CIVIL PROCEDURE BACK TO BASICS 77: THE COURT MUST KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4(2)

CPR 35.4(2) is often overlooked. This rule imposes a duty on a party applying for permission to rely on expert evidence to inform the court how much the expert is likely to cost.  This is often clear at the costs budgeting stage, however many application to rely on expert evidence fail to comply with this mandatory obligation.

THE RULE

(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.

JUDICIAL COMMENT: A MANDATORY REQUIREMENT

The rule was considered by Mr Justice Warby in Sloutsker -v- Romanova [2015] EWHC 81(QB) the judge adjourned an application at the claimant’s expenses.

“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