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For the foregoing reasons and in the light of consultees' responses, the Working Party
considers a more general power to exclude expert evidence unnecessary and
recommends against adoption of Proposal 38.
Recommendation 101: Proposal 38 (for giving the court greater discretionary
powers to exclude expert evidence) should not be adopted.
In the Interim Report,
mention was also made of possible benefits to be derived
from adopting certain ancillary rules. These included :-
(a)
CPR 35.4(4), giving the court power to cap recoverable expert fees;
(b)
CPR 35.6, allowing a party one chance to put written questions to an expert to
clarify his report; and,
(c)
CPR 35.9 enabling a party access to information held by the other side but not
reasonably available to himself.
In its submission, the AE indicated that the experience in England and Wales is that :-
(a)
CPR 35.4(4) is not used in practice;
(b)
CPR 35.6 is "a useful power which, when properly used, can be of significant
benefit saving both time and costs." However, they caution that it is often
misused and indeed "abused by what is perceived to be a significant proportion
of parties." In particular, questions which plainly go way beyond "clarification"
are sometimes put months after the report was issued; and,
(c)
CPR 35.9 is rarely used since the information needed is generally obtained
through discovery.
In the light of these comments, the Working Party considers that adoption of such
rules is not advisable.
Notes
At §493.
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