CIVIL PROCEDURE BACK TO BASICS 67: EXPERTS ASKING THE COURT FOR DIRECTIONS: THIS CAN REALLY CUT THE MUSTARD…

One, unusual, aspect of the decision in Mustard v Flower & Ors [2019] EWHC 2623 (QB) is that the experts had sought directions from the court. This brings attention to the (apparently) little used provisions of CPR 35.14.  Experts have the right to file written requests at court for directions to assist them in carrying out their functions.

 

THE RULE

“Expert’s right to ask court for directions

35.14

(1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.

(2) Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions under paragraph (1) –

(a) to the party instructing them, at least 7 days before they file the requests; and

(b) to all other parties, at least 4 days before they file them.

(3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.”

COMMENTS ON THIS RULE IN MUSTARD

Master Davis observed

“I have never before encountered a set of questions to experts even remotely approaching the scale and complexity of these and I have never known questions to provoke letters to the court from an expert or group of experts phrased in terms such as the present. (Indeed, letters of any kind from experts to the court seeking directions under CPR rule 35.14 are very rare. I consulted the longest serving Master, Master Yoxall, on this matter. He had received questions from an expert on just two occasions in 18 years.)”

THE APPLICATION OF THE RULE IN MUSTARD

In Mustard the Master ordered that the experts need not answer the lengthy and voluminous questions put by the claimant’s lawyers.   He also took steps to ensure that the questions could not appear again in another guise – in any agendas for experts.