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Q.1 Do the new rules apply to medical negligence and product liability cases?

A.1 Yes. The rules apply to all claims for damages for any type of personal injuries (including fatal injuries) in High Court proceedings commenced on or after 1 September 1997 other than claims that may be brought before a jury, such as claims for damages for assault.

Q.2 Must co-defendants exchange the reports and information under the new rules between themselves as well as with a plaintiff?

A.2 Yes, the rules apply between co-plaintiffs and co-defendants and to other parties to an action such as third parties, and not just between plaintiffs and defendants.

Q.3 A firm of accountants has prepared a report setting out the likely financial losses to my injured client’s farm business over the next five years due to his inability to work more than two hours a day. Must this type of report be exchanged?

A.3 Yes, a report (with photographs, calculations, charts etc. referred to in the report) from any conceivable type of expert intended to be called to give evidence about any issue in the action and which contains the substance of the expert’s evidence comes within the rules.

Q.4 Is proposed expert medical evidence treated differently by the new rules to the evidence of other experts?

A.4 No, the same obligations now apply to all types of experts’ evidence that a party intends to call.

Q.5 Must I disclose and exchange a private investigator’s report under the new rules?

A.5 Probably not. The old rules expressly stated that any report, statement or letter from any private investigator shall not be deemed to be a report within the meaning of those rules. The new rules do not include an equivalent provision, and indeed do not refer to private investigators’ reports or evidence. However, private investigators give evidence of fact, in contrast to expert witnesses who are regarded by the courts as experts on a matter of science or art and who thus are capable of giving expert opinion evidence.

Q.6 If an expert has made a mistake in his report, may I ask him to amend his report and disclose and exchange the corrected version only?

A.6 On a literal interpretation, the initial report or any copy which you have retained containing the error would have to be disclosed and copied to the other parties. However, you could attach to the report a supplementary letter from the expert correcting the mistake. Alternatively, the new rules do not appear to prohibit you from returning the original report to the expert (without taking a copy) and asking him to amend and to return a corrected version.

Q.7. My medical expert has written a covering letter to me with his medical report, setting out his concerns about weaknesses in my client’s case. Am I right in assuming that I don’t have to exchange this under the new rules?

A.7 "Report" is defined widely in the new rules. Therefore a court might interpret the rules as including such a letter, particularly if the court concluded that the report which was provided to the other parties did not reflect the substance of the expert’s opinion.

Q.8 If my expert gives me (along with his more expansive report) a synopsis of his report which sets out the substance of his views, is it sufficient for me to disclose and copy to the other parties the synopsis only?

A.8 It could be argued that providing a synopsis containing the substance of the expert’s evidence would satisfy the rules. However the new rule 46(1) refers to parties exchanging all reports (containing the substance of the expert’s evidence) from experts which a party intends to call. Probably this will mean that a synopsis in those circumstances would not discharge the obligation under the new rules.

Q.9 I have a detailed attendance note on file of a telephone conversation with an expert. It records details of the substance of his opinion and we intend to call him at trial. Must that be disclosed and copied to the other side under the new rules?

A.9 The new rules do not require disclosure and exchange of a solicitor’s attendance notes. Also a solicitor’s correspondence with his client which discusses an expert’s report, or counsel’s opinion dealing with a report, is not subject to the new rules.

Q.10 The defendant’s solicitors have notified that they have no report which requires to be exchanged. I will shortly deliver copies of my experts’ reports to the defence under the new rules. Are the defence entitled to commission experts’ reports after reading my reports?

A.10 The new rules appear to permit this, although presumably the courts will discourage such practice because it would be against the spirit of the new rules. Also all parties - including the plaintiff - may commission other experts’ reports after the initial exchange; if it is intended to call such experts, their reports containing the substance of their evidence must also be exchanged.

Q.11 Is it correct that solicitors will not face personal costs penalties for failure to comply with the new rules?

A.11 The new rules do not provide for costs penalties against solicitors for failure to adhere to the rules. However in the event of non - compliance, the client could suffer serious consequences such as a refusal to permit the adducing of the relevant evidence, or the granting of an adjournment with costs to be paid by the client. In such circumstances any culpable default by the solicitor might result in complaint, or threat of legal action by the client. Also it is at least possible that the court might order the solicitor in default to pay costs personally under O99, r.6 of the RSC, which provides that a solicitor may be ordered to pay costs personally to the other party in the event of neglect, failure or omission which results in a trial not proceeding.

Litigation and Arbitration Committee