The Effect of the Fact/Opinion Distinction on CPR r. 35.2: Kirkman v Euro Exide Corporation; Gall v Chief Constable of the West Midlands

Date01 April 2008
DOI10.1350/ijep.2008.12.2.141
AuthorDéirdre Dwyer
Published date01 April 2008
Subject MatterCase Notes
CASE NOTES
EFFECT OF THE FACT/FICTION DISTINCTION ON CPR R. 35.2
CASE NOTES
The effect of the fact/opinion
distinction on CPR r. 35.2: Kirkman
vEuro Exide Corporation;Gall vChief
Constable of the West Midlands
By Déirdre Dwyer*
British Academy Postdoctoral Fellow, Pembroke College, Oxford
Keywords Civil Procedure Rules; Civil evidence; Expert evidence; Opinion
evidence; Case management
ne of the main reforms effected by the Civil Procedure Rules 1998 (‘CPR’)
was to restrict the amount of expert evidence introduced into litigation.1
The increasing reliance on expert evidence appears to have arisen
because of a perception that such evidence is generally given significant probative
weight by the tribunal of fact, and that the more experts who testify for a point the
greater the weight that will be given to it. To this end CPR r. 35.1, echoing r. 32.1 on
evidence generally, directs that ‘Expert evidence shall be restricted to that which
is reasonably required to resolve the proceedings’.
Central to the interpretation of the Part 35 regime on expert evidence is r. 35.2: ‘A
reference to an “expert” in this Part is a reference to an expert who has been
instructed to give or prepare evidence for the purpose of court proceedings’. This
distinguishes an expert who advises a party on a specialist matter at any stage of a
problem, dispute or claim, from an expert instructed by a party under the case
management direction of the court.2The rule is not a masterpiece of drafting. The
DOI:1350/ijep.2008.12.2.292
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2008) 12 E&P 141–149 141
O
1 For example, Lord Woolf, Access to Justice: Final Report (HMSO: London, 1996) para. 13.1.
2 Waller LJ (ed.), Civil Procedure (Sweet and Maxwell: London, 2007) (‘The White Book’) para. 35.2.1.
* Email: Deirdre.Dwyer@law.ox.ac.uk.

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