Maintained by the Ministry of Justice, the civil procedure rules (CPR) are used in all civil court cases in England and Wales. They apply to all aspects of court procedure and enable the courts to deal with cases justly and at a proportionate cost.
The civil procedure rules (CPR) are kept under constant review. To keep up with amendments, one should consult with the online CPR maintained by the Ministry. Divided into 89 parts, each with its attached practice direction, the CPR must be followed by all parties and their representatives. This includes surveyors asked to give evidence as a witness of fact or appointed as an expert witness. Surveyors cannot, of course, present a case in court on behalf of a client.
The general rule is that no evidence can be presented to a court by an expert unless that court has directed otherwise. An expert witness, while very often appointed by only one of the parties to a litigious case, owes their duty to the court and not to the party appointing them. Expert evidence is presented to the court by way of a written report unless the court directs otherwise – see paragraph 35.5 of the CPR.
Anyone preparing an expert witness report must be aware of the contents of Part 35 of the CPR and its accompanying practice statement. Regard should also be given to the Civil Justice Council’s guidance for the instructing of experts in civil claims. A chartered surveyor must also consult with the RICS Surveyors Acting as Expert Witnesses 4th edition, practice statement and guidance note, which is due to be updated in 2021.
The general format and content required of an expert’s report are contained in paragraph 35.10 of Part 35 and paragraphs 3.1–3.3 of the practice statement. Paragraph 3.3 states that an expert witness report must contain a statement of truth. We return to this below.
In the meantime, attention is drawn to the case of Liverpool Victoria Insurance Co. Ltd v Zafar  EWCA Civ 392. Dr Zafar faced a suspended prison sentence for falsifying his report on his instructing solicitor’s instructions and verifying it with a statement of truth. The Court of Appeal said it would not have suspended the sentence saying that “nothing other than an order for committal to prison will be sufficient.” Expert witnesses beware!
Returning to the statement of truth contained within any expert report, the contents are set out in paragraph 3.3 of Part 35’s practice statement. They read as follows:
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
Following the Dr Zafar case, the Ministry of Justice felt this statement of truth should go further and as from 1 October an additional sentence must be added:
“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
This amendment is to be made pursuant to the 122nd update to the CPR Practice Direction Amendments, paragraph 35. If acting as an expert witness, one should make sure one's PII cover protects the additional risk.
For years, the role of the expert witness has caused considerable concern in many quarters, including the judiciary. Courts have tried to order that one expert witness only appear in a court action but parties continue to wish to appoint ‘their own’ expert. So long as these expert witnesses do present their own, independent views, uninfluenced by the party appointing them, judges will have to continue to decide which expert evidence to accept. It does, however, present a very real problem to them. Hopefully, this latest amendment to the CPR will assist as it will underline with expert witnesses the vital importance of giving their true view.
Related competencies: Legal/regulatory compliance