Should the right to admit expert evidence in civil litigation have a price? Should courts be able to restrict reliance on expert evidence, subject to the lowest bidder?
As extreme as that might sound in this country, that’s not a far cry from what recent amendments to the Civil Procedure Rules (CPR) Part 35, proposed by Lord Justice Jackson in the UK and applicable to England and Wales, seem to suggest.
The amendment, which was part of a larger reform measure proposed by Lord Justice Jackson aimed at reducing costs of civil proceedings, came into force in April of this year, adding new language to existing CPR 35.4 which authorizes a court to restrict expert evidence. The new language requires parties to provide a cost estimate of the proposed expert evidence to the court in certain cases and identify the issues that the expert will address as part of a party’s request for permission to use the expert evidence.
The amendment, contained in CPR 35.4(2), essentially authorizes the court to withhold permission to use expert evidence if the court decides the costs are too high. Specifically, the rule, as amended, states (amendments are underlined):
35.4 Court’s power to restrict expert evidence
(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.
(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.
Following the April 1, 2013 amendments to the CPR, most of the expert world was paying attention to hot tubbing – a steamy moniker given to a pilot practice now also embodied in Part 35 of the CPR which authorizes a court to direct experts to give evidence concurrently in a non-adversarial manner, where cross-examination is eliminated.
Meanwhile, this far less sexy – but arguably more critical – costs amendment to CPR 35.4 quietly made its way into the 2013 adopted reform measures.
Does the amendment propose giving too much power to the judiciary, in that it assumedly allows the court to restrict expert evidence it deems too expensive in proportion to the litigation or case? Does it somehow chip away at the notion that an expert’s opinion is supposed to be one that isindependently and objectively given, and one that is based on facts?
Do the “facts” have a price that is somehow proportional to the case or matter at hand?
If so, what factors does the judiciary propose to use in determining proportionality – one of the objectives reportedly at the heart of the reform measures targeted in the April 2013 amendments?
This Side of the Atlantic
Back on this side of the Atlantic, the U.S. Supreme Court seemed to say just the opposite, when it ruled last term that the potentially pricey cost of an expert couldn’t be used as grounds for a court to invalidate a contractual waiver of class arbitration (which we wrote about in July). As SCOTUS made abundantly clear, economic feasibility and the actual right to prove a remedy are two separate issues.
Your turn: Should expert costs be a factor in determining whether a party has permission from the court to offer certain expert evidence?