Civil way

Experts to tell the truth

There is more to the Pt 35 and PD35 changes than semantics. Honest. For a start, we now find an express requirement for proportionality in the putting of questions to an expert. And the joint statement by opposing experts is to set out and not simply show the issues on which they agree and disagree which is presumably the Rule Committee’s way of saying “Sock it to ‘em”.

The expert’s statement of truth verifying a report is revised. “I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those which are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.” Spot the differences? Well the revision would make it more difficult for the expert to fudge over facts—and now matters, to boot- which are not within his own knowledge. The vigilant will be attacking post 30 September 2009 reports with the old statement. The wording is mandatory and must not be modified.

The drive towards the single joint expert continues unabated. A new r 35.4(3A) for cases in the small claims and fast tracks beefs up what was already in the PD35 protocol for the instruction of experts. It is now provided that if permission is given for expert evidence (and don’t take it for granted that it will be given) it will normally be given for evidence from one expert on a particular issue.

The protocol is expanded to declare the unsurprising criteria to be applied in deciding whether a single expert is to be jointly instructed. Particularly relevant are (besides others) whether: it is proportionate to have separate experts in the light of the amount in dispute, as well as importance to the parties and complexity; there is likely to be a range of opinion; a party has already instructed an expert and whether this was in compliance with a PD or protocol; questions may not conclusively deal with all the issues which will require testing; and whether a conference may be required with the legal representatives, experts and other witnesses which may make instruction of a single joint expert impractical.

In mortgage possession cases, the notice to occupier has become the notice to tenant or occupier (it is to be so addressed) and the notice information and property address are to go to the housing department of the local authority (for filing purposes).

The pre-action protocol for mortgage possession claims is amended.

Postponement of a claim where the borrower has submitted a claim to a mortgage protection insurer and has demonstrated a reasonable expectation of eligibility for payment and an ability to pay any uninsured element of instalments is extended to mortgage support claims to the Department for Works and Pensions in like circumstances.

A completed mortgage protocol checklist with verifying statement of truth (form 123) is to be presented by the lender to the court on the day of the hearing with a copy to the borrower for any claim issued after 30 September 2009.

Some pertinent questions like “Summarise the number and dates, in the three months prior to the date of this checklist, you attempted to discuss with the defendant ways of repaying the arrears” and “Has the defendant indicated that the property will be or is being sold? If yes, explain why possession proceedings are continuing.”

Air Construction works

A circuit judge must generally build a Chinese wall between himself and a district judge in relation to a pending appeal from the latter to the former. In Brisset v Brisset [2009] EWCA Civ 679, [2009] All ER (D) 94 (Jul) the circuit judge had communicated with the district judge at first in writing and then orally about the substance of an appeal and although this had been disclosed to the parties, it was procedurally improper.

In an empathetic judgment, Wilson LJ recalled that when a Family Division judge he was so angry at what he regarded as the forensic misconduct of lawyers for an appellant against him that he drafted a letter to be sent to the Court of Appeal. Fortunately, he showed the draft to the President and accepted her unequivocal advice not to send it.

• Add new comment
• Printer-friendly version