with the 20-page limit, and thereby reducing the pool of experts available.
The Civil Procedure Rules Committee have, subsequent to the EWI’s letter of concern, released the minutes of their 02/11/23 meeting in which they have stated the following: “A clarificatory amendment concerning expert reports was proposed by expanding rule 28.14(c) with a new (c)
(i) and (ii) which are designed to set out what is and is not included within the 20- page limit. New (c)(i) will provide that the expert’s description of the issues on which they are instructed to give their opinion, the conclusions they have reached and the reasons for those conclusions, are included within the 20 page limit; but new (ii) will expressly provide that the expert’s CV and any supporting materials to which the reasons for their conclusions refer,
are added to the existing list of items (comprising any necessary photographs, plans and academic or technical articles attached to the report) are excluded.”
However, there is no discussion in the minutes as to the central issues outlined above, and as such the EWI have in December 2023 compiled a further response to the committee, upon which, at the time of writing (January 2024), members await a reply. For further information about the Intermediate Track and the Expert Witness Institute please visit www.ewi.org.uk