In this article Giles Eyre considers the amendment to the Practice Direction on Statements of Truth and the issues relating to the Declaration required in every expert report.
Of course, all well-trained court experts ensure that their court reports comply with all of the requirements of the Civil Procedure Rules before signing off on them. After all, it is only necessary to have read, understood and followed the requirements and guidance set out in Part 35 of the Civil Procedure Rules, the Practice Direction to Part 35 and the Guidance for the Instruction of Experts in Civil Claims (2014), and to have remained independent, stayed within their area of expertise and assisted the court throughout.
Contents of the report
The Practice Direction at para 3.2 contains a list of matters which must be within the expert’s report – no ifs, no buts. In summary:
- The expert’s qualifications;
- Any literature relied on;
- All material facts and instructions;
- Identification of the facts in the report within the expert’s own knowledge;
- Information about any examination, measurement, test or experiment used in the report;
- Information about any range of opinion;
- A summary of conclusions;
- Any qualification to any opinion.
Expert’s Declaration
In addition, the report must contain a statement (commonly referred to as the Declaration) that the expert:
- Understands their duty to the court and has complied with it;
- Is aware of the requirements of Part 35, the Practice Direction and the Guidance. [35PD 3.2(9)]
Although there is no express requirement in the Practice Direction to have complied with Part 35, the Practice Direction and the Guidance, that should be the consequence of complying with all aspects of the expert’s duty to the court. In any event, the Guidance states that this declaration by the expert must state that the expert is aware of and has complied with Part 35, the Practice Direction and the Guidance (para 52 of the Guidance). [My emphasis]
Unlike in the case of the Statement of Truth (see below) there is no prescribed formula of words required for complying with this rule. The Practice Direction does not require that the expert provides a list of all of those requirements and confirmation that they have been complied with. Different, and changing, opinions exist as to the format of the declaration made by an expert at the conclusion of the expert report.
The most basic declaration would read:
I confirm that I understand my duty to the court and that I have complied with that duty.
I am aware of and have complied with the requirements of Part 35 of the Civil Procedure Rules, the Practice Direction to Part 35 and the Guidance for the Instruction of Experts in Civil Claims 2014.
What is the expert, in fact, stating that they have complied with, in addition to those matters required to be in the report under para 3.2 of 35PD and summarised above?
- I understand that my duty is to help the court on matters within my expertise and that this duty overrides any obligation to the person from whom I have received instructions or by whom I am paid [CPR 35.3]
- I have stated the substance of all material instructions, whether written or oral, on the basis of which the report is written [CPR 35.10(3)]
- My evidence is my independent product, uninfluenced by the pressures of litigation [35PD 2.1]
- The opinions I have expressed are objective, unbiassed and based on matters within my own expertise and I have not adopted the role of an advocate for the party instructing me [35PD 2.2] I have made clear if a question or issue falls outside my area of expertise [35PD 2.4(a)]
- I have considered whether there is any conflict of interest and declared any potential conflict identified.
[If using this format, I suggest omitting the references in square brackets, which I have included only for easy reference by the reader of this article.]
To include the 35PD 3.2 matters, the following could be added:
- I have given details of any literature or other material relied on in making the report [35PD 3.2(2)]
- I have set out the substance of all facts which are material to the opinion expressed in this report or upon which my opinions are based [35PD 3.2(3)]
- I have made clear which of the facts stated in the report are within my own knowledge [35PD 3.2(4)]
- I have said when there is a range of opinion on a relevant issue and summarised the range of opinions and I have formed my own independent view as to the appropriate point in that range applicable to this case and given reasons for that view [35PD 3.2(6)]
The three remaining requirements under 35PD 3.2 should have been dealt with in any event within the report:
- The expert’s qualifications i.e. the expert’s CV [35PD 3.2(1)]
- Who carried out any examinations etc, their qualifications and whether the expert supervised the examination etc [35PD 3.2(5)]
- Whether the opinion is qualified [35PD 3.2(8)]
Declaration or Checklist
It is therefore a matter of individual style whether, in the report, the expert sticks with the basic declaration I set out above or extends it to cover all or part of (1) to (9) above. However much is put into the declaration, the expert needs to ensure, perhaps through use of a checklist, that all of the points above are in fact covered within the report, even if not expressly declared at the end of the report. A failure to do so will open the expert up to an attack in cross-examination.
Statement of Truth
It is hard to believe that any court expert signing a Statement of Truth at the end of their expert report in accordance with PD35 3.3 has any real doubt that were the statement found to be knowingly false then the expert would be open to proceedings for contempt, and that would put the expert in jeopardy of imprisonment – see for example Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392.
However, to ensure that the fear of prison runs through every expert as they sign off on a report, the Practice Direction is to be amended as of 1st October 2020 to add, at the end of the existing statement of truth, which currently reads:
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
the following additional sentence:
I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Every expert report from 1st October 2020 must have this additional sentence at the end of the statement of truth, to remind the expert that the ‘starting point’ for someone found guilty of contempt is a sentence of imprisonment ‘well in excess of 12 months’, according to Zafar.
What needs to be done for every report signed off from 1st October 2020 is probably best done from today, lest it be omitted after 30th September. Change your precedent now.
Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk) and through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .