Rule 35.4 Court’s power to restrict expert evidenceI1

England and Wales

(1)

No party may call an expert or put in evidence an expert’s report without the court’s permission.

F1(2)

When parties apply for permission they must F2provide an estimate of the costs of the proposed expert evidence and identify—

(a)

the field in which expert evidence is required F3and the issues which the expert evidence will address; and

(b)

where practicable, the name of the proposed expert.

(3)

If permission is granted F4... it shall be in relation only to the expert named or the field identified under paragraph (2). F5The order granting permission may specify the issues which the expert evidence should address.

F6(3A)

Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.

(Paragraph 7 of F7Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)

F8(3B)

In a soft tissue injury claim, permission—

(a)

may normally only be given for one expert medical report;

(b)

may not be given initially unless the medical report is a fixed cost medical report. Where the claimant seeks permission to obtain a further medical report, if the report is from a medical expert in any of the following disciplines—

(i)

Consultant Orthopaedic Surgeon;

(ii)

Consultant in Accident and Emergency Medicine;

(iii)

General Practitioner registered with the General Medical Council; or

(iv)

Physiotherapist registered with the Health and Care Professions Council,

the report must be a fixed cost medical report.

(F93C)

In a claim for a whiplash injury, whether or not it is part of a claim for other injuries—

(a)

permission—

(i)

may normally only be given for one expert medical report in respect of the claim for the whiplash injury; and

(ii)

may not be given initially unless the medical report is a fixed cost medical report; and

(b)

where the claimant seeks permission to obtain a further medical report in respect of the claim for the whiplash injury only, the report must be a fixed cost medical report if the report is from a medical expert in any of the following disciplines—

(i)

Consultant Orthopaedic Surgeon;

(ii)

Consultant in Accident and Emergency Medicine;

(iii)

General Practitioner registered with the General Medical Council; or

(iv)

Physiotherapist registered with the Health and Care Professions Council.

(3D)

Where, in respect of a claim for a whiplash injury, the claimant lives outside England and Wales, but chooses to be examined in England or Wales, paragraph (3C) applies.

(3E)

Where the claimant obtains a medical report in respect of a more serious injury suffered on the same occasion as the whiplash injury, the claimant may be given permission to use that report instead of a fixed cost medical report under paragraph (3C) provided that—

(a)

the report is from a doctor who is listed on the General Medical Council’s Specialist Register; and

(b)

the report provides evidence of the whiplash injury.

(3F)

Unless paragraph (3D) applies, where, in respect of a claim for a whiplash injury—

(a)

the claimant lives outside England and Wales;

(b)

permission is given for a medical report,

the medical report (or, if there is more than one report, the first report) must be obtained from a person who is recognised by the country in which they practise as—

(i)

being a medical expert; and

(ii)

having the required medical qualifications for the purposes of diagnosis and prognosis of a whiplash injury.

(3G)

In this rule—

(a)

in respect of a soft tissue injury claim, ‘fixed cost medical report’ and ‘soft tissue injury claim’ have the meanings ascribed to them by paragraph 1.1(10A) and (16A), respectively, of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents; and

(b)

in respect of a claim for a whiplash injury, ‘fixed cost medical report’ and ‘whiplash injury’ have the meanings ascribed to them by paragraph 1.2(17) and (38), respectively, of the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents.

F10(4)

The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.

Annotations

Textual amendments

F1: Rule 35.4(2) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(e)
F2: Words in rule 35.4(2) inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 13(a) (with rule 22)
F3: Words in rule 35.4(2)(a) inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 13(b) (with rule 22)
F4: Words in rule 35.4(3) omitted (1.10.2009) by virtue of The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(f)
F5: Words in rule 35.4(3) inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 13(c) (with rule 22)
F6: Rule 35.4(3A) and words inserted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(g)
F7: Words in rule 35.4 substituted (6.4.2010) by The Civil Procedure (Amendment No.2) Rules 2009 (S.I. 2009/3390), rules 1(2), 18(a)
F8: Rule 35.4(3B)(3C) inserted (1.10.2014) by The Civil Procedure (Amendment No. 6) Rules 2014 (S.I. 2014/2044), rules 2, 5 (with rule 14)
F9: Rules 35.4(3C)-(3G) substituted for rule 35.4(3C) (31.5.2021) by The Civil Procedure (Amendment No. 2) Rules 2021 (S.I. 2021/196), rules 1(1), 7(a)
F10: Rule 35.4(4) substituted (1.10.2009) by The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(h)

Commencement

I1: Rule 35.4 in force at 26.4.1999, see Signature

Notes on Part 35

Textual amendments

F1: Words in Pt. 35 Table of Contents substituted (1.10.2009) by virtue of The Civil Procedure (Amendment) Rules 2009 (S.I. 2009/2092), rules 1(2), 5(a)