CPR 35: Understanding Expert Evidence in Legal Proceedings 

Unfortunately, there may be a time when your business faces commercial litigation. Ultimately, you should avoid court proceedings if you get into a commercial dispute. Civil claims can be time-consuming and costly. Instead, you are advised to try alternative dispute resolution (ADR), such as mediation. However, if you are part of the litigation process, whether a claimant or a defendant, making your argument as strong as possible is essential. This can increase your chances of success and help you resolve commercial disputes. One way to do this is to have strong evidence, which could include expert evidence as a written report. This article will, therefore, help you understand expert evidence in legal proceedings and CPR 35.

What is Expert Evidence? 

Evidence used in civil court proceedings can include documents which help prove a party’s argument. These may be paper or electronic records. As a party to commercial litigation, you may also provide witness evidence on factual issues of which the witnesses are aware. In addition, evidence may include expert evidence. This is evidence provided by an expert witness who gives it independently in an unbiased and impartial manner. 

This evidence helps the court on either issue and can be:

• technical;
• scientific;
• specialist practice; 
• specialist procedures;
• academic; or
• about foreign law.

Expert evidence is different from witness evidence, as the latter can only comment on the witness’s knowledge of facts. Yet expert evidence can be found on any evidence related to the case. However, it cannot comment on issues related to laws or facts. This is something only the judge or jury in a case can determine. 

Why is Expert Evidence Important? 

Evidence is necessary in civil litigation as it can support our claims and help you win your case. This is because a civil case is won on the balance of probabilities.

What are the Court’s Instructions on Expert Evidence?

The court instructs an expert to use their experience to provide an authoritative opinion on a matter of the case only to the extent that the court feels it necessary to help decide this case. An expert gives this evidence in the form of an expert report. 

If both parties provide expert evidence they will usually exchange it at the same time. Once exchanged, parties usually have 28 days to ask the other party questions on their expert report to help clarify it.

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The court may ask the parties to discuss the expert evidence to identify issues and try to agree on them. The court may then need to write a statement explaining what they agree with and why. 

What is CPR 35?

CPR 35 is one of the Civil Procedure Rules, which govern what you can and cannot do during court litigation. This rule also applies to commercial proceedings, which are part of civil litigation. CPR 35 specifically contains the rules about expert evidence in civil proceedings. 

CPR 35 explicitly states that an expert’s duty is to the court, not the person who may have instructed them to provide it. This includes anyone who has paid for their expertise. It also details:

• compliance in terms of the expert’s report;
• that the expert must write a statement at the end of their report to say that they understood and were abided by their duty to the court; and
• contain the instructions on which they were asked to write the report on.

What Do I Do If I Need Expert Evidence?

Ultimately, if you think your court case needs expert evidence, your solicitor should advise you of this and what to do to get the court’s permission. It is crucial to do this early in court litigation as, otherwise, timetabling issues may cause the court to refuse. You will need to say:

• who the expert is;
• what the field of expertise is;
• the issues you want them to cover; and 
• how much you think the expert evidence will cost.

Key Takeaways

During civil court proceedings such as commercial litigation, each party can provide evidence to support their argument and ultimately try to win their case. This includes expert evidence where an expert gives their independent opinion in a partial and unbiased way produced in an expert report. This evidence can help the court understand issues they may not usually be able to deal with, such as technical or scientific ones. The court has to permit you to use expert evidence, and it is up to the court to decide the extent of expert evidence needed, which will be produced in a report. Parties will exchange expert evidence and usually have time to talk to each other about it and form opinions. CPR 35 is one of the Civil Procedural Rules, and it relates explicitly to expert evidence. For example, it states that the expert’s duty is towards the court rather than the party that instructed them. If, during civil litigation, you think you may need expert evidence, your solicitor will need to request permission from the court, providing specific details in order to use this. 

If you need help understanding CPR 35 and expert evidence in legal proceedings, our experienced disputes and litigation solicitors can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. So call us today on 0808 196 8584 or visit our membership page.