Instructing a medical expert under CPR Part 35
A clear letter of instruction and a complete set of records are the two things that most affect how quickly, and how usefully, a medical expert can report.
The expert's duty
Under CPR 35.3, an expert's overriding duty is to help the court on matters within their expertise. That duty overrides any obligation to the party instructing or paying them. A report that reads as advocacy will carry little weight, so the most useful expert is one who is independent from the start and says so clearly where the evidence is against the instructing party.
What to include in the letter of instruction
- The parties and the claim: who acts for whom, the court or likely court, and the stage the case has reached.
- The questions: specific, numbered questions on breach of duty, causation, or condition and prognosis, rather than a general request for "an opinion".
- The relevant standard: the date range of the care in issue and the specialty and grade of the clinicians involved.
- Key dates: the date the report is needed, any court deadlines and the limitation position.
- The documents: a paginated, indexed list of the records and statements provided.
- Fees and terms: agreed in advance, including fees for answering questions, joint discussions and attending court.
Remember that under CPR 35.10(3) the report must state the substance of all material instructions. Instructions are not privileged against disclosure once relied on, so they should be written on the basis that the court may see them.
Which records to send
Delays most often come from incomplete records. For a clinical negligence report, please send the complete hospital records for the relevant period (medical and nursing notes, observation, fluid and drug charts, results and imaging reports), the GP records, relevant correspondence, any serious incident or complaint investigation, and the witness statements once exchanged. Records should be in date order and paginated, with any gaps identified.
What the report will contain
A report under Practice Direction 35 sets out the expert's qualifications, the material relied on, a summary of the facts and instructions, any range of opinion with reasons for the opinion reached, a summary of conclusions, and the statement of truth and declaration of the expert's understanding of their duty to the court. On breach, the opinion is given against the accepted test of a responsible body of practitioners in the relevant field, considering whether that view withstands logical analysis; on consent, against the patient-centred test in Montgomery.
After the report
Written questions to the expert may be put within 28 days of service of the report (CPR 35.6), for the purpose of clarification. Where both sides have experts, the court will usually direct a discussion between them and a joint statement of the issues agreed and not agreed (CPR 35.12). It helps to agree in advance the timescale and fees for these stages.
Single joint experts
For condition and prognosis, or lower-value claims, the parties may instruct a single joint expert. Instructions may come from both parties, and the expert must send a copy of any instructions to the other side. We accept instruction as a single joint expert.
Conflict check first. Before any records are sent, we confirm that there is no conflict of interest, including any previous private advisory work for the claimant in the same matter.
This article is a general guide for practitioners. It is not legal advice, and the Civil Procedure Rules, Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims should always be checked in their current form.