BRIEF SUMMARY OF CHANGES TO PART 35 CIVIL PROCEDURE RULES
I recently attended a half day training course organised by N-Able Services Ltd, Bromborough. They commissioned Bond Solon (a legal training consultancy) to carry out the training.
The aim of the course was to update all professionals carrying out Expert Witness work on the significant changes which came into force on 1 October 2009 with regards to Part 35 and consequential Practice Directions of the Civil Procedure Rules and the 2005 Protocol for the Instruction of Experts.
In brief the changes are as follows:
www.ministryofjustice.co.uk
The trainer gave some invaluable guidance which I would like to impart to you.
Firstly, with regards to “awareness of the rules”, the new Statement of Truth has to include a statement making reference to the fact that we are aware of the requirements of Part 35. The trainer made it clear that it is likely, should we have to give evidence in court, that we will be asked if we are aware of the rules. So boning up on the rules is advisable!!
He also stated that it is likely that we may be asked how many reports we have completed – again it is a good idea to be aware of this.
We also have to give, in the body of the report, the range of opinions (if there is a range), not just our own opinion.
It is also likely, in the future, that both experts will be in court at once rather than at different times – he called it “hot tubbing”!!
In the case of the joint expert, the courts may decide who will be the joint expert if both sides cannot agree. If, as a joint expert, we receive different instructions from each side, we, as experts, have the right to make application to the courts to define the rules. The trainer suggested that the best way forward (if we find ourselves in this situation) is to first write to both solicitors explaining that the instructions are contradictory and, if they cannot sort it out, then we will have to apply to the courts for guidance. It is likely that this letter will get results so avoiding application to the courts!
The agenda for the joint meeting between experts (resulting in the joint statement) will be set by the solicitor. We can be assertive with regards to this and talk to the solicitor if we are unhappy about their instructions.
The trainer also suggested that a good way forward now for reports is to put our conclusions at the beginning of the report (either as well as or instead of at the end). As far as OT reports are concerned, this is likely to be the equipment and care tables that we usually put in the Appendix.
Written questions to experts must be put only once and within twenty eight days of service of the expert’s report and must be for the purpose only of clarification of the report unless in any case the court gives permission or the other party agrees.
Finally, we must always remember that our overriding duty is to the courts – not the commissioning solicitor!
Helen E Sheard
Consultant Occupational Therapist
I recently attended a half day training course organised by N-Able Services Ltd, Bromborough. They commissioned Bond Solon (a legal training consultancy) to carry out the training.
The aim of the course was to update all professionals carrying out Expert Witness work on the significant changes which came into force on 1 October 2009 with regards to Part 35 and consequential Practice Directions of the Civil Procedure Rules and the 2005 Protocol for the Instruction of Experts.
In brief the changes are as follows:
- The definition of an Expert has been clarified
- Guidance is provided on the appointment of Single Joint Experts
- There is a new statement of Truth and corresponding declaration of awareness of the rules
- Directions are given on written questions to experts.
www.ministryofjustice.co.uk
The trainer gave some invaluable guidance which I would like to impart to you.
Firstly, with regards to “awareness of the rules”, the new Statement of Truth has to include a statement making reference to the fact that we are aware of the requirements of Part 35. The trainer made it clear that it is likely, should we have to give evidence in court, that we will be asked if we are aware of the rules. So boning up on the rules is advisable!!
He also stated that it is likely that we may be asked how many reports we have completed – again it is a good idea to be aware of this.
We also have to give, in the body of the report, the range of opinions (if there is a range), not just our own opinion.
It is also likely, in the future, that both experts will be in court at once rather than at different times – he called it “hot tubbing”!!
In the case of the joint expert, the courts may decide who will be the joint expert if both sides cannot agree. If, as a joint expert, we receive different instructions from each side, we, as experts, have the right to make application to the courts to define the rules. The trainer suggested that the best way forward (if we find ourselves in this situation) is to first write to both solicitors explaining that the instructions are contradictory and, if they cannot sort it out, then we will have to apply to the courts for guidance. It is likely that this letter will get results so avoiding application to the courts!
The agenda for the joint meeting between experts (resulting in the joint statement) will be set by the solicitor. We can be assertive with regards to this and talk to the solicitor if we are unhappy about their instructions.
The trainer also suggested that a good way forward now for reports is to put our conclusions at the beginning of the report (either as well as or instead of at the end). As far as OT reports are concerned, this is likely to be the equipment and care tables that we usually put in the Appendix.
Written questions to experts must be put only once and within twenty eight days of service of the expert’s report and must be for the purpose only of clarification of the report unless in any case the court gives permission or the other party agrees.
Finally, we must always remember that our overriding duty is to the courts – not the commissioning solicitor!
Helen E Sheard
Consultant Occupational Therapist
No comments:
Post a Comment