CIVIL PROCEDURE BACK TO BASICS 66: THE COURT HAS TO KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4
A party seeking to rely on expert evidence requires permission from the court. It is surprising how often the rule requiring the court to be provided with details of the cost of that expert is overlooked.
“When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence”
THE RULE
CPR 35.4
(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.
(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –
(a) the field in which expert evidence is required and the issues which the expert evidence will address; and
(b) where practicable, the name of the proposed expert.
AN EXAMPLE OF THIS IN PRACTICE
The judgment of Mr Justice Warby in Sloutsker -v- Romanova [2015] EWHC 81(QB) makes thi spoint clerly.
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I set the hearing date as noted above, and a timetable for evidence, the hearing bundle and skeleton arguments. The defendant being now a litigant in person I directed the claimant to prepare the bundle. I did not grant permission to adduce expert evidence, but directed that any application for permission should be issued and served by no later than 4pm next Monday 26 January 2015, with the defendant to have an opportunity to submit representations in opposition by 4pm on Monday 2 February, and a decision to be made without a hearing as soon as possible after that, by me if available.
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I took this course for two main reasons. First, the claimant had given the defendant only informal notice of an intention to adduce expert evidence, without detail or supporting evidence. Secondly, the claimant had not complied with the mandatory requirement of CPR 35.4(2), that an applicant for permission to adduce expert evidence “must provide an estimate of the costs of the proposed expert evidence”. Without that estimate I was in no position to consider whether and if so how to exercise the court’s power under CPR 35.4(4) to “limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party“. I also directed that no evidence other than evidence served in accordance with my order would be considered at the hearing of the application unless the court gives permission.
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I ordered the claimant to pay the costs of the hearing today and any costs of, caused by, or thrown away by the vacation of the hearing date. Although in my judgment the defendant acted unreasonably in that she failed to lodge a bundle as required by the Queen’s Bench Guide, did not respond in a timely way to Hamlins’ correspondence, and did not address any correspondence to the court, the claimant’s share of the responsibility for the hearing being ineffective was considerably greater. He failed to prepare evidence, or to make any application for permission to adduce expert evidence, in good time. He would have sought an adjournment to allow his new solicitors to do those things, regardless of the defendant’s conduct. I have reviewed the correspondence between the parties’ previous solicitors relating to the preparation of evidence and having done so I cannot see any real justification for the claimant’s failures. In any event they are not the fault of the defendant, who should not be out of pocket as a result.