BL-2022-002117 - [2025] EWHC 2794 (Ch)

The principles to be applied are clear. The provision of expert evidence requires the permission of the Court (see CPR 35.4(1)) and such permission presupposes compliance in all material respects with the rules. The expert’s duty is to the Court, and this duty overrides any duty owed to the person instructing them or paying them; CPR 35.3. Expert evidence should be the independent product of the expert uninfluenced by the interests of the party instructing the expert in the litigation. The expert’s role is to provide independent assistance to the Court by way of objective unbiased opinion on matters within their expertise.

Where a joint statement is prepared pursuant to CPR 35.12 it is prepared for the benefit of the Court, not as a means of advancing the case of one or other party, and is a statement of the independent, objective and unbiased views which the experts honestly hold. Neither the parties nor their instructing solicitors should be involved in discussions between the experts in relation to the preparation of the joint statement (CPR PD35 paragraph 9(4)) or in the negotiation and drafting of a joint statement; see Dana UKAxle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC) at paragraph 77. The circumstances in which it is appropriate for parties or solicitors to intervene in relation to a joint statement are generally limited to circumstances where there is a serious risk that the Court may misunderstand or be misled by the terms of a joint statement; see BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) at [18]. Any such intervention should be done openly, so that everyone, including the trial judge, can see what has happened; BDW at [18].

Experts are expected to be familiar with their duties. A failure to comply with the rules may result in sanctions. One such sanction is the revocation of the permission granted to rely on expert evidence; Secretariat Consulting Pte Ltd v A Company [2021] EWCA Civ 6; [2021] 4 WLR 20 at paragraph 106. That is what occurred in Dana UK and in Andrews v Kronospan Ltd [2022] EWHC 479 (QB).