Question 1

What is the "overarching principle" regarding an expert's duty under the new rules?

Accepted Answer

The core principle, reinforced by Practice Direction 3-2025, is that an expert witness’s primary duty is to the Court or Tribunal, not to the party paying their fees. This duty overrides any obligation to the person instructing them. Experts must remain objective and unbiased, acting as a "friend of the court" rather than an advocate for their client. This independence must be maintained even under the pressure of legal proceedings, and experts are expected to change their minds if new facts emerge that challenge their initial conclusions.

Question 2

How should an expert report be structured to comply with CPR Part 35 and the 2025 guidelines?

Accepted Answer

Reports must be concise, focused strictly on the issues in dispute, and written in plain English for a non-expert judge. Technical jargon and complex data should be moved to a technical annex to keep the main narrative clear. The report must include a formal Statement of Truth and a Declaration of Duty, which serve as legal promises of the expert's integrity. Furthermore, experts must disclose all assumptions, identify the facts they relied upon, and even include initial analyses that may have produced results contrary to their client’s interests to ensure full transparency.

Question 3

What happens during an "Expert Meeting" and the subsequent "Joint Statement"?

Accepted Answer

An Expert Meeting is a formal process where experts from opposing sides meet—usually without their lawyers—to narrow the points of dispute. The goal is to be constructive and concede ground where appropriate rather than maintaining an entrenched position. Following this meeting, the experts produce a Joint Statement of agreed and disputed points. Lawyers may only provide guidance on the format or factual accuracy of this statement and are strictly forbidden from influencing the substantive professional views expressed within it.

Question 4

What is "Hot Tubbing" and how does it differ from traditional cross-examination?

Accepted Answer

"Hot Tubbing," or concurrent evidence, involves all experts sitting together in the witness box to answer questions from the judge simultaneously. It is a dynamic, live debate moderated by the court to identify differences in professional thinking. Unlike traditional cross-examination, which is often an adversarial "memory test" where notes are prohibited, experts in the "hot tub" are generally encouraged to have their reports and notes available so they can provide the most accurate technical answers possible.

Question 5

What are the consequences for an expert who fails to maintain independence or follow the rules?

Accepted Answer

The consequences of bias or procedural failure are severe and can include the court disregarding the expert's evidence "wholly or in part." Beyond the immediate case, judicial criticism is often published in public transcripts and judgments, creating a permanent "digital footprint" that can damage an expert's reputation for the rest of their career. Additionally, if an expert is found to have knowingly ignored key facts or acted as a "hired gun," they may face serious legal trouble regarding their signed Statement of Truth.

Expert witness rules are changing in the UK

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