Related Sector: Expert Witness
Rules creating the new intermediate track in civil claims in England and Wales will also limit the length of experts reports to 20 pages. With the rules coming into force on 1st October, what does this mean for experts producing written evidence for use in the intermediate track?
Rule 8 of the Civil Procedure (Amendment No.2) Rules 2023 (“CPA2”) introduces a new CPR26 which creates the new intermediate track. This lies between the fast track and multi-track and covers claims valued between £25,000 and £100,000.
Rule 10 introduces a new CPR 28, which sets out standard directions to be made when cases are allocated to the fast and the intermediate tracks.
Rule 14(3)(c) of CPR 28 clearly states that: “any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report.”
This will obviously be of concern to many experts as understandably, those limitations may make it hard for them to communicate their opinion on the issues clearly and fully.
This brief article clarifies what claims are brought within these provisions and examines the implications for the expert witness.
Which claims come within the intermediate track?
Firstly, the intermediate track only covers civil claims in England and Wales valued between £25,000 and £100,000. Claims below £25,000 will go to the fast track; claims above the £100,000 will go to the multi-track. Neither the fast track nor the multi-track has a page limit for expert reports.
Secondly, it only applies to claims where proceedings are issued on or after 1st October 2023 (CPA2, rule 2(i)). Claims issued before 1st October will not be transferred across to the intermediate track but will continue in their current track.
Thirdly, in personal injury claims, other than disease claims, it only applies where the cause of action accrued on or after 1st October 2023. Where there is a disease claim, it only applies where no letter of claim has been sent before 1st October 2023.
Fourthly, the court retains a discretion to allocate a case to the multi-track if that is in the interests of justice (CPR26.9(9)). That leaves a wide discretion to the court to allocate appropriately and allows the court to allocate complex cases to the multi-track even though their value is below £100,000. The 20-page restriction does not apply in the multi-track.
That discretion is emphasised in CPR28.14(3)(c), which introduces the 20-page limit with the words “unless the courts orders otherwise”.
Fifthly, CPR26.9(10) identifies a number of types of claims which must be allocated to the multi-track in any event:
(a) Mesothelioma or asbestos lung disease claims.
(b) Clinical negligence claims, unless they are for less than £100,000 and both breach and causation have been admitted (ie quantum only claims).
(c) Claims for harm, abuse or neglect of or by children or vulnerable adults.
(d) Claims which could be heard by a jury.
(e) Some claims against the police.
The implications for expert witnesses
Any expert instructed in a claim which is allocated to the intermediate track, will be limited to producing a report which is no more than 20 pages. Your instructing party should tell you, on instruction, whether or not you will be subject to that limitation.
It will be wise to clarify that during the process of being instructed. You can, for example, put a clause into your terms and conditions, requesting that you are informed promptly if the case is likely to be allocated to the intermediate track.
If you are subject to the 20-page limit, ask yourself: can I help the court on matters within my expertise within the page limit?
If you can, without compromising the quality of your report, then produce a 20-page report.
If you cannot, contact your instructing party immediately and explain exactly why you think it is not possible. It will be helpful to set your reasoning carefully so that they can then make any necessary representation to the court, to persuade the court to lift the restriction. It may be because of the complexity of the facts, the area of expertise or the issues within that expertise.
If possible, give an estimate of the likely number of pages needed.
Remember, these standard directions are subject to the court’s discretion to order that the limit should not apply.
Final thoughts for expert witnesses
Experts should bear in mind that the courts have been indicating for many years now that the quantity of material put before judges is too great. Sir Geoffrey Vos, the Master of the Rolls (head of civil justice) is on record as saying that both the number of experts and the length of their reports have grown exponentially in recent years.
There is, therefore, an overall “direction of travel” on this issue: the judges want you to produce your reports in a user friendly, accessible way; brevity is key.
It is a matter of distillation not dilution.
Bond Solon has been working with experts on their court reports for more than 20 years now, both on the Excellence in Report Writing course and the Masterclass in Report Writing. For experts who are already producing reports, it is worth coming to the Masterclass and having one of your reports scrutinised by the trainer and the other delegates.
All experts have to grapple with the skill, craft and challenge of writing clear, succinct and comprehensive reports for court – come and share your experience with others and learn from them, as well as from the Bond Solon trainer.
Particular thanks go to Mr. Rod Appleyard for drawing this change to my attention.
Author: Nicholas Deal
This article was first published on the 26 September 2023
26 Sep 2023 16:01
A very helpful, informative and timely article. Thank you very much.
Jim Quaife - Arboricultural Consultant - Registered with the Arboricultural Association
26 Sep 2023 16:58
The substance of a report should be brief and all technical/record/photographic/data evidence should be in appendices. I assume that this directive does not include appendices?
Fortunately where trees are material a report is generally brief.
Dr Lisa Kouyoumjian-Stanton - Consultant Psychiatrist and EMDR Therapist
26 Sep 2023 17:51
To be honest this feels like the final straw for me. I will think it over but I can’t see I will continue as an expert. We have worked for years accepting that we must only be paid 20 h in legally aided cases (all mine are or are Pro Bono) despite on average working 40h per case (reflected in my work logs) I was taking on complex, distressing cases with significant documentation how can I make a report understandable for the Judge with my specialism and all the documents to précis in 20 pages. This puts me forcibly in mind of the Beeching Cuts to the railway. It feels to me to be similarly arbitrary and unscientific so a claim for £25,000 will be described in same number of pages as that for £100,000 you see how ridiculous that is? My aim as I always stated was to help the court understand I simply do not see that happening and judging by the instructions I have had there is a terrible need for female psychiatrists working in trauma. But there is only so much I can take.
G. Philip Wilde - Consultant Orthopaedic Surgeon
26 Sep 2023 18:45
I applaud this.
I am reminded of a proverb oft cited by the great orthopaedic teacher Mr A G Apley.
Father writing to his son. 'please forgive my long letter, I don't have time to write a short one'.
Russell Lutchman - Consultant Psychiatrist
26 Sep 2023 21:46
The 20 page limit does not seem to specify font sizes and line-spacing. Does this mean that we can use 10pt instead of 12pt fonts and reduce not use 1.5 line spacing? 9pt font may upset the judges - we don't want that.
In addition it says nothing about margins on the page - so that seems to mean we can cram text to full limit of the page and leave very small margins.
Header and footer sizes can be reduced to a bare minimum.
Dr G Spoto - Consultant Psychiatrist
26 Sep 2023 21:49
The most unnecessarily prolix reports ( and very tedious ) are Psychology Reports in the Family Courts . Psychiatric reports are usually concise.
However In the vast majority of Psychiatric Reports the medical records alone ( which must be reviewed as part of the instructions ) will take up the page limit
There must be variation across the medical specialties but the new rules seem to adopt instead a totally Ill conceived “ one size fits all “ policy.
Experts rarely concern themselves with monetary issues in a specific case but they will now have to do so routinely before accepting the instructions , distorting their practice and detrimentally affecting a field already plagued by recruitment shortages
The research underlying the new rules ( if any ) should have been disclosed before introducing the new rules and this must be disclosed without delay
Rod Appleyard - Fenestration & building envelope defects investigator
27 Sep 2023 09:36
Having given this some considerable thought due to the implications, I don't thing that reports will get smaller. As an inscrutable bunch we experts are I think the result will be that the appendices will get bigger and a re-shuffle of certain items/headings will occur.
John Cranna - Structural Engineer
27 Sep 2023 11:34
In the last court case where I gave evidence I was criticised by counsel cross examining me that my report was too short. I replied 'quality before quantity'!! I also should have replied, but did not want to make a fuss, that although the text part of my report was 10 pages long (the other side's expert report was about 40 pages long) that the 30 pages of calculations in the appendix were a crucial part of the report as they showed the steel structure was safe - the other side was saying it wasn't AND the other expert had not done any calculations for himself!