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The AE pointed out that CPR 35.14 initially provided that an expert could request
directions from the court without giving notice to any party and that this was
considered particularly objectionable. This was changed to require an expert
contemplating this route, unless the court otherwise directs, first to serve a copy of his
proposed request for directions on the parties. This improves the procedure's
transparency. Nonetheless, the AE reports :-
"The opportunity given for the expert to ask the Court for Directions effectively on his own
motion has not been widely used. It does not appear to be much to the liking of either Judges
or Experts. Solicitors appear to positively dislike it. Although the right is useful we believe it
is very much a measure of last resort. This comment applies whether the expert is a Single
Joint or a Party Appointed Expert. With the court having to give permission for a named
expert to give evidence the (threat of) resignation is very serious and normally has the desired
effect of removing the necessity for the expert to approach the court directly. Similarly we
recommend the practice advocated in the ‘CPR Code of Guidance for Experts and those who
instruct them' ...... of requesting the instructing solicitor(s) to resolve the matter and if unable
to do so for them to apply to the court for Directions."
The Working Party considers that the disadvantages of such a rule considerably
outweigh its advantages and recommends against adoption of Proposal 39(e).
Recommendation 106: Proposal 39(e) (for permitting experts independently to
approach the court for directions) should not be adopted.
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