Amendment to CPR 35.4 costs budgeting by the back door?
There has been a recent amendment to CPR 35.4 [x] which may have been unnoticed by some practitioners but not by the judiciary.
CPR 35 relates to the use of expert evidence within civil proceedings which means any party seeking to rely on expert evidence needs to obtain the permission of the Court.
In practice when attending case management hearings in either the High Court or the county courts it has previously been possible to obtain permission for expert evidence as long as the expert evidence appears proportionate and is likely to assist the court in determining the disputed issues. It was only necessary to identify the expert disciplines and we were not required to name them or to provide details of their likely fees.
An amendment to CPR 35.4(2) means that any party seeking permission of the court to rely upon expert evidence will have to provide the following information:-
1. “An estimate of the costs of the proposed expert evidence”
2. The discipline of the expert
3. Where possible the name of the expert
These requirements apply to all cases whether issued before or after 1 April 2013, although in cases issued after 1 April 2013 this information will be contained within the cost budgets which the parties are required to provide in such cases. However in those cases issued before April 2013 (and not subject to cost budgeting) this provision still gives the judiciary an opportunity to consider the potential cost of expert evidence before giving permission to rely upon the same. Moreover, when giving permission to rely upon an expert, the court has the power to limit the expert fees that can be recovered from the other party, pursuant to CPR 35.4(4). That power has been in the CPR for some time, but is now much more likely to be exercised, because the court will have been provided with an estimate of the fees in question.
There is no definition of what “an estimate of the costs of the proposed expert evidence” means. Is it just the expert’s fees for his report? Or the expert’s likely fees to trial? Or does it include the solicitor’s fees for dealing with the expert? It is safer to assume it means the total cost of the expert through the process of preparing initial reports, through the joint statement process and then finally attending trial.
Whilst there has always been provision in CPR for naming the expert it is my experience that this has not been strictly adhered to. At recent case management conferences before Masters and District Judges they have requested the name of the expert before granting permission. If we have to name our expert (when we have not already obtained an initial report) this could cause practical problems if the expert then provides an unsupportive report and our client wants to seek an alternative opinion. If the expert has been named in the order, it would be necessary to obtain the court’s permission to rely upon the alternative and any such permission might well be conditional upon disclosing the unsupportive report of the original expert.
Failure to provide information regarding the expert’s name and potential costs of the expert evidence may result in our clients not being given permission to rely upon such evidence.
It is imperative for all practitioners to be fully prepared for all upcoming case management conferences to ensure that they know the name and cost of the expert they are instructing as otherwise they may not get permission to rely upon the same.