Statutory Instruments 1998 No. 3132 (L. 17)
The Civil Procedure Rules 1998
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PART 35

EXPERTS AND ASSESSORS




Contents of this Part
Duty to restrict expert evidence Rule 35.1
Interpretation Rule 35.2
Experts - overriding duty to the court Rule 35.3
Court's power to restrict expert evidence Rule 35.4
General requirement for expert evidence to be given in written report Rule 35.5
Written questions to experts Rule 35.6
Court's power to direct that evidence is to be given by a single joint expert Rule 35.7
Instructions to a single joint expert Rule 35.8
Power of court to direct party to provide information Rule 35.9
Contents of report Rule 35.10
Use by one party of expert's report disclosed by another Rule 35.11
Discussions between experts Rule 35.12
Consequence of failure to disclose expert's report Rule 35.13
Expert's right to ask court for directions Rule 35.14
Assessors Rule 35.15

Duty to restrict expert evidence
     35.1 Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Interpretation
    
35.2 A reference to an "expert" in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.

Experts - overriding duty to the court
    
35.3  - (1) It is the duty of an expert to help the court on the matters within his expertise.

    (2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

Court's power to restrict expert evidence
    
35.4  - (1) No party may call an expert or put in evidence an expert's report without the court's permission.

    (2) When a party applies for permission under this rule he must identify - 

    (a) the field in which he wishes to rely on expert evidence; and

    (b) where practicable the expert in that field on whose evidence he wishes to rely.

    (3) If permission is granted under this rule it shall be in relation only to the expert named or the field identified under paragraph (2).

    (4) The court may limit the amount of the expert's fees and expenses that the party who wishes to rely on the expert may recover from any other party.

General requirement for expert evidence to be given in a written report
    
35.5  - (1) Expert evidence is to be given in a written report unless the court directs otherwise.

    (2) If a claim is on the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

Written questions to experts
    
35.6  - (1) A party may put to - 

written questions about his report.

    (2) Written questions under paragraph (1) - 

unless in any case,

    (3) An expert's answers to questions put in accordance with paragraph (1) shall be treated as part of the expert's report.

    (4) Where - 

the court may make one or both of the following orders in relation to the party who instructed the expert - 

Court's power to direct that evidence is to be given by a single joint expert
    
35.7  - (1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to given by one expert only.

    (2) The parties wishing to submit the expert evidence are called "the instructing parties".

    (3) Where the instructing parties cannot agree who should be the expert, the court may - 

Instructions to a single joint expert
    
35.8  - (1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, each instructing party may give instructions to the expert.

    (2) When an instructing party gives instructions to the expert he must, at the same time, send a copy of the instructions to the other instructing parties.

    (3) The court may give directions about - 

    (4) The court may, before an expert is instructed - 

    (5) Unless the court otherwise directs, the instructing parties are jointly and severally liable(GL) for the payment of the expert's fees and expenses.

Power of court to direct a party to provide information
    
35.9 Where a party has access to information which is not reasonably available to the other party, the court may direct the party who has access to the information to - 

Contents of report
    
35.10  - (1) An expert's report must comply with the requirements set out in the relevant practice direction.

    (2) At the end of an expert's report there must be a statement that - 

    (3) The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

    (4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions - 

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.

Use by one party of expert's report disclosed by another
    
35.11 Where a party has disclosed an expert's report, any party may use that expert's report as evidence at the trial.

Discussions between experts
    
35.12  - (1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to - 

    (2) The court may specify the issues which the experts must discuss.

    (3) The court may direct that following a discussion between the experts they must prepare a statement for the court showing - 

    (4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.

    (5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Consequence of failure to disclose expert's report
    
35.13 A party who fails to disclose an expert's report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.

Expert's right to ask court for directions
    
35.14  - (1) An expert may file a written request for directions to assist him in carrying out his function as an expert.

    (2) An expert may request directions under paragraph (1) without giving notice to any party.

    (3) The court, when it gives directions, may also direct that a party be served with - 

Assessors
    
35.15  - (1) This rule applies where the court appoints one or more persons (an "assessor") under section 70 of the Supreme Court Act 1981[42] or section 63 of the County Courts Act 1984[43].

    (2) The assessor shall assist the court in dealing with a matter in which the assessor has skill and experience.

    (3) An assessor shall take such part in the proceedings as the court may direct and in particular the court may - 

    (a) direct the assessor to prepare a report for the court on any matter at issue in the proceedings; and

    (b) direct the assessor to attend the whole or any part of the trial to advise the court on any such matter.

    (4) If the assessor prepares a report for the court before the trial has begun - 

    (a) the court will send a copy to each of the parties; and

    (b) the parties may use it at trial.

    (5) The remuneration to be paid to the assessor for his services shall be determined by the court and shall form part of the costs of the proceedings.

    (6) The court may order any party to deposit in the court office a specified sum in respect of the assessor's fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.

    (7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament.



PART 36

OFFERS TO SETTLE AND PAYMENTS INTO COURT




Contents of this Part
Scope of this Part Rule 36.1
Part 36 offers and Part 36 payments - general provisions Rule 36.2
A defendant's offer to settle a money claim requires a Part 36 payment Rule 36.3
Defendant's offer to settle the whole of a claim which includes both a money claim and a non-money claim Rule 36.4
Form and content of a Part 36 offer Rule 36.5
Notice of a Part 36 payment Rule 36.6
Offer to settle a claim for provisional damages Rule 36.7
Time when a Part 36 offer or a Part 36 payment is made and accepted Rule 36.8
Clarification of a Part 36 offer or a Part 36 payment notice Rule 36.9
Court to take into account offer to settle made before commencement of proceedings Rule 36.10
Time for acceptance of a defendant's Part 36 offer or Part 36 payment Rule 36.11
Time for acceptance of a claimant's Part 36 offer Rule 36.12
Costs consequences of acceptance of a defendant's Part 36 offer or Part 36 payment Rule 36.13
Costs consequences of acceptance of a claimant's Part 36 offer Rule 36.14
The effect of acceptance of a Part 36 offer or a Part 36 payment Rule 36.15
Payment out of a sum in court on the acceptance of a Part 36 payment Rule 36.16
Acceptance of a Part 36 offer or a Part 36 payment made by one or more, but not all, defendants Rule 36.17
Other cases where a court order is required to enable acceptance of a Part 36 offer or a Part 36 payment Rule 36.18
Restriction on disclosure of a Part 36 offer or a Part 36 payment Rule 36.19
Costs consequences where claimant fails to do better than a Part 36 offer or a Part 36 payment Rule 36.20
Costs and other consequences where claimant does better than he proposed in his Part 36 offer Rule 36.21
Interest Rule 36.22
Deduction of benefits Rule 36.23

Scope of this Part
     36.1  - (1) This Part contains rules about - 

    (a) offers to settle and payments into court; and

    (b) the consequences where an offer to settle or payment into court is made in accordance with this Part.

    (2) Nothing in this Part prevents a party making an offer to settle in whatever way he chooses, but if that offer is not made in accordance with this Part, it will only have the consequences specified in this Part if the court so orders.

(Part 36 applies to Part 20 claims by virtue of rule 20.3)

Part 36 offers and Part 36 payments - general provisions
    
36.2  - (1) An offer made in accordance with the requirements of this Part is called - 

(Rule 36.3 sets out when an offer has to be made by way of a payment into court)

    (2) The party who makes an offer is the "offeror".

    (3) The party to whom an offer is made is the "offeree".

    (4) A Part 36 offer or a Part 36 payment - 

    (5) A Part 36 offer or a Part 36 payment shall not have the consequences set out in this Part while the claim is being dealt with on the small claims track unless the court orders otherwise.

(Part 26 deals with allocation to the small claims track)

(Rule 27.2 provides that Part 36 does not apply to small claims)

A defendant's offer to settle a money claim requires a Part 36 payment
    
36.3  - (1) Subject to rules 36.5(5) and 36.23, an offer by a defendant to settle a money claim will not have the consequences set out in this Part unless it is made by way of a Part 36 payment.

    (2) A Part 36 payment may only be made after proceedings have started.

(Rule 36.5(5) permits a Part 36 offer to be made by reference to an interim payment)

(Rule 36.10 makes provision for an offer to settle a money claim before the commencement of proceedings)

(Rule 36.23 makes provision for where benefit is recoverable under the Social Security

(Recovery of Benefit) Act 1997[
44])

Defendant's offer to settle the whole of a claim which includes both a money claim and a non-money claim
     36.4  - (1) This rule applies where a defendant to a claim which includes both a money claim and a non-money claim wishes - 

    (2) The defendant must - 

    (3) The Part 36 payment notice must - 

(Rule 36.6 makes provision for a Part 36 payment notice)

    (4) If the claimant gives notice of acceptance of the Part 36 payment, he shall also be taken as giving notice of acceptance of the Part 36 offer in relation to the non-money claim.

Form and content of a Part 36 offer
    
36.5  - (1) A Part 36 offer must be in writing.

    (2) A Part 36 offer may relate to the whole claim or to part of it or to any issue that arises in it.

    (3) A Part 36 offer must - 

    (4) A defendant may make a Part 36 offer limited to accepting liability up to a specified proportion.

    (5) A Part 36 offer may be made by reference to an interim payment.

(Part 25 contains provisions relating to interim payments)

    (6) A Part 36 offer made not less than 21 days before the start of the trial must - 

    (7) A Part 36 offer made less than 21 days before the start of the trial must state that the offeree may only accept it if - 

(Rule 36.8 makes provision for when a Part 36 offer is treated as being made)

    (8) If a Part 36 offer is withdrawn it will not have the consequences set out in this Part.

Notice of a Part 36 payment
    
36.6  - (1) A Part 36 payment may relate to the whole claim or part of it or to an issue that arises in it.

    (2) A defendant who makes a Part 36 payment must file with the court a notice ("Part 36 payment notice") which - 

(Rule 25.6 makes provision for an interim payment)

(Rule 36.4 provides for further information to be included where a defendant wishes to settle the whole of a claim which includes a money claim and a non-money claim)

(Rule 36.23 makes provision for extra information to be included in the payment notice in a case where benefit is recoverable under the Social Security (Recovery of Benefit) Act 1997)

    (3) The court will serve the Part 36 payment notice on the offeree unless the offeror informs the court, when the money is paid into court, that the offeror has served the notice.

    (4) Where the offeror serves the Part 36 payment notice he must file a certificate of service.

(Rule 6.10 specifies what must be contained in a certificate of service)

    (5) A Part 36 payment may be withdrawn only with the permission of the court.

Offer to settle a claim for provisional damages
    
36.7  - (1) A defendant may make a Part 36 payment in respect of a claim which includes a claim for provisional damages.

    (2) Where he does so, the Part 36 payment notice must specify whether or not the defendant is offering to agree to the making of an award of provisional damages.

    (3) Where the defendant is offering to agree to the making of an award of provisional damages the payment notice must also state - 

    (4) Where a Part 36 payment is - 

the Part 36 payment will have the consequences set out in rule 36.13, unless the court orders otherwise.

    (5) If the claimant accepts the Part 36 payment he must, within 7 days of doing so, apply to the court for an order for an award of provisional damages under rule 41.2.

(Rule 41.2 provides for an order for an award of provisional damages)

    (6) The money in court may not be paid out until the court has disposed of the application made in accordance with paragraph (5).

Time when a Part 36 offer or a Part 36 payment is made and accepted
    
36.8  - (1) A Part 36 offer is made when received by the offeree.

    (2) A Part 36 payment is made when written notice of the payment into court is served on the offeree.

    (3) An improvement to a Part 36 offer will be effective when its details are received by the offeree.

    (4) An increase in a Part 36 payment will be effective when notice of the increase is served on the offeree.

    (5) A Part 36 offer or Part 36 payment is accepted when notice of its acceptance is received by the offeror.

Clarification of a Part 36 offer or a Part 36 payment notice
    
36.9  - (1) The offeree may, within 7 days of a Part 36 offer or payment being made, request the offeror to clarify the offer or payment notice.

    (2) If the offeror does not give the clarification requested under paragraph (1) within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that he does so.

    (3) If the court makes an order under paragraph (2), it must specify the date when the Part 36 offer or Part 36 payment is to be treated as having been made.

Court to take into account offer to settle made before commencement of proceedings
    
36.10  - (1) If a person makes an offer to settle before proceedings are begun which complies with the provisions of this rule, the court will take that offer into account when making any order as to costs.

    (2) The offer must - 

    (3) If the offeror is a defendant to a money claim - 

    (4) An offeree may not, after proceedings have begun, accept - 

without the permission of the court.

    (5) An offer under this rule is made when it is received by the offeree.




Notes


[42] 1981 c.54.back

[43] 1984 c.28. Section 63 was amended by S.I. 1998/2940.back

[44] 1997 c.27.back



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