In our latest article, MAPS managing director, David Stothard, considers the issues caused by the 20-page limit on expert reports and how best to overcome them.
Experts will have seen quite a lot of publicity around the 20-page limit for an expert report in the new intermediate track, Civil Procedure Rules (CPR). You may wonder how this is going to affect reports that you are instructed to write in cases which fall into the new regime. I wanted to share some points which I believe it is worth you, as the expert witness, keep in mind as more information is now becoming available since the rule was implemented on 1 October 2023.
The intermediate track broadly applies to civil cases valued at between £25,000 and £100,000. For personal injury cases, whether arising from a road traffic accident or another type of accident, the new rules only apply to cases where the accident happened on or after 1 October 2023, or in a disease case when the letter of claim was sent after that date. So, most medico-legal expert witnesses will not be receiving instructions under the new rules for some time to come.
The precise wording of the rules is important. CPR 28.14 (3)(c) says that ‘any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report’. But, this is prefaced by CPR 28.14 (3), which says that ‘the following provisions apply in respect of directions in the intermediate track, unless the court orders otherwise’ (my emphasis).
In other words, the 20-page limit is the starting point, unless the judge making the directions recognises that more than that number of pages are necessary.
It is possible that the 20-page limit is intended to apply to reports prepared pre-proceedings, but that is not yet certain. It is often difficult for lawyers to know the value of a case until the medical evidence has been obtained. An accident may seem to have had serious medical consequences for a victim and, consequently, a case has significant value which would warrant allocation to the intermediate track. However, when the victim has been examined and the records reviewed, the medical expert’s evidence shows that the consequences are not wholly caused by the accident. How is a lawyer or the medical expert witness expected to know whether their report should be limited to 20 pages at this point in the case?
Similarly, what happens if a case appears to be of a value which would warrant allocation to the multi track (over £100,000), but following the receipt of the medical expert witness evidence, which exceeds the 20-page limit because of the volume and complexity of the medical issues dealt with, it becomes clear that the case is actually of a value which will be allocated to the intermediate track. Is the lawyer in that case expected to instruct the expert to reduce the length of their report to 20 pages to comply with the intermediate track page limit? Is the expert entitled to make a further charge for doing that work and is that charge payable by the losing party in the case? There is scope for much confusion.
No one wants long reports for the sake of it and it may be possible to edit out some standard content from a report, particularly if this isn’t the first report which you have been asked to produce for this claim. That may be easier if the claim has reached the stage when directions are given by the court, that is, when court proceedings are under way. However, CPR 35.10 and PD 35 paragraph three set out the information which it is mandatory for an expert to include within their report. Those rules have not been changed by the 20-page limit and the specified content must still be included.
Nor has the expert’s duty to the court been changed. CPR 35.3(1) says that ‘it is the duty of experts to help the court on matters within their expertise’. If that cannot be done within the 20-page report limit, the expert’s duty to assist the court is likely to override the page limit.
I think that expert witnesses can confidently abandon any idea that small font sizes, narrow margins and the use of appendices (other than those expressly allowed by the rule) will be acceptable ways around the 20-page limit. Judges are unlikely to be impressed by such efforts and they may harm the credibility of the expert witness. There is some helpful guidance on what you can do from the Expert Witness Institute (EWI), here.
One of the biggest problems which we see for medical experts is that they must deal with large volumes of medical records/notes and reports from other expert witnesses. Technology has enabled ‘copy and paste’, but this obviously adds length to reports. It is important to carefully consider how you use this facility and whether it can be obviated by careful referencing to the other document or records.
If you are instructed in an intermediate track case and you believe that you are going to have to produce a report which you think is likely to exceed 20 pages, despite doing all that you can to edit it down, you will need to say why. The first thing to do is to let your instructing solicitor know that this is the situation and to seek their assistance.
Ideally, you will have been able to let your instructing solicitor know well in advance of any order for directions from the court so that they are able to explain the position to the judge and ask permission for you to exceed the 20-page maximum report length. I have heard it said that the 20-page limit is not arbitrary and was carefully considered by the Civil Procedure Rules Committee. That being the case, a judge is likely to want to see a persuasive explanation to dislodge it; which may require you to address a letter or email for the judge’s attention, setting out the reasons and justification for exceeding the limit. You will need to demonstrate your awareness of CPR 28.14 (3)(c) while explaining how you cannot comply with your CPR 35.3(1) duty to the court without exceeding the 20-page limit. Your instructing solicitor will be able to show this to the judge and their opponent.
If the 20-page limit is not dislodged by this approach then, ultimately, it is important to remember that as an expert witness, your primary duty to the court comes with the ability for you to obtain directions direct from the court, using CPR 35.14, which says:
(1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.
(2) Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions under paragraph (1) –
(a) to the party instructing them, at least 7 days before they file the requests; and
(b) to all other parties, at least 4 days before they file them.
(3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.
When you feel that you cannot comply with your overriding duty to the court and your duty to deal with the issues in the case properly within a report limited to 20 pages, then you can set that out in a letter addressed to the court, which is also disclosed in advance to your instructing solicitor and (through them) to the other parties in the case.
Such requests from medical expert witnesses direct to judges are extremely rare and it is hoped that receiving a well-reasoned request would cause the judge to re-consider the position even if they had not previously understood why the 20-page limit was inappropriate in this particular case.
There are detailed rules about when a case should exit the intermediate track, which include grounds of complexity and the length of time required for the trial. While these are matters for the lawyers to argue, it may be that when an expert report genuinely does require to be longer than 20 pages, this may give some grounds to the lawyers to argue that this is a case of such complexity or likely to require such time to deal with the issues at trial, that the case should be re-allocated from the intermediate track to the multi track.
I have mentioned previously that the EWI has sought reconsideration of the 20-page limit on expert reports. It is still to be seen whether this will be addressed. Although the CPRC has said that it will ‘consider’ it, from the comment mentioned above it does not sound promising, but we shall have to wait and see what happens. The CPRC is already certain to be making other changes to the new intermediate track rules in April 2024 in any event.
It is also worth stating that this limit on report length is part of the trend for the CPR to limit legal submissions and lay witness evidence, so it is not something that is solely aimed at expert witnesses. It is currently only applicable to intermediate track cases, but it must be assumed that it will be extended in time to the other case tracks. From the expert witnesses’ perspective, this whole topic raises the question of whether it will take longer to write a short report than to write a long one!