UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
• CPR Part 35, which sets out the rules relating to experts and assessors; • Practice Direction 35, which supplements the above; • Guidance for the Instruction of Experts in Civil Claims (2014); and • Annex C to the Practice Direction (Pre-Action Conduct). The overarching principle in relation to expert evidence is that it should be restricted to that which is reasonably required to resolve the pro - ceedings (CPR Rule 35.1). The court’s power to restrict expert evidence also means that no party may call an expert or put an expert’s report in evidence without the court’s permission (CPR Rule 35.4). The court can also limit the use of oral expert evidence, and order evidence from a single joint expert. An “expert” is a person who has the requisite expertise to give or prepare expert evidence for the purposes of proceedings, and it is the expert’s over-riding duty to help the court on matters within their expertise (this duty over- rides any duty to the party who instructs them). Ordinarily, expert evidence is given in a writ - ten report. A party may put written questions to an expert about this report, and experts from opposing parties may be ordered to have dis - cussions in order to identify the issues, reach agreement where possible, and produce a joint statement setting out those areas on which they agree and disagree, with a summary of their rea - sons for disagreeing. The contents of an expert’s report must comply with the requirements set out in Practice Direc - tion 35 – in particular, there must be a state - ment of compliance, and the expert must set out the substance of their instructions and the
documents they have relied upon in forming their views. Expert evidence should be independent, provide objective unbiased opinions, and con - sider all material facts. Complex product liability claims often involve wide-ranging expert evidence, regarding both the cause of any alleged damage and a pleth - ora of medical evidence in personal injury and disease and illness cases. The cost of expert evidence is often a central feature in any prod - uct liability claim, and courts are increasingly limiting the use of experts or limiting the costs recoverable in relation to any particular expert’s evidence, in order to control costs. 2.9 Burden of Proof in Product Liability Cases In respect of each cause of action in product liability claims, the claimant bears the burden of proof. The standard of proof required, in respect of each discrete action, is to prove the case against the defendant on the balance of prob - abilities (civil standard). However, there are certain elements of prod - uct liability claims where the above may be different. For example, what a claimant must establish in order to prove causation where the defect increases a background risk inherent in the product (a doubling of the risk?) remains undecided. There may also be certain discrete issues where the defendant bears the burden of proving that something is relevant – eg, whether a particular factor should or should not be taken into account when determining “defect” . 2.10 Courts in Which Product Liability Claims Are Brought There is no prescribed court for bringing product liability claims. In civil proceedings, the choice of court is generally dictated by the value of the
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